Criminal Injustice

When President Ronald Reagan inaugurated the War on Drugs in 1982, five hundred thousand Americans were incarcerated in federal and state prisons, fewer than ten percent of whom were drug offenders. Since then, that number has soared to more than two million, including 500,000 convicted of drug crimes, an increase in that category alone of more than one thousand percent.

Forty percent of those inmates are black, a statistic which translates to five percent of the male black population in the United States, compared to only seven-tenths percent of the male white population. This inordinate disparity has prompted Ohio State law professor Michelle Alexander, writing in her scathing 2012 investigative report The New Jim Crow: Mass Incarceration in the Age of Colorblindness, to characterize her subject as nothing less than a contemporary racial caste system, the grievous successor to eighteenth century chattel slavery and twentieth century legal segregation as a mechanism to control the black underclass.

Alexander contends that the War on Drugs is the vehicle by which extraordinary numbers of black men are forced into a cage, "a subordinate political, social, and economic position" equivalent to second-class citizenship. The three-stage entrapment involves facilitated law enforcement aggressiveness, discriminatory judicial processes, and post-imprisonment marginalization. (Alexander, pp. 184-185)

The absence of significant constraints on the police has made the roundup of millions of Americans for drug offenses relatively easy. Their efforts have been aided and abetted by several Supreme Court decisions which, by eviscerating Fourth Amendment protections, have granted them a pecuniary interest in the drug wars and have countenanced the search and seizure of individuals in public places. (Alexander, pp. 61, 63)

In Florida v. Bostick, the Court upheld the conviction for possession of cocaine of Terence Bostick, who allowed police to search his bag after they boarded his bus fishing for drugs. Bostick was not really "seized," concluded the court, since "a reasonable person" would have felt free to refuse the police officer's demands. "The Court made clear that its decision was to govern all future drug sweeps, regardless of the circumstances." (Alexander, pp. 64-65)

In a case appealed by two African Americans, Michael Whren and James Brown, who were found to be in possession of cocaine when their car was stopped for failure to use a turn signal, the Court ruled that minor traffic violations were a legitimate pretext to conduct drug investigations, whether or not there was evidence of illegal drug activity. (Alexander, pp. 67-68)

In Ohio v. Robinette, the Court struck down a lower court's ruling that an officer must advise a motorist that he is free to leave the scene before asking permission to search his vehicle. Richard Robinette had given his consent and been convicted for possession of marijuana and a single amphetamine pill after having been stopped for speeding. (Alexander, p. 68)

In order to overcome resistance to searches, the Court has authorized the jailing of motorists for minor traffic violations and the intimidating deployment of drug-sniffing dogs at airports, bus and train stations, and vehicle stops. (Alexander, p. 69)

Blessed by the Supreme Court, the Drug Enforcement Agency (DEA) launched Operation Pipeline in 1984; it trains state and local law enforcement officers to use pretextual traffic stops and consent searches on a large scale for drug interdiction. The program's success depends on the police stopping "staggering" numbers of people in shotgun fashion, interrogating them about imaginary drug activity, and harassing them into searches. It has been estimated that ninety-five percent of Pipeline stops come up empty. (Alexander, p. 71)

"The fact that police are legally allowed to engage in a wholesale roundup of nonviolent drug offenders does not answer the question of why they would choose to do so." At the time the drug war was instigated, state and local officials were reluctant to endorse and commit to it; they viewed it as an encroachment upon their street crime-fighting jurisdiction and a diversion of resources away from more serious wrongdoing, such as murder, rape, theft, and assault. (Alexander, pp. 72-73)

The solution was money -- huge bribes to law enforcement agencies willing to enlist. The DEA offered free training, intelligence, and technical support and the Pentagon gifted truckloads of excess firearms -- including 1.2 million pieces in 1997 alone -- to highway task forces and state patrols to combat the drug scourge. (Alexander, pp. 73-74)

Flush with cash and equipment, police departments organized paramilitary SWAT (Special Weapons and Tactics) teams, and sent them out to serve narcotics warrants, forty thousand times in 2001 compared to three thousand in 1980. Their raids were not polite encounters. They "blasted into people's homes, typically in the middle of the night, throwing grenades, shouting, and pointing guns at anyone inside, often including children." (Alexander, pp. 74-75)

As one might expect, the aggressive nature of SWAT operations produced increased violence and some tragic endings. In 1992, in Everett, Washington, a SWAT team member shot and killed twenty-eight-year-old Robin Pratt as she ran to shield her infant daughter; Pratt was not a suspect. In 1998, in Greensville, South Carolina, an unarmed man was shot and killed after an informant provided bad intelligence. In Bethlehem, Pennsylvania, SWAT officers not only killed a suspect while raiding an alleged drugs house, they inadvertently set the building on fire and burnt it down, probably due to a faulty grenade or tear gas bomb. (Parenti, pp. 125-126)

Even public high schools were not inviolate. In November 2003, responding to a principal suspicious that a student was dealing marijuana, police invaded Stratford High School in Gooses Creek, South Carolina, forced students as young as fourteen and predominantly black to their knees in handcuffs, searched their book bags with drug-sniffing dogs, and found no incriminating evidence. (Alexander, p. 76)

In 1984, Congress provided yet another financial incentive for law enforcers to prosecute the drug war -- the prerogative at the federal level to retain and use one hundred percent, and at the state and local levels up to eighty percent, of the proceeds from asset forfeitures. At the time, assets and cash could be seized on mere suspicion of drug activity, without notice or hearing, and without the owner of the property even charged with a crime. (Alexander, p. 79)

Despite a Reform Act passed in 2000, the burden still rests with the defendant to prove that he did not know of the illegal conduct involving the property or that he tried to terminate its use. And drug busts motivated by the desire to seize cash, cars, and homes are still legal. (Alexander, p. 83)

Once swept into the criminal justice system, the accused often confronts a stacked deck of unpalatable choices. If he is indigent and unable to hire an attorney -- as are eighty percent -- the court will appoint a public defender, many of whom are of inferior ability, due to low pay and the burden of overwhelming case loads. Staring at a mandatory minimum sentence -- for charges loaded up by an overly aggressive prosecutor -- he may be pressured into plea bargaining, pleading guilty in exchange for leniency and cooperation with law enforcement, when he may, in fact, be innocent. (Alexander, pp. 84-88)

Who wouldn't plea bargain when threatened with lengthy jail time for a minor drug crime? Twenty-four-year-old Marcus Boyd was sentenced to fourteen years in prison for selling 3.9 grams of cocaine to a confidential informant. After voicing his objection that what he was about to do was "unjust, cruel, and even irrational," a judge was compelled to send Weldon Angelos away for fifty-five years for three marijuana sales, during which he was found to possess a weapon. (Alexander, p. 93)

It is not an accident that Marcus Boyd and Weldon Angelos were black. "In the drug war, the enemy is racially defined." (Alexander, p. 98)

"Human Rights Watch reported in 2000 that, in seven states, African Americans constituted eighty to ninety percent of all drug offenders sent to prison. In at least fifteen states, black men are incarcerated on drug charges at a rate from twenty to fifty-seven times greater than that of white men." (Alexander, p. 98)

"The central question, then, is how exactly does a formally colorblind justice system" -- operating in an environment in which "hardly anyone advocates or engages in explicit race discrimination" -- produce such egregious inequities? (Alexander, pp. 102, 103)

Because drug use is both ubiquitous -- in that many Americans of all races have violated drug laws in their lifetime -- and consensual -- in that there is no victim or perpetrator in the commission of the act -- enforcement of the law -- whom to stop, search, arrest, and charge -- is subject to extraordinary discretion. And once crack cocaine, the black narcotic, emerged as a national menace -- a perception engendered and embedded in the public consciousness by the political rhetoric of the Reagan Administration and the attendant media frenzy -- all doubt was erased as to who the villain was and what he looked like. (Alexander, pp. 104-105)

Jerome Miller, the former executive director of the National Center for Institutions and Alternatives, described the dynamic this way: "There are certain code words that allow you never to have to say 'race,' but everybody knows that's what you mean and 'crime' is one of them." (Alexander, p. 105)

For example, for nearly three decades, news stories regarding street crime have disproportionately featured African American offenders. In one study, "sixty percent of viewers who saw a story with no image falsely recalled seeing one, and seventy percent of those viewers believed the perpetrator to be African American." (Alexander, p. 106)

Although "charged with the responsibilty of protecting 'discrete and insular minorities' from the excesses of majoritarian democracy . . . when the time came for the Supreme Court to devise the legal rules that would govern the War on Drugs," it effectively maximized rather than minimized the likelihood that discrimination would occur. (Alexander, p. 108)

In 1987, Warren McCleskey, who had killed a white police officer during an armed robbery, challenged his death sentence on the grounds that Georgia's death penalty was racially biased and thus violated the Fourteenth and Eighth Amendments. (Alexander, pp. 109-110)

Despite hearing research that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks, the Supreme Court rejected McCleskey's appeal. It insisted that, in order to claim unequal treatment under the law, regardless of the statistical evidence, McCleskey had to prove that the prosecutor had sought or the jury had imposed the death penalty for racial reasons. In other words, racial discrimination in the criminal justice system would be tolerated, as long as no one admitted to a bias. (Alexander, p. 111)

Lower courts have relied on McCleskey v. Kemp to deny pleadings that crack sentencing laws -- which, until recently revised, mandated a five-year sentence for the sale of five hundred grams of powder cocaine but the same for the sale of only five grams of crack cocaine -- are discriminatory. In a sentence that was later reversed, after imposing four years instead of the mandatory ten on eighteen-year-old Edward Clary, who was caught transporting the drug for a friend, Judge Clyde Cahill of the Federal District Court of Missouri, declared: "The 100-to-1 ratio [it's now 18-to-1] . . . 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." (Alexander, pp. 112-113)

Prosecutors' offices are fertile grounds for discriminatory practices. With few rules to constrain them, prosecutors may dismiss a case for any reason or no reason, increase the charges against a defendant, offer inconsistent plea deals, and transfer drug cases to more punitive federal courts. (Alexander, p. 115)

"The risk that prosecutorial discretion will be racially biased is especially acute in the context of drug enforcement, where virtually identical behavior is susceptible to a wide variety of interpretations and responses and the media imagery and political discourse have been so thoroughly racialized." (Alexander, p. 118)

Yet in the 1996 case Armstrong v. United States, the Supreme Court disallowed any inquiry into the reasons for or causes of racial disparities in prosecutorial decision making, unless evidence of conscious, intentional bias could be produced. Included in the material submitted by Armstrong's lawyers was a list of more than two thousand persons charged with federal crack violations over a three-year period, all but eleven of whom were black; none were white. (Alexander, pp. 116-117)

Criminal justice is equally undermined by police discretion. "From the outset, the drug war could have been waged in white suburbs and on college campuses," with officers raiding high school coke and ecstasy parties; seizing televisions, furniture, and cash from fraternity houses; or setting up undercover operations to entrap homemakers dealing prescription "uppers." (Alexander, p. 124)

Instead they chose the 'hood -- black ghettos where political backlash was minimized and outdoor drug activity was more easily detected -- as the optimum place to unleash their SWAT teams, set up their buy-and-bust operations, and stop and frisk riders, loiterers, and transients. (Alexander, p. 124)

"Not only do police discriminate in their determinations regarding where to wage the war, but they also discriminate in their judgments regarding whom to target outside the ghetto's invisible walls." A 1990's New Jersey study showed that, while only 15 percent of drivers on the New Jersey Turnpike were racial minorities, 42 percent of all stops and 73 percent of all arrests were of black motorists -- despite the fact that blacks and whites violated traffic laws at the same rate. (Alexander, p. 133)

"In Florida a team of journalists viewed videotapes of approximately one thousand highway stops, and found that police were using traffic violations as a pretext to confiscate 'tens of thousands of dollars from motorists,' " a staggering 85 percent of whom were African American. "These operations were racist both in application and intent: a 1985 Florida Highway Patrol directive instructed troopers to focus their efforts on 'ethnic groups associated with the drug trade.' " (Parenti, pp. 53-54)

The most pernicious of these bounty hunters was Sheriff Bob Vogel of Volusia County. Between 1989 and 1992, conducting elaborate night-time stings in which they shone lights across the highway to ascertain the skin color of drivers, Vogel's deputies seized $8 million dollars from hundreds of motorists, 85 percent of whom were African American and 75 percent of whom were never charged with a crime. (Parenti, p. 54)

In 1999, after four white New York police officers shot and killed Amadou Diallo, an unarmed African immigrant who ignored their orders to stop and be interrogated, a study commissioned by the Attorney General found that African Americans were stopped six times more frequently than whites. In 2008, the New York Police Department reported stopping 545,000 persons, of whom 80 percent were African American or Latino. (Alexander, p. 135)

The Supreme Court has actually granted law enforcement license to discriminate. In United States v. Brignoni-Ponce, it "concluded that the police could take a Mexican's appearance into consideration when developing reasonable suspicion that a vehicle might contain undocumented immigrants." (Alexander, pp 130-131)

It went further in 2001, ruling in the case Alexander v. Sandoval that Title VI of the Civil Rights Act of 1964 did not provide a "private right of action" to ordinary citizens and civil rights groups -- implying that victims of discrimination could no longer sue under the law. Prior to that, plaintiffs had been able to argue effectively that drug war tactics -- like pretextual stops and consensual searches -- had a discriminatory impact and were unlawful unless justified by necessity. (Alexander, pp. 137-138)

Serving time in this system does not exonerate the convict, especially if he is black. Once released from prison, he will be subject to a host of sanctions that virtually guarantee he will never integrate into mainstream white society. (Alexander, p. 186) Tainted with a badge of inferiority, he will be relegated to a second-class status -- not unlike "the 'coloreds' in the years following emancipation . . . deemed characterless and purposeless, deserving of contempt and disdain." (Alexander, p. 141)

Needing a place to live, he will find the doors of public housing closed to him. The Quality Housing and Work Responsibilty Act of 1998 not only authorized public housing agencies to exclude and evict drug offenders and other felons, it also allowed them to ban applicants who had been arrested regardless of whether they had been convicted. (Alexander, p. 145) As a result, according to the McCormick Institute of Public Affairs, nearly a quarter of the residents of homeless shelters had been incarcerated within the previous year. (Alexander, p. 147)

Individuals with drug-related felony convictions have also been barred from receiving federally funded public assistance, including food stamps. (Alexander, p. 157)

Finding a job will not be easy for the ex-prisoner -- especially after he acknowledges his criminal record on his application. "Nearly every state allows private employers to discriminate on the basis of past convictions." In a 2002 survey of 122 California employers, less than a quarter were willing to consider hiring a drug felon. (Alexander, p. 148)

With a dearth of manufacturing and construction jobs in urban areas, an ex-offender without driving privileges or access to a car so he can commute to the suburbs faces even longer odds of employment. Even those who hope to be self-employed -- for example, as barbers, manicurists, gardeners, or counselors -- may find themselves denied professional licenses due to their past arrests and internment. (Alexander, pp. 149-150)

In effect, by branding particular individuals as criminals, the state has legitimized their "negative credentials" as a basis for discrimination. (Alexander, p. 151)

Even a job does not ensure a functional lifestyle. Newly released prisoners are often saddled with substantial debt -- preconviction fees assessed for jail book-in, pretrial detention, and bail investigation; postconviction fees assessed for presentencing reports, public defender costs, residential or work-release programs, and parole or probation services; fees assessed for drug testing and treatment; and late fees and interest assessed for failure to pay in a timely manner. (Alexander, pp. 154-155)

Forty-eight states and the District of Columbia prohibit incarcerated felons from voting. "The vast majority continue to withhold the right to vote when prisoners are released on parole. Even after the term of punishment expires, some states deny the right to vote for a period ranging from a number of years to the rest of one's life." (Alexander, p. 158)

In many states the voting rights restoration process is so bureaucratic, confusing, onerous, and costly that many former inmates simply to choose to remain disenfranchised. (Alexander, p. 159)

Between 1982 and 1998, one in seven black men nationally had lost the right to vote, and as many as one in four in some states. These figures may actually understate the rate of felony disenfranchisement, because they do not include the millions of ex-felons who cannot vote because they cannot afford to pay the fines or fees required by some states before voting rights can be restored. (Alexander, p. 193)

Clinton Drake, a fifty-five-year-old African American from Montgomery, Alabama, was arrested for possession of marijuana in 1988, and again in 1993. Facing ten to twenty years in prison as a repeat offender, Drake, a Vietnam veteran and, at the time, a cook at the local air force base, took his public defender's advice and accepted a plea bargain to serve "only" five years. (Alexander, p. 159)

Once released, Drake found he was forbidden from voting until he paid $900 in court costs -- a difficult task, considering he was unemployed and likely to find only low-wage jobs. Before the 2004 presidential election, Drake said: "I put my life on the line for this country. To me, not voting is not right . . My son's in Iraq, in the army like I was. My oldest son was a Marine, and fought in the first Persian Gulf Conflict . . . In Alabama they treat marijuana like you committed treason or something. I was on the 1965 voting rights march from Selma; I was fifteen years old. At eighteen, I was in Vietnam fighting for my country. And now? Unemployed, and they won't allow me to vote." (Alexander. pp. 159-160)

Many ex-offenders assert that even worse than the formal and legal mechanisms that marginalize them are the shame and stigma they can never escape. According to Dorsey Nunn, founder of All of Us or None, "The biggest hurdle you gotta get over when you walk out these prison gates is shame -- that shame, that stigma, that label, that thing you wear around your neck saying 'I'm a criminal.' " (Alexander, p. 162)

For many black men, the hurt and depression give way to anger. A black minister in Waterloo, Mississippi, expressing his outrage at the fate that has befallen African Americans in the post-civil rights era, says, " 'Felony' is the new n-word. They don't have to call you a nigger anymore. They just say you're a felon . . . Once you have that felony stamp, your hope for employment, for any kind of integration into society, it begins to fade out. Today's lynching is a felony charge. Today's lynching is incarceration." (Alexander, p. 164)

Even in their own communities, returning criminals are scorned and rebuffed, not only by employers, welfare workers, and housing officials, but also by neighbors, teachers, and their own family members, which only deepens their isolation, distrust, and alienation. As a means of survival they turn in frustration to gangs and fellow inmates for support, embracing their stigmatized identity in a desperate effort to regain some measure of self-esteem. Sadly, then, a sanctimonious public further demonizes them, condemns their baggy pants and jailhouse music, and hardly notices when they drift back into prison. (Alexander, pp. 165, 172)

Once one understands how the system of mass incarceration works to create and perpetuate a racial caste, several unpleasant truths become self-evident.

The first is that the purported colorblindness of mass incarceration -- the absence of racial animus and overt racial hostility among those prosecuting the drug war -- has enabled most Americans to remain in deep denial as to its the true nature. (Alexander, p. 183)

The reality is that, contrary to conventional wisdom, racism manifests itself not only in individual attitudes and stereotypes, but also in the basic structure of a society, in the totality of its laws, institutions, and practices. In this case, racial profiling, biased sentencing policies, disenfranchisement, and legalized employment discrimination, to name a few, operate collectively to confine African Americans to the basement of a racial hierarchy. (Alexander, p. 184)

It is a system of control grounded not in old fashioned bigotry -- which tends to distract and immunize observers from the underlying issue -- but in an equally dangerous sentiment, indifference, the lack of caring and compassion about race and racial groups. (Alexander, p. 203)

The second unpleasant truth about mass incarceration is that, just like Jim Crow segregation, today's War on Drugs can impact not just a fraction of an ethnic minority but entire communities of color. In some cities the system seems more focused on the management and control of those communities than on the prevention and punishment of crime. (Alexander, p. 188)

In Illinois, for example, about 90 percent of those who go to prison for a drug offense are African American; in Chicago that number has grown two thousand percent, from 469 in 1985 to 8755 in 2005. As a result, fifty-five percent of adult black males in the city have a felony record. In 2001, there were more of them in state correctional facilities on drug charges alone than were enrolled as college undergraduates. "White drug offenders are rarely arrested, and when they are, they are treated more favorably" with regard to plea bargaining and sentencing. (Alexander, pp. 189-190)

The third unpleasant truth about mass incarceration is that thousands of whites who are not the real target of this war find themselves in prison as collateral damage. Their inclusion "is essential to preserving the images of a colorblind justice system" and a body politic that is fair and unbiased, illusions that would evaporate if the guilty were one hundred percent African Americans. (Alexander, pp. 204-205)

In his book The Anatomy of Racial Inequality, economist Glenn Loury says that it is impossible to conceive of anything remotely similar to this perverse situation happening in reverse -- to imagine large numbers of young white men rounded up for minor drug offenses, placed under penal supervision, and subsequently subjected to a lifetime of discrimination and exclusion. If such a thing occurred, "it would occasion a most profound reflection upon what had gone wrong, not only with them, but with us." (Alexander, p. 205)

Consider society's drastically different response in the 1980's to the widespread problem of drunk driving as compared to crack cocaine. By the end of the decade, drunk drivers were responsible for 22,000 deaths annually, with overall alcohol-related deaths approaching 100,000, while the total of all drug-related deaths due to AIDS, overdosing, or illegal trade violence was estimated at 21,000. Yet the misdemeanor sentences imposed on drunk drivers -- seventy-eight percent of whom were white males -- in spite of vigorous advocacy campaigns mounted by organizations like Mothers Against Drunk Drivers, typically involved fines, license suspension, and community service. Meanwhile, large numbers of black drug offenders were being charged with felonies and sent to prison. (Alexander, pp. 205-207)

Similarly, during the first half of the twentieth century, when marijuana was perceived to be an evil confined to black and Mexican-American communities, first-time possession warranted two to five years in prison. By 1970, as usage proliferated among the white middle class, the Comprehensive Drug Abuse Prevention and Control Act differentiated it from other narcotics and lowered federal penalties. (Alexander, p. 207)

The fourth unpleasant truth about mass incarceration is that the threat of violent crime in poor black communities almost compels their residents to accept harsh enforcement policies as a matter of necessity. Abhorring gangs and demoralized by the insecurities of the ghetto, they want order maintained; yet they understand the tragic consequences of saddling their young men with felony convictions. Cooperation, complicity, even endorsement of the system can too easily be misconstrued as unadulterated support. (Alexander, pp. 209-210)

This predicament is not altogether different from the situation African Americans faced during the Jim Crow era, most of whom chose to accept its rules rather than flout or resist them and incur the wrath of the Ku Klux Klan. Their behavior helps explain why leaders such as Booker T. Washington urged his fellow blacks to focus on improving themselves rather than on challenging racial discrimination and why many in the South initially resisted the Civil Rights Movement. (Alexander, p. 210)

The fifth unpleasant truth about mass incarceration is that, like Jim Crow segregation, it establishes impenetrable barriers between thousands of black people and mainstream society. It locks them in prisons hundreds of miles from their homes, in buildings far from populations centers, where they remain out of sight and out of mind. Upon release, their isolation is perpetuated, in that they usually return to a select number of urban neighborhoods -- like North Lawndale on Chicago's West Side, where seventy percent of men between eighteen and forty-five are ex-offenders, and every street corner is a minefield, since a standard condition of parole is a promise not to associate with felons. (Alexander, pp. 195-196)

The sixth unpleasant truth about mass incarceration is that it appears to be voluntary, implying that its penalties of ostracism and second-class citizenship can be avoided simply by good behavior.

The reality is that no one is without fault, including many Americans who have violated drug laws. Yet only some will be branded criminals for their actions, labeled morally inferior, and permanently marginalized. Why is the black kid selling weed on a street corner to help his mother pay the rent more culpable than the college student dealing drugs from his apartment to finance his spring break? Is the suburban high school student who drinks a six-pack of beer and then gets behind the wheel of his car any less a threat than the youthful "gangsta" carrying a gun because danger lurks at every corner of his neighborhood? (Alexander, p. 216)

"It is far more convenient to assume that a majority of young African American men freely choose a life of crime than to accept the possibility that their lives are structured in a way that virtually assures their early initiation into a system from which they can never escape." (Alexander, p. 184)

The seventh unpleasant truth about mass incarceration is that, by warehousing poor black and brown people for lengthy periods of time, it deems them irrelevant and unnecessary in an economy no longer dependent on unskilled labor. (Alexander, p. 219)

Between 1954 and 1984 -- as a result of deindustrialization, globalization, and technological advancement -- the black unemployment rate quadrupled, while the white rate remained stable. Instead of investing in education, job training, public transportation, and relocation assistance in urban communities, the U. S. government declared a War on Drugs. Unable to find jobs in factories, lower class black men were vilified in the media, denounced for their shiftlessness, and dispatched to prison. (Alexander, pp. 218-219)

The eighth unpleasant truth about mass incarceration is that it defines blackness in America; black people, especially black men, metaphorically speaking, are criminals. And they have been made criminals at drastically higher rates than white people for engaging in the same conduct -- illegal drug activity -- at no higher rates. (Alexander, p, 197)

If a black man is thus to be thought of as a criminal, to be a black criminal is to be despicable -- a social pariah. To be a white criminal is not easy, by any means, but a white criminal is not a racial outcast, although he may face many forms of legal and social exclusion. "Whiteness mitigates crime, whereas blackness defines the criminal." (Alexander, p. 199)

The obverse is also true; what it means to be a criminal in the public consciousness has become conflated with what it means to be black. When asked to envision a drug user, survey participants in overwhelming numbers have been known to respond "a black man." (Alexander, p. 198)

"This conflation provides a legitimate outlet for the expression of antiblack resentment and animus" -- a convenient release valve in an era of colorblindness when explicit forms of racial bias are forbidden. Hatred of blacks, which is no longer permissible, has simply been replaced by hatred of criminals, who are mostly black. (Alexander, p. 199)

As John Edgar Wideman points out: "It's respectable to tar and feather criminals, to advocate locking them up and throwing away the key. It's not racist to be against crime, even though the archetypal criminal in the media and in the public imagination almost always wears Willie Horton's face." (Alexander, p. 199)

Essential to the stigmatizing of black youth is their "marking" as criminals even before they are subject to formal control. Thus, young black men must be stopped by the police, interrogated, searched, and even arrested when there is no probable or observable cause. James Forman Jr., the cofounder of the See Forever charter school for juvenile offenders in Washington, D. C., describes how these infringements "tell kids that they are pariahs, that no how hard they study, they will remain potential suspects." (Alexander, p. 200)

Reforming this structurally embedded system presents daunting challenges.

First, prisons are big business. Returning to the incarceration rates of the 1970's would require the release of four out of five persons currently behind bars, result in massive layoffs among more than 700,000 guards, administrators, and service workers, arouse panic in the rural communities that have become dependent on prisons for jobs and economic growth, and threaten the profitability of companies which build and operate prisons and have a vested interest in the health and stability of the industry. (Alexander, p. 230)

In its 2005 annual report, for example, the Corrections Corporation of America explained its priorities: "Our growth is dependent upon our ability to obtain contracts to develop and manage new correctional and detention facilities . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices, and the decriminalization of certain activities that are currently proscribed by our criminal laws," such as drug use. (Alexander, pp. 230-231)

Second, says Professor Alexander, the War on Drugs, which has been largely responsible for the prison boom and the sustaining of a racial undercaste, must be brought to a swift conclusion. This will be no simple task, since it involves the downsizing of an eighty billion dollar enterprise, the revoking of federal grant money and weapons transfers to local agencies, the expunging of drug forfeiture laws, and the eradication of racial profiling. (Alexander, p. 232)

Beyond these technical measures, Professor Alexander sounds the clarion call for a change in the culture of law enforcement. "Black and brown people in ghetto communities must no longer be viewed as the designated enemy." Data collection for police and prosecutors should be implemented nationwide to minimize selective and discretionary practices. "Public defender offices should be funded at the same level as prosecutor's offices . . . Mandatory drug sentencing laws should be rescinded. Marijuana should be legalized (and perhaps other drugs as well). Meaningful re-entry programs must be adopted." Drug treatment on demand should be available to all Americans. (Alexander, p. 233)

A third challenge is overcoming the widespread perception that the system is working, that an historically low violent crime rate is the result of the current high rate of mass incarceration. Most experts, however, believe that the maximum amount of crime reduction attributable to imprisonment is twenty-five percent, and that perversely, by having passed a tipping point, the large numbers are contributing more to crime that preventing it -- "by ripping apart fragile social networks, destroying families, and creating a permanent cadre of unemployed," ill-fed, and ill-housed felons. (Alexander, pp. 236-237)

A fourth challenge is understanding that the exaggerated claims of racial progress engendered by a generation of affirmative action and diversity initiatives merely serve to mask the reality of the new Jim Crow racial caste. Such a condition seems implausible in a country where Condoleezza Rice, Colin Powell, and Barack Obama can rise to the pinnacle of power, where a vibrant black middle class can exert its own brand of influence. Given such evidence, is it not natural to conclude that their personal and cultural traits, not the structure of their environment, are responsible for so many other black men landing on the other side of the law? Their mass incarceration is compatible with the American creed of race neutrality as long as it can be interpreted as their own fault. (Alexander, pp. 246-248)

The staffing of law enforcement with minorities further reinforces the illusion that racism is an anachronism. Automatically defused are questions like, "How can you say the Oakland Police Department's raids are racist? There's a black police chief, and most of the officers participating in drug raids are black." Their quiet complicity in the roundups diminishes the possibility that inequities will be questioned, legitimizes the system, and insulates it from criticism. (Alexander, pp. 250-251)

In all fairness, Professor Alexander occasionally overlooks or downplays the limitations of her Jim Crow analogy.

First, in tracing the origins of mass incarceration to the "law and order" policies of a Nixon administration pandering to racist voters, she ignores the rise in violent crime which occurred in the late 1960's and early 1970's -- when homicide rates doubled and robbery tripled -- and fueled demands for more punitive policies. In Harlem, the NAACP Citizens' Mobilization against Crime lobbied for longer minimum prison terms for "muggers, pushers, and first degree murderers," and New York's leading black newspaper, the Amsterdam News, advocated mandatory life sentences for the "non-addict pusher of harsh drugs." What the activists got were some of the most stringent drug penalties in the nation, the Rockefeller laws, which mandated fifteen years in prison for possession of four ounces of heroin or cocaine. (Forman, Boston Review)

While Alexander would counter-argue that these laws simply underscore the futility of the drug war, that locking up exponentially more people has resulted in only a minor reduction in violent crime since the early 1990's, and that a better policy would have been prevention through "hope and economic opportunity," as recommended by President Johnson's 1967 Commission on Crime in the United States, this example of mass imprisonment's complex political and social history suggests that its evolution cannot be neatly reduced to "proponents of racial hierarchy . . . seeking to install a new racial caste system." (Forman, Boston Review)

Alexander's analysis of the U. S. prison boom focuses almost exclusively on drug offenders and avoids the less sympathetic violent lawbreakers, who are incarcerated more often and for longer periods of time than in any other nation. Only about twenty-five percent of all prisoners (550,000) are drug offenders, and if they were all released tomorrow, the United States would still own the world's largest penal population. (Forman, Boston Review) On the other hand, it is difficult to categorize how much violent crime is related to drug activity. Unquestionably, hundreds of robberies are committed every day by addicts needing money to buy their next fix, and untold numbers of shootings and homicides can be attributed to dealers protecting their turf, settling debts, and intimidating or eliminating witnesses.

While Alexander staunchly maintains that structural and environmental conditions predispose young black men to a life of crime, especially in poor urban areas, lawbreaking by any person will always be a matter of choice, as will his punishment, however inconsistent and unjust, whereas the treatment suffered by blacks in the era of segregation was beyond their control. Alexander may also be guilty of minimizing the harm caused by crime -- especially violent crime -- whose victims are disproportionately poor, young, and black or brown. (Forman, Boston Review)

Finally, Alexander's claim that mass incarceration's true targets are blacks must be examined in the face of over 700,000 white inmates whom she characterizes as "collateral damage." The Sentencing Project reports that, while whites remain relatively underrepresented as drug offenders, their percent has risen since 1999 while the percent who are black has declined. And, as perhaps a sign of moral enlightenment, or a product of fiscal necessity, the same organization has documented declines in prison populations between 1999 and 2009 in four states -- New York, New Jersey, Michigan, and Kansas -- ranging from twenty to five percent, while noting that crime rates in these states were falling even as their prisons got smaller. (Forman, Boston Review)

Fifty years ago Martin Luther King Jr. explained why mass mobilizations were more important than lawsuits. "We're trying to win the right to vote," he said, "and we have to focus the attention of the world on that. We can't do that making legal cases. We have to make the case in the court of public opinion." (Alexander, pp. 233-234)

"In his view, it was a flawed public consciousness -- not merely flawed policy -- that was at the root of racial oppression." (Alexander, p. 234)

Today, says Professor Alexander, a flawed public consciousness lies at the core of the prevailing caste system. Because drug crime in this country is understood to be black and brown, the electorate has not much cared about drug criminals, at least not the way it would have cared had more of them been white. It is precisely this failure to care about African Americans that has fostered the creation of the new racial underclass. (Alexander, pp. 234, 241)

The governing principle of this flawed consciousness is not hostility but colorblindness. The public "purports to see black and brown men not as black and brown, but simply as men -- raceless men -- who have failed to play by the rules others follow quite naturally." It fails to see the color of those men rounded up for crimes which are largely ignored when committed by whites. It fails to see segregated schools, segregated ghettos, and a segregated communal discourse. (Alexander, p. 241)

A final unpleasant truth, however, is that racial differences can never be obliterated. Even if the legacies of slavery, Jim Crow segregation, and mass incarceration could be completely erased, the United States would remain a nation of immigrants with racial and ethnic inequality a persistent conundrum of American life. (Alexander, p. 243)

Sometime in the future advocates may manage to convince voters and legislators that too many persons are incarcerated, that prisons are too costly to maintain, and drug use is a public health problem, not a crime. But racial caste will only be eliminated by a unified commitment to color consciousness as opposed to colorblindness, a commitment that places faith in the human capacity to show care and concern for others while it remains fully cognizant of race and possible racial differences. (Alexander, pp. 242-243)

Alexander says, "Seeing race is not the problem. Refusing to care for the people we see is the problem . . . We should not hope for a colorblind society but instead," as Martin Luther King Jr. dreamed, for a world in which we see others fully, learn from them, and respond with love. (Alexander, p. 244)

REFERENCES

Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press, 2012.

Forman, James. "Harm's Way: Understanding Race and Punishment." Boston Review, January/February 2011.

Parenti, Christian. Lockdown America: Police and Prisons in the Age of Crisis. New York: Verso, 1999.