The New Jim Crow | Reflections & Notes

Michelle Alexander. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The New Press, 2010. (312 pages)

Reflections

For anyone with even a scosh of compassionate humanity, reading this will be difficult, perhaps causing at times outbursts of screaming at the pages, or a walking away from the book out of mere frustration and disillusionment. Those visceral responses provide no catharsis, however, because poetically the challenge before us is to continue to push through, continue to engage, and most importantly, continue to challenge our own emotional fortitude in areas that are deeply uncomfortable, and upend the biases that have been deeply conditioned even within our own souls.

For my “friends” who believe sincerely that “criminal justice” is not oxymoronic–that prison equals guilt–I would ask that you consider your fellow man, their plight, their cries, and their predicament. I would ask that you consider becoming more educated. I would ask that you consider the betterment of our society, and all of our lives as a whole, were we to be, in Mellody Hobson’s phrase, “color-brave.” And, I would sincerely ask that you consider what kind of American, what kind of person do you truly want to be.

For our community, the immediate action item after reading this book was to hold conversations that could begin discussing race through the lens of personal experience. Through those gatherings, we have cried, cursed, awed, and laughed. Most importantly, we have hopefully taken a small step at doing damage to the racist tendencies that reside within us all, and to intentionally step toward healing. Hope is now exemplified through diverse relationships, stronger compassion, and an increase in bravery. Politically, we are working for a shift in the circles that we influence, and a heightened conscience in how we lobby and vote. I can happily report that redemption is still alive, and I’m so thankful and proud of our church for being a small spark of hope and reconciliation in this regard.

From an anthropological perspective, the mental/emotional algorithms that our biology runs when we encounter difference will, as I see it, continue to foster racism and fester societies. This has been proven true with the emergence of “populism” and “nationalism” across our globe. This can be frightening, but should not be surprising. It begs for me the technical question of whether those racial algorithms will continue to better our humanity, or destroy it. This seems like an area of analysis that is worth pursuing.


NOTES

Foreword by Cornel West

In short, this book is a genuine resurrection of the spirit of Martin Luther King Jr. amid the confusion of the Age of Obama. (ix)

Her subtle analysis shifts our attention from the racial symbol of America’s achievement to the actual substance of America’s shame: the massive use of state power to incarcerate hundreds of thousands of precious poor, black, male (and, increasingly, female) young people in the name of a bogus “War on Drugs.” (x)

Preface

This book is not for everyone. I have a specific audience in mind–people who care deeply about racial justice but who, for any number of reasons, do not yet appreciate the magnitude of the crisis faced by communities of color as a result of mass incarceration. In other words, I am writing this book for people like me–the person I was ten years ago. I am also writing it for another audience–those who have been struggling to persuade their friends, neighbors, relatives, teachers, co-workers, or political representatives that something is eerily familiar about the way our criminal justice system operates, something that looks and feels a lot like an era we supposedly left behind, but who have lacked the facts and data to back up their claims. It is my hope and prayer that this book empowers you and allows you to speak your truth with greater conviction, credibility, and courage. Last, but definitely not least, I am writing this book for all those trapped within America’s latest caste system. You may be locked up or lacked out of mainstream society, but you are not forgotten. (xiii)

Introduction

The more things change, the more they remain the same.

What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it. (2)

We have not ended racial cast in America; we have merely redesigned it. (2)

Most people assume the War on Drugs was launched in response to the crisis caused by crack cocaine in inner-city neighborhoods. This view holds that the racial disparities in drug convictions and sentences, as well as the rapid explosion of the prison population, reflect nothing more than the government’s zealous–but benign–efforts to address rampant drug crime in poor, minority neighborhoods. This view, while understandable, given the sensational media coverage of crack in the 1980s and 1990s, is simply wrong. (5)

…the War on Drugs began at a time when illegal drug use was on the decline. (6)

In less than thirty years, the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase. (6)

Studies show that people of all colors use and sell illegal drugs at remarkably similar rates. … In some states, black men have been admitted to prison on drug charges at rates twenty to fifty times greater than those of white men. (7)

…no new institutions for adults should be built and existing institutions for juveniles should be closed. …the prison, the reformatory and the jail have achieved only a shocking record of failure. There is overwhelming evidence that these institutions create crime rather than prevent it. – National Advisory Commission on Criminal Justice, 1973

This book argues that mass incarceration is, metaphorically, the New Jim Crow and that all those who care about social justice should fully commit themselves to dismantling this new racial caste system. Mass incarceration–not attacks on affirmative action or lax civil rights enforcement–is the most damaging manifestation of the backlash against the Civil Rights Movement. The popular narrative that emphasizes the death of slavery and Jim Crow and celebrates the nation’s “triumph over race” with the election of Barack Obama, is dangerously misguided. The colorblind public consensus that prevails in America today–i.e., the widespread belief that (11) race no longer matters–has blinded us to the realities of race in our society and facilitated the mergence of a new caste system. (12)

I use the term racial caste in this book the way it is used in common parlance to denote a stigmatized racial group locked into an inferior position by law and custom. Jim Crow and slavery were caste systems. So is our current system of mass incarceration. (12)

…racial cast systems do not require racial hostility or overt bigotry to thrive. They need only racial indifference, as Martin Luther King Jr. warned more than forty-five years ago. (14)

If we continue to tell ourselves the popular myths about racial progress or, worse yet, fi we say to ourselves that the problem of mass incarceration is just too big, too daunting for us to do anything about and that we should instead direct our energies to battles that might be more easily won, history will judge us harshly. A human rights nightmare is occurring on our watch.

| A new social consensus must be forged about race and the role of race in defining the basic structure of our society, if we hope ever to abolish the New Jim Crow. This new consensus must begin with dialogue, a conversation that fosters a critical consciousness, a key prerequisite to effective social action. This book is an attempt to ensure that the conversation does not end with nervous laughter. (15)

It is not nearly enough to persuade mainstream voters that we have relied too heavily on incarceration nor that drug abuse is a public health problem, not a crime. If the movement that emerges to challenge mass incarceration fails to confront squarely the critical role of race in the basic structure of our society, and if it fails to cultivate an ethic of genuine care, compassion, and concern for every human being–of every class, race, and nationality–within our (18) nation’s borders (including poor whites, who are often pitted against poor people of color), the collapse of mass incarceration will not mean the death of racial caste in America. Inevitably a new system of racialized social control will emerge–one that we cannot foresee, just as the current system of mass incarceration was not predicted by anyone thirty years ago. No task is more urgent for racial justice advocates today than ensuring that America’s current racial caste system is its last. (19)

1. The Rebirth of Caste

The superlative nature of individual black achievement today in formerly white domains is a good indicator that the old Jim Crow is dead, but it does not necessarily mean the end of racial caste. If history is any guide, it may have simply taken a different form. (21)

Any candid observer of American racial history must acknowledge that racism is highly adaptable. (21)

The Birth of Slavery

In an effort to protect their superior status and economic position, the planters shifted their strategy for maintaining dominance. They abandoned their heavy reliance on indentured servants in favor of the importation of more black slaves. Instead of importing English-speaking slaves from the West Indies, who were more likely to be familiar with European language and culture, many more slaves were shipped directly from Africa. These slaves would be far easier to control and far less likely to form alliances with poor whites. (24)

Fearful that such measures might not be sufficient to protect their interests, the planter class took an additional precautionary step, a step that would later come to be known as a “racial bribe.” Deliberately and strategically, the planter class extended special privileges to poor whites in an effort to drive a wedge between them and black slaves. White settlers were allowed greater access to Native American lands, white servants were allowed to police laves through slave patrols and militias, and barriers were created so that free labor would not be place din competition with slave labor. These measures effectively eliminated the risk of future alliances between black slaves and poor whites. Poor whites suddenly had a direct, personal stake in the existence of race-based system of slavery. Their own plight had not improved by much, but at least they were not slaves. Once the planter elite split the labor force, poor whites responded to the logic of their situation and sought ways to expand their racially privileged position. (25)

Before democracy, chattel slavery in America was born. (25)

The language of the Constitution itself was deliberately colorblind (the words slave or Negro were (25) never used), but the document was built upon a compromise regarding the prevailing racial caste system. Federalism–the division of power between the states and the federal government–was the device employed to protect the institution of slavery and the political power of slaveholding states. Even the method for determining proportional representation in Congress and identifying the winner of a presidential election (the electoral college) were specifically developed with the interests of slaveholders in mind. Under the terms of our country’s founding document, slaves were defined as three-fifths of a man, not a real, whole human being. Upon this racist fiction rests the entire structure of American democracy. (26)

The Death of Slavery

Racial division was a consequence, not a precondition of slavery, but once it was instituted it became detached from its initial function and acquired a social potency all its own. –  Wacquant

The impressive legislative achievements of this period [Reconstruction Era] include the Thirteenth Amendment, abolishing slavery; the Civil Rights Act of 1866, bestowing full citizenship upon African Americans; the Fourteenth Amendment, prohibiting states from denying citizens due process and “equal protection of the laws”; the Fifteenth Amendment, providing that the right to vote should not be denied on account of race; and the Ku Klux Klan Acts, which, among other things, declared interference with voting a federal offense and the violent infringement of civil rights a crime. (29)

The Birth of Jim Crow

You are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone of the arch of financial despotism that enslaves you both. You are deceived and blinded that you may not see how this race antagonism perpetuates a monetary system which beggars both. – Tom Watson, a prominent Populist leader

Alarmed by the success of the Populists and the apparent potency of the alliance between poor and working-class whites and African Americans, the conservatives raised the cray of white supremacy and resorted to the tactics they had employed in their quest for Redemption, including fraud, intimidation, bribery, and terror. (34)

As long as poor whites directed their hatred and frustration against the black competitor, the planters were relieved of class hostility directed against them. – William Julius Wilson

History seemed to repeat itself. Just as the white elite had successfully driven a wedge between poor whites and blacks following Bacon’s Rebellion (34) by creating the institution of black slavery, another racial caste system was emerging nearly two centuries later in part due to efforts by white elites to decimate a multiracial alliance of poor people. By the turn of the twentieth century, every state in the South had laws on the books that disenfranchised blacks and discriminated against them in virtually every sphere of life, lending sanction to  racial ostracism that extended to schools, churches, housing, jobs, restrooms, hotels, restaurants, hospitals, orphanages, prisons, funeral homes, morgues, and cemeteries. Politicians competed with each other by proposing and passing ever more stringent, oppressive, and downright ridiculous legislation (such as laws specifically prohibiting black and whites from playing chess together). The public symbols and constant reminders of black subjugation were supported by whites across the political spectrum, though the plight of poor whites remained largely unchanged. For them, the racial bribe was primarily psychological. (35)

The Death of Jim Crow

Brown v. Board of Education, May 17, 1954

Between autumn 1961 and the spring of 1963, twenty thousand men, women, and children had been arrested. In 1963 alone, another fifteen thousand were imprisoned, and one thousand desegregation protests occurred across the region, in more than one hundred cities. (37)

Civil Rights Act of 1964.

The Voting Rights Act of 1965.

As the Civil Rights Movement began to evolve into a “Poor People’s Movement,” it promised to address not only black poverty, but white poverty as well–thus raising the specter of a poor and working-class movement that cut across racial lines. (39)

A similar phenomenon had followed slavery and Reconstruction, as white elites struggled to define a new racial order with the understanding that whatever the new order would be, it could not include slavery. Jim Crow eventually replaced slavery, but now it too had died, and it was unclear what might take its place. Barred by law from invoking race explicitly, those committed to racial hierarchy were forced to search for new means of achieving their goals according to the new rules of American democracy. (40)

History reveals that the seeds of the new system of control were planted well before the end of the Civil Rights Movement. 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 blacks 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.” (40)

The Birth of Mass Incarceration

Southern governors and law enforcement officials often characterized these tactics as criminal and argued that the rise of the Civil Rights Movement was indicative of a breakdown of law and order. Support of civil rights legislation was derided by Southern conservatives as merely “rewarding lawbreakers.” (40)

For more than a decade–from the mid-1950s until the late 1960s–conservatives systematically and strategically linked opposition to civil (40) 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. (41)

This exodus of Negroes from the South, and their influx into the great metropolitan centers of other areas of the Nation, has been accompanied by a wave of crime…What has civil rights accomplished for these areas?…Segregation is the only answer as most Americans–not the politicians–have realized for hundreds of years. – John Bell Williams

Beginning in the 1960s, crime rates rose in the United States for a period of about ten years. Reported street crime quadrupled, and homicide rates nearly doubled. … The reasons for the crime wave are complex but can be explained in large part by the rise of the “baby boom” generation–the spike in the number of young men in the fifteen-to-twenty-four age group, which historically has been responsible for most crimes. The surge of young men in the population was occurring at precisely the same time that unemployment rates for black men were rising sharply, but the economic and demographic factors contributing to rising crime were not explored in the media. Instead, crime reports were sensationalized and offered as further evidence of the breakdown in lawfulness, morality, and social stability in the wake of the Civil Rights Movement. (41)

After the passage of the Civil Rights Act, the public debate shifted focus from segregation to crime. (43)

He [President Nixon] emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to. – H. R. Haldeman

We’ll go after the racists …that subliminal appeal to the anti-black voter was always present in Nixon’s statements and speeches. – John Ehrlichman

[Kevin Phillips] argued in The Emerging Republican Majority [see also Princeton Univeristy Press, and this NY Times article] published in 1969, that Nixon’s successful presidential election campaign could point the way toward long-term political realignment and the building of a new Republican majority, if Republicans continued to campaign primar(44)ily on the basis of racial issues, using coded antiblack rhetoric. He argued that Southern white Democrats had become so angered and alienated by the Democratic Party’s support for civil rights reforms, such as desegregation and busing, that those voters could be easily persuaded to switch parties if those racial resentments could be maintained. (45)

Thus in the the late 1960s and early 1970s, two schools of thought were offered to the general public regarding race, poverty, and the social order. Conservatives argued that poverty was caused not by structural factors related to race and class but rather by culture–primarily black culture. (45)

Liberals, by contrast, insisted that social reforms such as the War on Poverty and civil rights legislation would get at the “root causes” of criminal behavior and stressed the social conditions that predictably generate crime. (45)

The absence of explicitly racist rhetoric afforded the racial nature of his [Reagan’s] coded appeals a certain plausible deniability. For example, when Reagan kicked off his presidential campaign at the annual Neshoba County Fair near Philadelphia, Mississippi–the town where three  civil rights activists were murdered in 1964–he assured the crowd “I believe in states’ rights,” and promised to restore to states and local governments the power that properly belonged to them. His critics promptly alleged that he was signaling a racial message to his audience, suggesting allegiance with those who resisted desegregation, but Reagan firmly denied it, forcing liberals into a position that would soon become familiar–arguing that something is racist but finding it impossible to prove in the absence of explicitly racist language. (48)

In October 1982, President Reagan officially announced hi administration’s War on Drugs. At the time he declared this new war, less than 2 percent of the American public viewed drugs as the most important issue facing the nation. This fact was no deterrent to Reagan, for the drug war from the outset had little to do with public concern about drugs and much to do with public concern about race. By waging a war on drug users and dealers, Reagan made good on his promise to crack down on the racially defined “others”–the underserving. (49)

The impact of globalization and deindustrialization was felt most strongly in lack inner-city communities. (50)

One study indicates that as late as 1970, more than 70 percent of all blacks work(50)ing in metropolitan areas held blue-collar jobs. Yet by 1987, when the drug war hit high gear, the industrial employment of black men had plummeted to 28 percent. (51)

Joblessness and crack swept inner cities precisely at the moment that a fierce backlash against the Civil Rights Movement was manifesting itself through the War on Drugs. (51)

No one should ever attempt to minimize the harm caused by crack cocaine and the related violence. As David Kennedy correctly observes, “[c]rack blew through America’s poor black neighborhoods like the Four Horsemen of the Apocalypse,” leaving behind unspeakable devastation and suffering. As a nation, though, we had a choice about how to respond. (51)

Numerous paths were available to us, as a nation, in the wake of the crack crisis, yet for reasons traceable largely to racial politics and fear mongering we chose war. Conservatives found they could finally justify an all-out war on an “enemy” that had been racially defined years before. (52)

If we blame crime on crack, our politicians are off the hook. Forgotten are the failed schools, the malign welfare programs, the desolate neighborhoods, the wasted years. Only crack is to blame. One is tempted to think that if crack did not exist, someone somewhere would have received a Federal grant to develop it. – Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (111), citing Congressional Record 132 (Sept. 24, 1986): S 13741

The War on Drugs, cloaked in race-neutral language, offered whites opposed to racial reform a unique opportunity to express their hostility toward blacks and black progress, without being exposed to the charge of racism. (54)

In the 1890s, Populists buckled under the political pressure created by the Redeemers, who had successfully appealed to poor and working-class whites by proposing overtly racist and increasingly absurd Jim Crow laws. Now, a new racial caste system–mass incarceration–was taking hold, as politicians of every stripe competed with each other to win the votes of poor and working-class whites, whose economic status was precarious, at best, and who felt threatened by racial reforms. (55)

As law enforcement budgets exploded, so did prison and jail populations. (56)

As the Justice Policy Institute has observed, “the Clinton Administration’s ‘tough on crime’ policies resulted in the largest increases in federal and state prison inmates of any president in American history. (56)

Personal Responsibility and Work Opportunity Reconciliation Act

2. The Lockdown

Convictions for drug offenses are the single most important cause of the explosion in incarceration rates in the United States. Drug offenses alone account for two-thirds of the rise in the federal inmate population and more than half of the rise in the federal inmate population and more than half of the rise in state prisoners between 1985 and 2000. (60)

…there are more people in prisons and jails today just for drug offenses than were incarcerated for all reasons in 1980. (60)

Before we begin our tour of the drug war, it is worthwhile to et a couple of myths out of the way. The first is that the war is aimed at ridding the nation of drug “kingpins” or big-time dealers. Nothing could be further from the truth. The vast majority of those arrested are not charged with serious offenses. In 2005, for example, four out of five drug arrests were for possession, and only one out of five was for sales. Moreover, most people in state prison for drug offenses have no history of violence or significant selling activity.

| The second myth is that the drug war is principally concerned with dangerous drugs. Quite to the contrary, arrests for marijuana possession–a drug less harmful than tobacco or alcohol–accounted for nearly 80 percent of the growth in drug arrests in the 199s. Despite the fact that most drug arrests are for nonviolent minor offenses, the War on Drugs has ushered in an era of unprecedented punitiveness. (60)

Rules of the Game

Few legal rules meaningfully constrain the police in the War on Drugs. (61)

Unreasonable Suspicion

…grant[ing]police greater power than a magistrate [judge] is to take a long step down the totalitarian path. – Justice Douglass, dissent, Terry v. Ohio

Just Say No

Florida v. Bostick

Common sense teaches that most of us do not have the chutzpah or stupidity to tell a police officer to ‘get lost’ after he has stopped us and asked us for identification or questioned us about possible criminal conduct. – Tracey Maclin

Studies have shown that Maclin’s common sense is correct: the overwhelming majority of people who are confronted by police and asked questions respond, and when asked to be searched, they comply. (66)

This is no secret to the Supreme Court. The Court long ago acknowledged that effective use of consent searches by the police depends on the ignorance (and powerlessness) of those who are targeted. In Schneckloth v. Bustamonte, decided in 1973, the Court admitted that if waiver of one’s right to refuse consent were truly “knowing, intelligent, and voluntary,” it would “in practice create serious doubt whether consent searches would continue to be conducted.” In other words, consent searches are valuable tolls for the police only because hardly anyone dares to say no. (66)

Poor Excuse

A classic pretext stop is a traffic stop motivated not by any desire to enforce traffic laws, but instead motivated by a desire to hunt for drugs in the absence of any evidence of illegal drug activity. In other words, police officers use minor traffic violations as an excuse–a pretext–to search for drugs, even though there is not a shred of evidence suggesting the motorist is violating drug laws. (67)

The Supreme Court rejected their argument, ruling that an officer’s motivations are irrelevant when evaluating the reasonableness of police activity under the Fourth Amendment. It does not matter, The Court declared, why the police are stopping motorists under the Fourth Amendment, so long as some kind of traffic violation gives them an excuse. The fact that the Fourth Amendment was specifically adopted by the Founding Fathers to prevent arbitrary stops and searches was deemed unpersuasive. The Court ruled that the police are free to use minor traffic violations as a pretext to conduct drug investigations, even when there is no evidence of illegal drug activity. (68)

Ohio v. RobinetteAtwater v. City of Lago Vista

Kissing Frogs

Operation Pipeline is exactly what the Framers meant to prohibit: a federally-run general search program that targets people without cause for suspicion, particularly those who belong to disfavored groups. – Ricardo Bascuas

It Pays to Play

Still, it is fair to wonder why the police would choose to arrest such an astonishing percentage of the American public for minor drug crimes. The fact that police are legally allowed to engage in a wholesale roundup of nonviolent drug offenders does not answer the question why they would choose to do so, particularly when most police departments have far more serious crimes to prevent and solve. Why would police prioritize drug-law enforcement? Drug use and abuse is nothing new; in fact it was on the decline, not on the rise, when the War on Drugs began. So why make drug-law enforcement a priority now?

| Once again, the answer lies in the system’s design. Every system of control depends for its survival on the tangible and intangible benefits that are provided to those who are responsible for the system’s maintenance and administration. This system is no exception. (72)

The new system of control is traceable, to a significant degree, to a massive bribe offered to state and local law enforcement by the federal government. (73)

Waging War

The transformation from “community policing” to “military  policing,” began in 1981, when President Reagan persuaded Congress to pass the Military Cooperation with Law Enforcement Act, which encouraged the military to give local, state, and federal police access to military bases, intelligence, research, weaponry, and other equipment for drug interdiction. That legislation carved a huge exception to the Posse Comitatus Act, the Civil War-era law prohibiting the use of the military for civilian policing. (77)

Finders Keepers

…state and local law enforcement agencies were granted the authority to keep, for their own use, the vast majority of cash and assets they seize when waging the drug war. This dramatic change in policy gave state and local police an enormous stake in the War on Drugs–not in it success, but in its perpetual existence. (78)

Comprehensive Drug Abuse Prevention and Control Act

The Shakedown

The greatest failure of the Reform Act, however, has nothing to do with one’s due process rights once property has been seized in a drug investigation. Despite all of the new procedural rules and formal protections, the law does not address the single most serious problem associated with drug-war forfeiture laws: the profit motive in drug-law enforcement. Under the new law, drug busts motivate by the desire to seize cash, cars, homes, and other property are still perfectly legal. (83)

Obama honored his word following the election, drastically increasing funding fo the Byrne grant program despite its abysmal track record. The Economic Recovery Act of 2009 included more than $2 billion in new Byrne funding and an additional $600 million to increase state and local law enforcement across the country. Relatively little organized opposition to the drug war currently exists, and any dramatic effort to scale back the war may be publicly condemned as “soft” on crime. The war has become institutionalized. It is no longer a special program or politicized project; it is simply the way things are done. (84)

Legal Misrepresentation

There is a real disconnect in this country between what people perceive is the state of indigent defense and what it is. I attribute that to shows like Law & Order, where the defendant says, ‘I want a lawyer,’ and all of a sudden Legal Aid appears in the cell. That’s what people think. – David Carroll

Bad Deal

Almost no one ever goes to trial. Nearly all criminal cases are resolved through plea bargaining–a guilty plea by the defendant in exchange for some form of leniency by the prosecutor. Though it is not widely known, the prosecutor is the most powerful law enforcement official in the criminal justice system. One might think that judges are the most powerful, or even the police, but in reality the prosecutor holds the cards. It is the prosecutor, far more than any other criminal justice official, who holds the keys to the jailhouse door. (87)

Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause but which they seriously doubt they could ever win in court. They “load up” defendants with charges that carry extremely harsh sentences in order to force them to plead guilty to lesser offenses and–here’s the kicker–to obtain testimony for a related case. Harsh sentencing laws encourage people to snitch. (88)

…the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge. – The U.S. Sentencing Commission

Describing severe mandatory sentences as a bargaining chip is a major understatement, given its potential for extracting guilty pleas from people who are innocent of any crime. (88)

The real point here, however, is not that innocent people are locked up. That has been true since penitentiaries first opened in America. The critical point is that thousands of people are swept into the criminal justice system every year pursuant to the drug war without much regard for their guilt or innocence. The police are allowed by the courts to conduct fishing expeditions for drugs on streets and freeways based on nothing more than a hunch. (89)

Time Served

When judges have discretion, they may consider a defendant’s background and impose a lighter penalty if the defendant’s personal circumstances–extreme poverty or experience of abuse, for example–warrant it. This flexibility–which is important in all criminal cases–is especially important in drug cases, as studies have indicated that many drug defendants are using or selling to support an addiction. Referring a defendant to treatment, rather than sending him or her to prison, may well be the most prudent choice–saving government resources and potentially saving the defendant (89) from a lifetime of addiction. Likewise, imposing a short prison sentence (or none at all) may increase the chances that the defendant will experience successful re-entry. A lengthy prison term may increase the odds that re-entry will be extremely difficult, leading to relapse, and re-imprisonment. Mandatory drug sentencing laws strip judges of their traditional role of considering all relevant circumstances in an effort to do justice in the individual case. (90)

The Prison Label

Once a person is labeled a felon, he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal, and privileges of citizenship such as voting and jury service are off-limits. (94)

Merely reducing prison terms does not have a major impact on the majority of people in the system. It is the badge of inferiority–the felony record–that relegates people for their entire lives, to second-class status. (94)

Unless the number of people who are labeled felons is dramatically reduced, and unless the laws and policies that keep ex-offenders marginalized from the mainstream society and economy are eliminated, the system will continue to create and maintain an enormous undercaste. (96)

3. The Color of Justice

Thus the very same year Human Rights Watch was reporting that African Americans were being arrested and imprisoned at unprecedented rates, government data revealed that blacks were no more likely to be guilty of drug crimes than whites and that white youth were actually the most likely of any racial or ethnic group to be guilty of illegal drug possession and sales. Any notion that drug use among black is more severe or dangerous is belied by the data; white youth have about three times the number of drug-related emergency room visits as their African American counterparts. (99)

The uncomfortable reality is that arrests and convictions for drug offenses–not violent crime–have propelled mass incarceration. (102)

How could the War on Drugs operate in a discriminatory manner, on such a large scale, when hardly anyone advocates or engages in explicit race discrimination? That question is the subject of this chapter. (102)

A bit of common sense is overdue in public discussions about racial bias in the criminal justice system. … What is painfully obvious when one steps back from individual cases and specific policies is that the system of mass incarceration operates with stunning efficiency to sweep people of color off the streets, lock them in cages, and then release them into an inferior second-class status. Nowhere is this more true than in the War on Drugs.

| The central question, then is how exactly does a formally colorblind criminal justice system achieve such racially discriminatory results? Rather easily, it turns out. The process occurs in two stages. The first step is to grant law enforcement officials extraordinary discretion regarding whom to stop, search, arrest, and charge for drug offenses, thus ensuring that conscious and unconscious racial beliefs and stereotypes will be given free reign. … Then, the damning step: Close the courthouse doors to all claims by defendants and private litigants that the criminal justice system operates in racially discriminatory fashion. Demand that anyone who wants to challenge racial bias in the system offer, in advance, clear proof that the racial disparities are the product of intentional racial discrimination–i.e., the work of a bigot. (103)

Picking and Choosing–The Role of Discretion

It is unnecessary to speak directly of race [today] because speaking about crime is talking about race. – Melissa Hickman Barlow

A survey was conducted in 1995 asking the following question: “would you close your eyes for a second, envision a drug user, and describe that person to me?” … Ninety-five percent of respondents pictured a black drug user, while only 5 percent imagined other racial groups. (106)

There is no reason to believe that the survey results would have been any different if police officers or prosecutors–rather than the general public–had been the respondents. (106)

One study suggests that the standard crime news “script” is so prevalent and so thoroughly racialized that viewers imagine a black perpetrator even when none exists. In that study, 60 percent of viewers who saw a story with no image falsely recalled seeing one, and 70 percent of those viewers believed the perpetrator to be African American. [Franklin D. Gilliam and Shanto Iyengar, “Prime Suspects: The Influence of Local Television News on the Viewing Public,” American Journal of Political Science 44 (2000): 560-73.] (106)

Decades of cognitive bias research demonstrates that both unconscious and conscious biases lead to discriminatory actions, even when an individual does not want to discriminate. (106)

Most striking, perhaps, is the overwhelming evidence that implicit bias measures are disassociated from explicit bias measures. … Implicit bias tests may still show that you hold negative attitudes and stereotypes about blacks, even though you don’t believe you do and do not want to. (107)

…a fairly consistent finding is that punitiveness and hostility almost always increase when people are primed–even subliminally–with images or verbal cues associated with African Americans. In fact, studies indicate that people become increasingly harsh when an alleged criminal is darker and more “stereotypically black”; they are more lenient when the accused is lighter and appears more stereotypically white. This is true of jurors as well as law enforcement officers. (107)

Viewed as a whole, the relevant research by cognitive and social psychologists to date suggests that racial bias in the drug war was inevitable, once a public consensus was constructed by political and media elites that drug crime is black and brown. (107)

Whren v. United States.

Closing the Courthouse Doors–McCleskey v. Kemp

The real issue at hand was whether–and to what extent–the Supreme Court would tolerate racial bias in the criminal justice system as a whole. The Court’s answer was that racial bias would be tolerated–virtually to any degree–so long as no one admitted it. (109)

Buy a one-vote margin the Court rejected McCleskey’s claim under the Fourteenth Amendment, insisting that unless McCleskey could prove that the prosecutor in his particular case had sought the death penalty because of race or that the jury had imposed it for racial reasons, the statistical evidence of race discrimination in George’s death penalty system did not prove unequal treatment under the law. The Court accepted the statistical evidence as valid but insisted that evidence of conscious, racial bias in McCleskey’s individual case was necessary to prove unlawful discrimination. In the absence of such evidence, patterns of discrimination–even patterns as shocking as demonstrated by the Baldus study–did not violate the Fourteenth Amendment. (110)

In erecting this high standard, the Court knew full well that the standard could not be met absent an admission that a prosecutor o judge acted because of racial bias. The majority opinion openly acknowledged that long-standing rules generally bar litigants from obtaining discovery from the prosecution regarding charging patterns and motives, and that similar rules forbid introduction of evidence of jury deliberations even when a juror has chosen to make deliberations public. The very evidence that the Court demanded in McCleskey–evidence of deliberate bias in his individual case–would almost always be unavailable and/or inadmissible due to procedural rules that shield jurors and prosecutors from scrutiny. (110)

There is good reason to believe that, despite appearances, the McCleskey decision was not really about the death penalty at all; rather, the COurt’s opinion was driven by a desire to immunize the entire criminal justice system from claims of racial bias. … no one admits to racial bias. (111)

Cracked Up–Discriminatory Sentencing in the Warn on Drugs

The presumption of innocence is now a legal myth. … The 100-to-1 ratio, coupled with mandatory minimum sentencing provided by federal statute, has created a situation that reeks with inhumanity and injustice. … If young white males were being incarcerated at the same rate as young black males, the statute would have been amended long ago – Judge Clyde Cahill

Charging Ahead–Armstrong v. United States

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations, between persons in similar circumstances…the denial of equal justice is still within the prohibition of the Constitution. – Yick Wo v. Hopkins118 U.S. 356, 373-74 (1886)

It is difficult to imagine a system better designed to ensure that racial biases and stereotypes are given free rein–while at the same time appearing on the surface to be colorblind–than the one devised by the U.S. Supreme Court. (119)

In Defense of the All-White Jury–Purkett v. Elm

How can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of his color alone, however well qualified in other respects, is not a denial to him of equal protection? – Strauder v. West Virginia, 100 U.S. 303, 308 (1880)

In theory, peremptory strikes may increase the fairness of the proceeding by eliminating jurors who may be biased but whose biases cannot be demonstrated convincingly to a judge. In practice, however, peremptory challenges are notoriously discriminatory. Lawyers typically have little information about potential jurors, so their decisions to strike individual jurors tend to be based on nothing more than stereotypes, prejudices, and hunches. (121)

The Occupation–Policing the Enemy

It’s a lot easier to go out to the ‘hood, so to speak, and pick somebody than to put your resources in an undercover [operation in a] community where there are potentially politically powerful people. – See Lynn Lu, “Prosecutorial Discretion and Racial Disparities in Sentencing: Some Views of Former U.S. Attorneys,” Federal Sentencing Reporter 19 (Feb. 2007): 192.

Even putting aside such concerns, though, recent research indicates that the basic assumptions upon which drug war defenses typically rest are simply wrong. The conventional wisdom–that “get tough” tactics are a regrettable necessity in poor communities of color and that efficiency requires the drug war to be waged in the most vulnerable neighborhoods–turns out to be, as many have long suspected, nothing more than wartime propaganda, not sound policy. (126)

Unconventional Wisdom

Hollow Hope

Race as a Factor

The dirty little secret of policing is that the Supreme Court has actually granted the police license to discriminate. (130)

United States v. Brignoni-Ponce

The justification for the implicit doublespeak–“we do not racial-profile; we just stop people based on race”–can be explained in part by the Supreme Court’s jurisprudence. Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe that racial profiling exists only when race is the sole factor. Thus, if race is one factor but not the only factor, then it doesn’t really count as a factor at all. (131)

The problem is that although race is rarely the sole reason for a stop or search, it is frequently a determinative reason. (131)

…”the circular illogic of racial profiling.” Law enforcement officials, he [the former New Jersey attorney general] explained, often point to the racial composition of our prisons and jails as a justification for targeting racial minorities, but the empirical evidence actually suggested the opposite conclusion was warranted. The disproportionate imprisonment of people of color was, in part, a product of racial profiling–not a justification for it. (134)

Like the days when black men were expected to step off the sidewalk and cast their eyes downward when a white woman passed, young black men knew the drill when they see the police crossing the street toward them; it is a ritual of dominance and submission played out hundreds of thousands of times each year. But it is more than that. These routine encounters often serve as the gateway into the criminal justice system. (136)

The End of an Era

The Supreme Court has now closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing. The system of mass incarceration is now, for all practical purpose, thoroughly immunized form claims of racial bias. (139)

4. The Cruel Hand

A heavy and cruel hand has been laid upon us. As a people, we feel ourselves to be not only deeply injured, but grossly misunderstood. Our white countrymen do not know us. They are strangers to our character, ignorant of our capacity, oblivious to our history and progress, and are misinformed as to the principles and ideas that control and guide us, as a people. The great mass of American citizens estimates us as being a characterless and purposeless people; and hence we hold up our heads, if at all, against the withering influence of a nation’s scorn and contempt. – Frederick Douglass, in a statement on behalf of delegates to the National Colored Convention held in Rochester, New York, in July 1853

Criminals, it turns out, are the one social group in America we have permission to hate. (141)

Brave New World

No Place Like Home

Boxed In

Even beyond the need to comply with the conditions of parole, employment satisfies a more basic human need–the fundamental need to be self sufficient, to contribute, to support one’s family, and to add value to society at large. (148)

The “box” she refers to is the question on job applications in which applicants are asked to check “yes” or “no” if they have ever been convicted of a crime. (149)

Employers in a growing number of professions are barred by state licensing agencies from hiring people with a wide range of criminal convictions, even convictions unrelated to the job or license sought. (149)

The result of these discriminatory laws is that virtually every job application, whether for dog catcher, bus driver, Burger King cashier, or accountant, asks ex-offenders to “check the box.” (149)

About 70 percent of offenders and ex-offenders are high school dropouts, and according to at least one study, about half are functionally illiterate. (150)

The Black Box

This research suggests that banning the the box is not enough. We must also get rid of the mind-set that puts black men “in the box.” This is no small challenge. (153)

[EEOC, and Title VII]

Debtor’s Prison

Let Them Eat Cake

The Silent Minority

 

Only two states–Maine and Vermont–permit inmates to vote. (158)

The Pariahs

…the biggest problem the black community may face today is not “shamelessness” but rather the severe isolation, distrust, and alienation created by mass incarceration. (165)

Eerie Silence

Braman reported that “when I asked participants [in the study] if they knew of other people in the neighborhood, many did know of one or two out of the dozens of households on the block that had members incarcerated but did not feel comfortable talking with others.” This type of phenomenon has been described in the psychological literature as pluralistic ignorance, in which people misjudge the norm. (166)

Passing (Redux)

Lying about incarcerated family members is another common coping strategy–a form of passing. Whereas light-skinned blacks during the Jim Crow era sometimes cut off relations with friends and family in an effort to “pass” as white and enjoy the upward mobility and privilege associated with whiteness, today many family members of prisoners lie and try to hide the status of their relatives in an effort to mitigate the stigma of criminality. (167)

We have no significant understanding of any culture unless we also know the silences that were institutionally created and guaranteed along with it. – Gerald Sider

Gangsta Love

…safe streets, peaceful communities, healthy families, good jobs, and meaningful opportunities to contribute to society. The notion that ghetto families do not, in fact, want those things, and instead are perfectly content to live in crime-ridden communities, feeling no shame or regret about the fate of their young men is, quite simply, racist. It is impossible to imagine that we would believe such a thing about whites. (170)

The more difficult answer–the more courageous one–is to say yes, yes we should be concerned about the behavior of men trapped in ghetto communities, but the deep failure of morality is our own. (170)

…are we willing to cast ourselves as a society that creates crimogenic conditions for some of its members, and then acts-out rituals of punishment against them as if engaged in some awful form of human sacrifice? – Glenn Loury

There is absolutely nothing abnormal or surprising about a severely stigmatized group embracing their stigma. Psychologists have long observed that when people fee hopelessly stigmatized, a powerful coping strategy–often the only apparent route to self-esteem–is embracing one’s stigmatized identity. Hence, “black is beautiful” and “gay pride”–slogans and anthems of political movements aimed at ending not only legal discrimination, but the stigma that justified it. Indeed, the act of embracing one’s stigma is never merely a psychological maneuver; it is a political act–an act of resistance and defiance in a society that seeks to demean a group based on an inalterable trait. As a gay activist once put it, “Only by fully embracing the stigma itself can one neutralize the sting and make it laughable.” (See James Thomas Sears, Growing Up Gay in the South: Race, Gender, and Journeys of the Spirit, New York: Routledge, 1991, 257)

The Minstrel Show

The Antidote

When the system of mass incarceration collapses (and if history is any guide, it will), historians will undoubtedly look back and marvel that such an extraordinarily comprehensive system of racialized social control existed in the United States. (175)

As a society, our decision to heap shame and contempt upon those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them. (176)

You gotta hate the crime, but love the criminal.

This is not a mere platitude; it is a prescription for liberation. If we had actually learned to show love, care, compassion, and concern across racial lines during the Civil Rights Movement–rather than go colorblind–mass incarceration would not exist today. (177)

5. The New Jim Crow

If we are honest with ourselves, we’ll admit that too many fathers are missing–missing from too many lives and too many homes. Too many fathers are MIA. Too many fathers are AWOL. They have abandoned their responsibilities. They’re acting like boys instead of men. And the foundations of our families are weaker because of it. You and I know this is true everywhere, but nowhere is this more true than in the African American community. – President Obama

The media did not ask–and Obama did not tell-where the missing fathers might be found. (179)

Hundreds of thousands of black men are unable to be good fathers for their children, not because of a lack of commitment or desire but because they are warehoused in prisons, locked in cages. They did not walk out on their families voluntarily; they were taken away in handcuffs, often due to a massive federal program known as the War on Drugs. (180)

We may wonder aloud “where have the black men gone?” but deep down we already know. It is simply taken for granted that, in cities like Baltimore and Chicago, the vast majority of young black men are currently under the control of the criminal justice system or branded criminals for life. This extraordinary circumstance–unheard of in the rest of the world–is treated here in America as a basic fact of life, as normal as separate water fountains were just a half century ago. (181)

States of Denial

Of all the reasons that we fail to know the truth about mass incarceration, though, one stands out: a profound misunderstanding regarding how racial oppression actually works. …most people assume that racism, and racial systems generally, are fundamentally a function of attitudes. Because mass incarceration is officially colorblind, it seems inconceivable that the system could function much like a racial caste system. (183)

structural racism … If one things about racism by examining only one wire of the cage, or one form of disadvantage, it is difficult to understand how and why the bird is trapped. Only a large number of wires arranged in a specific way, and connected to one another, serve to enclose the bird and to ensure that it cannot escape. (184)

One way of understanding our current system of mass incarceration is to think of it as a birdcage with a locked door. (185)

How It Works

The conviction marks the beginning of the second phase: the period of formal control. (186)

The final stage has been dubbed by some advocates as the period of invisible punishment. (186)

Nothing New?

The nature of the criminal justice system has changed. It is no longer concerned primarily with the prevention and punishment of crime, but rather with the management and control of the dispossessed. (188)

Mapping the Parallels

There are important differences (190) between mass incarceration and Jim Crow, to be sure–many of which will be discussed later–but when we step back and view the system as a whole, there is a profound sense of déjà vu. (191)

Historic parallels. As described in chapter 1, both caste systems were born, in part, due to a desire among white elites to exploit the resentments, vulnerabilities, and racial biases of poor and working-class whites for political or economic gain. (191)

Legalized discrimination. The most obvious parallel between Jim Crow and mass incarceration is legalized discrimination. (191)

Political disenfranchisement. Felon disenfranchisement laws have been more effective in eliminating black voters in the age of mass incarceration than they were during Jim Crow. (193)

Exclusion from juries.

Closing the courthouse doors. The Supreme Court’s famous proclamation in 1857–“[the black man] has no rights which the white man is bound to respect”–remains true to a significant degree today, so long as the black man has bene labeled a felon. [See Dred Scott v. Sandford, 60 U.S. (How. 19) 393 (1857)] (194)

Racial segregation. Prisoners are thus hidden from public view–out of sight, out of mind. In a sense, incarceration is a far more extreme form of physical and residential segregation than Jim Crow segregation. Rather than merely shunting black people to the other side of town or corralling them in ghettos, mass incarceration locks them in cages. Bars and walls keep hundreds of thousands of black and brown people away from mainstream society–a form of apartheid unlike any the world has ever seen. (195)

Symbolic production of race. Indeed, a primary function of any racial caste system is to define the meaning of race in its time. Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black.

| The temptation is to insist that black men “choose” to be criminals; the system does not make them criminals, at least not in the way that slavery made blacks slaves or Jim Crow made them second-class citizens. The myth of choice here is seductive, but it should be resisted. African Americans are not significantly more likely to use or sell prohibited drugs than whites, but they are made criminals at drastically higher rates for precisely the same conduct. In fact, studies suggest that white professionals may be the most likely of any group to have engaged in illegal drug activity in their lifetime, yet they are the least likely to be made criminals. The prevalence of illegal drug activity among all racial and ethnic groups creates a situation in which, due to limited law enforcement resources and political constraints, some people are made criminals while others are not. Black people have been made criminals by the War on Drugs to a degree that dwarf its effect on other racial and ethnic groups, especially whites. And the process of making them criminals has produced racial stigma. (197)

An experiment may help to illustrate how and why this is the case. Say the following to nearly anyone and watch the reaction: “We really need to do something about the problem of white crime.” … Because the term white crime lacks social meaning, the term white criminal is also perplexing. In that formulation, white seems to qualify the term criminal–as if to say, “he’s a criminal but not that kind of criminal.” Or, he’s not a real criminal–i.e., not what we mean by criminal today. (198)

We can be perfect, perfect, doing everything right and still they treat us like dogs. No, worse than dogs, because criminals are treated worse than dogs.

How can you tell us we can be anything when they treat us like we’re nothing?

The Limits of the Analogy

Absence of racial hostility. But even granting that some African Americans may fear the police today as much as their grandparents feared the Klan (as a wallet can be mistaken for a gun) and that the penal system may be as brutal in many respects as Jim Crow (or slavery), the absence of racial hostility in the public discourse and the steep decline in vigilante racial violence is not small matter. It is also (202) significant that the “whites only” signs are gone and that children of all colors can drink from the same water fountains, swim in the same pools, and play on the same playgrounds. Black children today can even dream of being president of the United States. (203)

Those who claim that mass incarceration is “just like” Jim Crow make a serious mistake. Things have changed. 203)

This difference in public attitudes has important implications for reform efforts. Claims that mass incarceration is analogous to Jim Crow will fall on deaf ears and alienate potential allies if advocates fail to make clear that the claim is not meant to suggest or imply that supporters of the current system are racist in the way Americans have come to understand that term. Race plays a major role–indeed, a defining role–in the current system, but not because of what is commonly understood as old-fashioned, hostile bigotry. This system of control depends far more on racial indifference (defined as a lack of compassion and caring about race and racial groups) than racial hostility–a feature it actually shares with its predecessors. (203)

All racial caste systems, not just mass incarceration, have been supported by racial indifference. (203)

Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity. – MLK

White victims of racial caste. What kind of racial caste system includes white people within its control? The answer: a racial caste system int he age of colorblindness. (204)

In short, the inclusion of some whites in the system of control is (204) essential to preserving the image of a colorblind criminal justice system and maintaining our self-image as fair and unbiased people. Because most Americans, including those within law enforcement, want to believe they are non-racist, the suffering in the drug war crosses the color line. (205)

Black support for “get tough” policies. The fact that some black people endorse harsh responses to crime is best understood as a form of complicity with mass incarceration–not support for it. This complicity is perfectly understandable, for the threat posed by crime–particularly violent crime–is real, not imagined. (210)

Disagreements within the African American community about how best to respond to systems of control–and even disagreements about what is, and is not, discriminatory–have a long history (211)

The genius of the current caste system, and what most distinguishes it from its predecessors, is that it appears voluntary. People choose to commit crimes, and that’s why they are locked up or locked out, we are told. This feature makes the politics of responsibility particularly tempting, as it appears the system can be avoided with good behavior. But herein lies the trap. All people make mistakes. All of us are sinners. All of us are criminals. All of us violate the law at some point in our lives. In fact, if the worst thing you have ever done is speed ten miles over the speed limit on the freeway, you have put yourself and others at more risk of harm than someone smoking marijuana in the privacy of his or her living room. Yet there are people in the United States serving life sentences for first-time drug offenses, something virtually unheard of anywhere else in the world. (215)

Fork in the Road

…the burden belongs to the nation, and the hands of none of us are clean if we bend not our energies to righting these great wrongs. – W. E. B. Du Bois

…a nation is a choice – Lerone Bennett Jr.

We could choose to be a nation that extends care, compassion, and concern to those who are locked (217) up and locked out or headed for prison before they are old enough to vote. We could seek for them the same opportunities we seek for our own children; we could treat them like one of “us.” We could do that. Or we can choose to be a nation that shames and blames its most vulnerable, affixes badges of dishonor upon them at young ages, and then relegates them to a permanent second-class status for life. That is the path we have chosen, and it leads to a familiar place. (218)

It is fair to say that we have witnessed an evolution in the United States from a racial caste system based entirely on exploitation (slavery), to one based largely on subordination (Jim Crow), to one defined by marginalization (mass incarceration). (219)

It’s actually better to be exploited than marginalized, in some respects, because if you’re exploited presumably you’re still needed. – john a. powell

6. The Fire This Time

Any racial justice movement, to be successful, must vigorously challenge the public consensus that underlies the prevailing system of control. Nooses, racial slurs, and overt bigotry are widely condemned by people across the political spectrum; they are understood to be remnants of the past, no longer reflective of the prevailing public consensus about race. Challenging these forms of racism is certainly necessary, as we must always remain vigilant, but it will do little to shake the foundations of the current system of control. The new caste system, unlike its predecessors, is officially colorblind. We must deal with it on its own terms. (223)

Rethinking Denial–Or, Where Are Civil Rights Advocates When You Need Them?

Dealing with this system on its own terms is complicated by the problem of denial. Few Americans today recognize mass incarceration for what it is: a new caste system thinly veiled by the cloak of colorblindness. … Our collective denial is not merely an inconvenient fact; it is a major stumbling block to public understanding of the role of race in our society, and it sharply limits the opportunities for truly transformative collective action. (223)

The prevailing public consensus affects everyone, including civil rights advocates. Those of us in the civil rights community are not immune to the racial stereotypes that pervade media imagery and political rhetoric; nor do we operate outside of the political context. Like most people, we tend to resist believing that we might be part of the problem. (224)

One reason so many people have a false impression of the economic well-(228) being of African Americans, as a group, is that poverty and unemployment statistics do not include people how are behind bars. Prisoners are literally erased from the nation’s economic picture, leading standard estimates to underestimate the true jobless rate by as much as 24 percentage points for less-educated black men. (229)

Tinkering Is for Mechanics, Not Racial-Justice Advocates

The more than 700,000 prison and jail guards, administrators, service workers, and other personnel represent a potentially powerful political opposition to any scaling-down of the system. One need only recall the fierce opposition to the closing of military bases in recent years to see how these forces will function over time. – Mac Mauer

…there must be a change within the culture of law enforcement. … Law enforcement must adopt a compassionate, humane approach to the problems of the urban poor–an approach that goes beyond the rhetoric of “community policing” to a method of engagement that promotes trust, healing, and genuine partnership. (233)

All of the needed reforms have less to do with failed policies than a deeply flawed public consensus, one that is indifferent, at best, to the experience of poor people of color. (233)

Let’s Talk About Race–Resisting the Temptation of Colorblind Advocacy

The prevailing caste system cannot be successfully dismantled with a purely race-neutral approach. (239)

Colorblindness, though widely touted as the solution, is actually the problem. (240)

Against Colorblindness

If colorblindness is such a bad idea, though, why have people across the political spectrum become so attached to it? For conservatives, the ideal of colorblindness is linked to a commitment to individualism. In their view, society should be concerned with individuals, not groups. … For liberals, the ideal of colorblindness is linked to the dream of racial equality. The hope is that one day we will no longer see race because race will lose all of its significance. (243)

The uncomfortable truth, however, is that racial differences will always exist among us. (243)

Seeing race is not the problem. Refusing to care for the people we see is the problem. … We should hope not for a colorblind society but instead for a world in which we can see each other fully, learn from each other, and do what we can to respond to each other with love. (244)

The Racial Bribe–Let’s Give It Back

Racial justice advocates should consider, with a degree of candor that has not yet been evident, whether affirmative action–as it has been framed and defended during the past thirty years–has functioned more like a racial bribe than a tool of racial justice. … We should ask ourselves whether efforts to achieve “cosmetic” racial diversity–that is, reform efforts that make institutions look good on the surface without the needed structural changes–have actually helped to facilitate the emergence of mass incarceration and interfered with the development of a more compassionate race consciousness. (244)

The claim is that racial justice advocates should reconsider the traditional approach to affirmative action because (a) it has helped to render a new caste system largely invisible; (b) it has helped to perpetuate the myth that anyone can make it if they try; (c) it has encouraged the embrace of a “trickle down theory of racial justice”; (d) it has greatly facilitated the divide-and-conquer tactics that gave rise to mass incarceration; and (e) it has inspired such polarization and media attention that the general public now (wrongly) assumes that affirmative action is the main battlefront in U.S. race relations. (245)

…cosmetic diversity, which focuses on providing opportunities to individual members of under-represented groups, both diminishes the possibility that unfair rules will be challenged and legitimates the entire system. (251)

Obama–the Promise and the Peril

All of Us or None

Perhaps the time has come to give up the racial bribes and begin an honest conversation about race in America. The topic of the conversation should be how us can come to include all of us. Accomplishing this degree of unity may mean giving up fierce defense of policies and strategies that exacerbate racial tensions and produce for racially defined groups primarily psychological or cosmetic racial benefits. (257)

…power concedes nothing without a demand; it never has and it never will. – Frederick Douglass

…the failure to acknowledge the humanity and dignity of all persons has lurked at the root of every racial caste system. (259)

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