Some Reflections and Review of a Book 'The New Jim Crow: Mass Incarceration in the Age of Colorblindness'

It is sometimes said that time “heals” all wounds. Perhaps. But there is a corresponding danger. The passage of time may also enable folks to believe and act on the basis of either sheer ignorance or perhaps denial; and in that form, time can become the enemy of perceiving the steps required for genuine healing. I was born just two years prior to the Supreme Court’s earth-shattering decision in Brown v. Board of Education. So I grew up in the era of the civil rights revolution and have never really lost track of the prevalence of sentiment in that era that was deeply opposed to, and even offended by, the insistence that government was obligated to ensure equality before the law.

By contrast, the four boys I raised all grew up in a time when the rhetoric of both sides of contemporary debate insisted on “color-blindness,” and it was plainly unacceptable to invoke unequivocally racist premises in support of policies that hurt the interests of racial minorities. In this new world, open arguments in favor of white supremacy or clearly reflecting racial animosity were simply unacceptable. We live in a world where Sean Hannity can invoke the selection of African Americans for prestigious cabinet positions in a conservative administration as evidence that only sheer partisanship could explain why civil rights advocates oppose the views and policies of political conservatives. And many conclude that the election of Barack Obama signifies the arrival of a “post-racial” era. Young people raised in a world they perceive as almost devoid of “color consciousness” take such characterizations quite seriously and find the underlying assumptions plausible.

I have had to recount for my boys what it meant to grow up in a world where billboards put together a photograph of Martin Luther King, Jr., sitting at a school desk, with the caption: “Martin Luther King, Jr., at a Communist Training School.” Why in the world, one might logically wonder, might one see it as helpful—or even advantageous to one’s cause—to try to link together America’s sworn enemy, international communism, with the leadership of the movement promoting the civil rights of African Americans. But we should not forget that this billboard characterization merely exhibited an ugly feature of American life after World War II--that “conservatives” too-often worked hard to “conserve” the pattern of racial domination embodied in the nation’s Jim Crow laws, those designed to subordinate all African Americans by legally establishing racial segregation. Treating King as simply a communist who opposed the country’s real interests had the “magic” of linking the most important opponent of America’s racist policies to the nation’s avowed enemies.

Some of this history is nicely summarized in Michelle Alexander’s powerful recent book: The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010). She observes that, in the wake of the Brown decision, “[a] mood of outrage and defiance swept the South,” a mood that “mushroomed into a vicious backlash.” (36) Prominent elected American representatives offered racist polemics where they vowed to fight to maintain Jim Crow by any legal means—and obtained support of 101 of 128 members of Congress from the eleven states that created the Confederacy. (36-37) My boys were surprised to learn that as recently as the late 1960’s courts in Virginia upheld anti-miscegenation laws—laws prohibiting interracial marriage--because they prevented the “mongrelization” of the white race. For defenders of the old worldview, the defeat of Jim Crow presented not only the evil of ending American apartheid, but also constituted a serious blow to the American commitment to law and order. Professor Alexander observes:

For more than a decade—from the mid-1950s until the later 1960s—conservatives systematically and strategically linked opposition to civil rights legislation to calls for law and order, arguing that Martin Luther King Jr.’s philosophy of civil disobedience was a leading cause of crime. In the words of then-Vice President Richard Nixon, the increasing crime rate “can be traced directly to the spread of the corrosive doctrine that every citizen possessed an inherent right to decide for himself which laws to obey and when to disobey them.” Some segregationists went further, insisting that integration causes crime, citing lower crime rates in Southern states as evidence that segregation was necessary. . . . [Representative John Bell Williams stated]: “Segregation is the only answer as most Americans—not the politicians—have realized for hundreds of years.” (41)

The “good news,” Professor Alexander reports, is that the South’s harsh tactics in reaction to the civil rights movement did much to stimulate national support for the efforts that led to the adoption of the 1964 Civil Rights Act and subsequent civil rights legislation. The result, in the long run, has been a growing, and now profound, consensus in favor of the view that assuring equality before the law is an important duty of government. The “bad news,” she suggests, is that a number of the arguments used to oppose overturning Jim Crow could easily be adapted to advancing formally color-neutral legal policies with the purpose and effect of disadvantaging African Americans. So the achievement of a consensus in favor of formal racial equality did not—and does not—assure that in reality government will implement truly neutral policies. Exemplary was that as the ‘60’s came to a close, conservatives came to the point where they “paid lip service to the goal of racial equality but actively resisted desegregation, busing, and civil rights enforcement.” But the more neutral-sounding rhetoric became especially important in developing the political theme of law and order.

Alexander thus observes: “In fact, law and order rhetoric—first employed by segregationists—would eventually contribute to a major realignment of political parties in the United States.” (42-43) Just as one purpose of Jim Crow laws was to drive a wedge between poor whites and African Americans, enabling “lower-class whites to retain a sense of superiority over blacks” (34), political conservatism’s 1960’s-era decision to promote “a southern, racial strategy,” was at least in part an effort “to mobilize the resentment of white working-class voters, many of whom felt threatened by the sudden progress of African Americans.” (45) The neutral-sounding rhetorical center of this southern strategy for the modern conservative political movement became law and order; and a related theme grew into what we now call the “War on Drugs.” (49) What many do not realize is that imprisonment for drug offenses has moved from an estimated 41, 100 in 1980 to approximately a half-million people today—an increase of 1, 100 percent. (59) “Drug arrests have tripled since 1980.” (Id.) The impact of this drug war on the lives of racial minorities in this country has been overwhelming. Blacks are admitted to prison at a rate more than thirteen times that of whites. Yet such “gross racial disparities simply cannot be explained by rates of illegal drug activity among African Americans.” (98)

Considering that “[n]othing has contributed more to the systematic mass incarceration of the people of color in the United States than the War on Drugs” (59), it is critical to bust the drug war’s most common myths. One such myth is that the war’s purpose is to go after “drug ‘kingpins’ or big-time dealers,” when in fact “[t]he vast majority of those arrested are not charged with serious offenses.” (59) Another is the idea that the drug war mainly targets “dangerous drugs,” when arrests for possession of marijuana accounted for nearly 80 percent of drug arrests in the 1990s. (Id.) Alexander observes that “most people in state prison for drug offenses have no history of violence or significant selling activity.” (Id.) Yet “the War on Drugs has ushered in an era of unprecedented punitiveness,” as the percentage of arrests that result in prison sentences—rather than dismissal, community service, or probation—has quadrupled. (Id.) Perhaps most importantly, although “[t]he majority of illegal users and dealers are white,” blacks and Latinos present three fourths of those imprisoned for drug offenses. (96) In general, all races “use and sell illegal drugs” at “similar rates,” and studies actually indicate that white youth “are more likely to engage in illegal drug dealing than people of color.” (97)

The combination of a state of the law that grants remarkable discretion to law enforcement, and law enforcement’s widespread use of racial profiling (130, 132), has functioned in a way that has brought disproportionate negative impacts to blacks, who have become the central targets of the War on Drugs. We have not only experienced the greatest increase in prison inmates of any time in American history (55), but blacks who have been incarcerated for committing drug offenses have also become subject to a troubling range of collateral consequences. For example, the Temporary Assistance to Needy Families (TANF), imposed a “life-time ban on eligibility for welfare and food stamps for anyone convicted of a felony drug offense,” and public housing projects typically exclude those with a criminal history. (56) One consequence of such a conviction is that one’s driver’s license may be automatically suspended, the individual my not qualify for certain professional licenses, may not be able to enlist in the military, possess a firearm, or obtain a federal security clearance. (139-40) Those convicted of serious drug offenses may well be subjected to a system of parole where they can be stopped and searched by police for any reason or no reason at all. (138) After decades of attempting to confront the problem of voting discrimination, a final result of the War on Drugs is that virtually all states preclude voting while one is an inmate, and the “vast majority” of states “withhold the right to vote when prisoners are released on parole.” (153) And even after punishment is complete, including parole, some states deny the right to vote for some years or even the rest of one’s life. (Id.)

Those of us who have confronted the world of drug addiction and treatment are well aware that professionals in those areas emphasize that addiction is a disease—they fear that another perspective will reinforce our tendency to stigmatize those who have become addicts. A frightening dimension of the stigma exploited by those promoting the War on Drugs is the degree to which the stigmatic language itself has become racialized. Little wonder that Professor Alexander identifies the creation of two very different worlds, worlds that continue to support white privilege and to re-create racial hierarchy, as the formation of a “the new Jim Crow.” Little question that there is something especially horrendous about a legally, formally racial caste system that separated the races as a matter of law. That is the Jim Crow system that was alive and well just sixty years ago. But Alexander urges us to consider the “caste system” generated by the combination of our Jim Crow heritage, the urban ghettos that are one of its fruits, and our racialized system for enforcing our legal prohibitions on the use of certain drugs. She contends that “[p]roponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse, by demanding ‘law and order’ rather than ‘segregation forever.’” (40)

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