Michelle Alexander and the New Jim Crow

Michelle Alexander has written an important book titled The New Jim Crow. The term "Jim Crow" refers to the series of laws passed in southern states after the Civil War in order to maintain blacks in a second-class status. The goal was to institute segregation within a "separate but equal" framework that guaranteed that blacks would be discriminated against educationally, economically, and socially. Black civil rights activists in the ‘60s finally brought about federal legislation that brought these laws to an end. Alexander claims that the "New Jim Crow" was put in place to provide a means in which to keep blacks in a second-class status without breaking existing laws. She identifies the War on Drugs instituted in the ‘80s and the mass incarceration of blacks that ensued as the mechanism by which this was to be accomplished.

Consider these quotes from Alexander:

"Time and again the most ardent proponents of racial hierarchy have succeeded in creating new caste systems by triggering a collapse of resistance across the political spectrum. This feat has been achieved largely by appealing to the racism and vulnerability of lower-class whites, a group of people who are understandably eager to ensure that they never find themselves trapped at the bottom of the American totem pole. This pattern, dating back to slavery, has birthed yet another racial caste system in the United States: mass incarceration."

"....the seeds of the new system of control—mass incarceration—were planted during the civil rights movement itself, when it became clear that the old caste system was crumbling and a new one would have to take its place."

"A new race-neutral language was developed for appealing to old racist sentiments, a language accompanied by a political movement that succeeded in putting the vast majority of backs back in their place. Proponents 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’."

"More than 2 million people found themselves behind bars at the turn of the twenty-first century, and millions more were relegated to the margins of mainstream society, banished to a political and social space not unlike Jim Crow, where discrimination in employment, housing, and access to education was perfectly legal, and where they could be denied the right to vote....The New Jim Crow was born."

Alexander does not quite say it explicitly, but she implies that there is an active, plotting intelligence that created the War on Drugs, produced legislation that imposed incredibly harsh penalties on even recreational drug users, that encouraged—financially—local law enforcement agencies to arrest and incarcerate as many people as possible, that had the Supreme court provide the permission to preferentially arrest blacks, and then passed laws and instituted policies that would guarantee second-class status for life for anyone caught up in this system.

Everything above is true, except—perhaps—for the part about the "active, plotting intelligence."

I came across Alexander’s book just after picking up William J Stuntz’s book: The Collapse of American Criminal Justice. The two together make for a powerful indictment of law enforcement and the legal system in place in the US. Stuntz provides the aerial view, while Alexander reveals what the system looks like to individuals unfortunate enough to be caught up in it. Without explicitly trying to correlate with Alexander’s view, Stuntz describes the social and legal evolution that led to the system Alexander describes. Lest Alexander be accused of exaggeration, we will turn to a staid law professor to provide an explanation that does not require an "active, plotting intelligence," merely circumstances, prejudice, politicians currying favor, and incompetence.

In Stunz’s narrative, captured in Two Migrations: Law, Police, and Urban Blacks, the War on Drugs emerged from a time in which there was a real and significant national crime wave. This period was initially marked by a period in which the effective penalties for crime were exceedingly lenient. This leniency, coupled with Supreme Court decisions aimed at protecting the rights of defendants created a backlash in which it behooved politicians to be "tough on crime." Leniency was replaced by a demand for harsh penalties and a push to sweep criminals off the streets.

Politicians responded with strictly defined laws and severe mandated punishments. The ensuing effect, as described by Stuntz, was captured in Justice and Law in the United States: Ideals and Reality. The net result was that the specificity of the new laws eliminated most discretion on the part of judges and juries, and the harshness of the mandated sentences encouraged—or forced—those arrested to plea bargain to lesser charges rather than take the extreme gamble of a jury trial and a harsh sentence. The system was tremendously efficient in processing large numbers of people very quickly. About 95% of serious crimes are plea bargained. Mass incarceration was born, and trial by a jury of peers died.

Data indicates that about 9% of the population are drug users, roughly constant across whites, blacks and Latinos. That means that police have almost 30 million people to choose from. If one wishes to net a large number of fish one goes to where they expect to find the highest density of specimens. One also wishes to avoid large fish that might be able to bite back and defend themselves. Police have thus preferentially chosen to target urban black neighborhoods. Is this discriminatory? Of course it is. But according to the Supreme Court it is perfectly legal to discriminate in our legal system. Stuntz’s description of how our system has failed to provide equal treatment for blacks is described in The Tragedy of the Fourteenth Amendment: The Supreme Court and the Death of Equality. Consider these legal decisions, as described by Stuntz.

"Armstrong [1996] allows police forces and prosecutors to enforce drug laws in black neighborhoods but not in white ones. McClesky [1987] allows prosecutors and judges to punish crimes that victimize whites more severely than crimes that victimize blacks. Castle Rock [2005] allows law enforcers to ignore violent felonies for any reason or no reason at all, without fear of legal liability. All three fact patterns are paradigmatic failures to provide ‘the equal protection of the laws,’ given the meaning those words had to the men who wrote and ratified them."

All this discrimination is allowed only if it is not racially motivated. But then there is the Court decision that says that the act of racial discrimination is not sufficient, intent of racial discrimination must be proven. And intent can be proven how?—by admission of guilt! Good luck with that.

The last of Alexander’s claims, the institution of policies that would guarantee second-class status for life for anyone caught up in this system, is perhaps the most troubling and the one with the least public awareness. Her description of the fate faced by a convicted felon is described in Law, Punishment, and Retribution: "The Cruel Hand." Therein, was included this passage:

"It is not necessary to serve time in prison in order to be labeled forever a ‘felon,’ it is the conviction that counts. Many who plead guilty to a felony charge of marijuana possession are unaware of what that admission will cost them. This quote from the American Bar Association describes the fate awaiting these individuals."

‘[The] offender may be sentenced to a term of probation, community service, and court costs. Unbeknownst to this offender, and perhaps any other actor in the sentencing process, as a result of his conviction he may be ineligible for many federally funded health and welfare benefits, food stamps, public housing, and federal education assistance. His driver’s license may be automatically suspended, and he may no longer qualify for certain employment and professional licenses....He will not be permitted to enlist in the military, or possess a firearm, or obtain a federal security clearance. If a citizen, he may lose the right to vote....’

And every time he applies for a job he will have to check that box and admit he was convicted of a felony.

Given this history and the current state of affairs is it any wonder that one in the segment suffering discrimination, such as Alexander, could conclude the existence of malevolent forces at work. One can decide for themselves what motives might be in play; the net result is that a racial caste of second-class citizens is being created.

These books by Alexander and Stuntz describe an aspect of our society that is shameful and should not be tolerated. Alexander’s book has gained attention, but it is not likely that Stuntz will be read much beyond the confines of the legal professions. One would hope that the issues they raise generate some sort of public response.

I continue to wait.