When the New Press published The New Jim Crow in hard back in 2010, the print run was a commendable 3,000 copies for a scholarly work. When the paperback edition was published in January, 2012, the book sold 175,000 copies in less than two months. Even as The New Jim Crow has been a publishing phenomenon of extraordinary proportions, it has been an even greater phenomenon in the world of ideas.
The thesis of The New Jim Crow is simple. As the author, Michelle Alexander acknowledges, in the introductory pages, the book’s seminal arguments have been put forward for some time but have not reached the wide circle of listeners that is necessary for change to be possible.
Alexander argues that the impact on Afro-Americans of incarceration and the other control systems of the criminal justice system have created a new caste system similar to that maintained by the Jim Crow laws that took hold in the United States after the Reconstruction efforts faltered and remained effective until dismantled by the Civil Rights legislation in the early 1960s. The United States legal system is designed to maintain the vast majority of Afro-Americans as part of a caste that has reduced opportunities for success and a vastly increased probability of reduced rights; reduced living standards; and the high probability of spending much of their lives being shuffled between prison and parole.
The pervasiveness of the caste system has been greatly enhanced by the War on Drugs, a legislative and administrative complex of activities that commenced in the early 1980s and was persuasively articulated, for the first time, by President Reagan. The War on Drugs has been overwhelmingly applied against Afro-American and, to a lesser extent, Latino communities. Alexander quotes persuasive data from surveys and hospital emergency centres that indicate that white Americans indulge in illicit drugs to the same extent (or more) as Afro-Americans. But it is Afro-American communities who bear the brunt of law enforcement and a slanted legal system under the state of war.
The War on Drugs has been heavily resourced by all administrations since 1982. Local and state police forces have been lured into the practices of the war by the promise of generous resourcing. The tactics promoted have included random stops of vehicles and random searches of pedestrians. Police forces have been heavily armed and riot police and their associated methods have been used to carry out these tactics and to execute drug search warrants. All of this behaviour would have been politically suicidal if used against most white communities. However, because the methods have been applied on racial lines, the political outfall has not been negative and the powerlessness of ghetto neighbourhoods has been reinforced as has the racial stereotype of the drug criminal.
The effect on individuals caught up in the drug war has been exacerbated by laws passed making serious crimes of possession of small amounts of relatively harmless drugs. The widespread use of mandatory sentencing has meant that young black men have spent years in jail while white college boys, factory workers and financial industry heavies continued to enjoy their recreational use of various illegal drugs. The laws concerning the use of crack cocaine (principally, a drug of choice among Afro-American users) have been much more punitive than the laws governing sentencing for powder cocaine, a drug more popular with white users.
The creation of a permanent caste was reinforced by punitive laws passed against anybody convicted of a felony. These continue to affect the lives of Afro-American men after they are released from prison. Convicted prisoners lose their rights to public housing; to various kinds of welfare including food stamps; and often to the chance to obtain employment through restrictions on obtaining licences for a plethora of occupations. Difficulties in obtaining private transport and the vagaries of public transport mean that the few far away jobs are difficult to gain or maintain. And complying with conditions of parole is equally fraught. The net result is a by no means merry go round by which released prisoners find their way back to prison. Even participation in the political life of society is denied as most states have laws preventing ex-prisoners and those convicted of felonies from voting.
The law fails the members of the new caste on many levels. Public defence lawyers are under resourced and few in number. The odd wealthy white person who stumbles into the cross-fire of the War on Drugs is able to hire a lawyer and, with the threat of a well-resourced defence case, earn a favourable deal at the plea bargaining table. Meanwhile those arrested in the racially directed sweeps through the ghetto are lucky to see a lawyer for more than a few minutes and are forced to plead guilty to one set of charges, even when the evidence is weak or they are innocent, under threat of charges that produce even higher sentences. Plea bargaining is a great system for those who come to the table with power. The system ensures that Afro-Americans constitute those without.
A wave of decisions of the Supreme Court have validated and legitimised the racist biases of the system. In McCleskey v Kemp, a death penalty case, the Court received overwhelming evidence that the death penalty in the State of Georgia was applied on racial lines both in respect of the colour of the defendant and the colour of the victim.2 However, in a decision that has been called the Supreme Court’s worst decision, it was ruled that such statistical evidence was not only unpersuasive but inadmissible. Only evidence of overt racial bias in the particular case would be admissible to set aside a decision. Such evidence is very hard to come by in a system that protects the secrecy of the reasoning process of jurors.
In United States v Clary, Judge Clyde Cahill of the Federal District Court of Missouri, challenged the 10-1 discrepancy in the sentencing laws between crack and powder cocaine and carefully analysed the lynch mob mentality by which such discrepancies had been written into the statute books. He refused to sentence an eighteen year old first offender to 10 years in federal prison and, instead, sentenced him to four years, as if the substance was powder cocaine. The Appeals Court overturned the decision and Mr. Clary, who had served his four years, was ordered back to prison to serve the remaining six.
Another key part of the racist structure was preserved in Armstrong v United States. This time, the Supreme Court overruled decisions in the courts below them that would have allowed defnce counsel to have access to the files of prosecutors in other cases. The defence was seeking to argue that the clients were being hit with federal charges (and more severe penalties) in circumstances where prosecutors would not have done the same thing to white defendants. The Supreme Court ruled that the defendants had to have specific evidence of a white defendant who had been treated differently before discovery would be ordered. This was, of course, a classic Catch 22 in that the only way in which clear evidence of such racially biased exercise of prosecutorial decisions could be found was in the files of previous decisions.
Purkett v Elm put beyond reach the racist use of peremptory challenges in jury selection to obtain all-white juries even to the point of saying that prosecutors could get away with nonsensical and contradictory reasoning providing they did not actually come out and admit a racist reason.
A series of decisions have blessed the racially biased approach to law enforcement by police officers and the forces for whom they work. The most effective dismantling of the Constitutional and legislative protections that might have been available occurred in Alexander v Sandoval. Sandoval was about driver’s licence tests being administered only in English. However, it dismantled the effect of key parts of the Civil Rights Act of 1964 holding that regulations made under Title VI of that Act gave no private right of action. As a result, those who suffered racist discrimination, including in law enforcement, could not make any effective claims against that discrimination.
The dismantling of protections against racially slanted law enforcement has been accompanied by another line of cases that has dismantled Fourth Amendment protections against searches without cause carried out as part of the War on Drugs. Florida v Bostick, Schnecklothe v Bustamonte, Ohio v Robinette, Atwater v City of Lago Vista and Whren v United States form part of this series of cases. The lack of limits on police stopping and searching forms a powerful tool in the racially biased enforcement of drug laws.
The New Jim Crow is not an arid academic study. Alexander tells the stories of the individuals caught up in the War on Drugs, including many of the defendants who have lent their names to the cases that now stand as lighthouses marking the rocks of racial injustice. These personal stories are harrowing as the statistics are shocking.
In the period of less than three decades since the War on Drugs was launched,3 the population incarcerated in United States jails have grown 800 per cent from around 300,000 to over 2 million. The United States has the highest incarceration rate in the world, beating countries like Russia, China and Iran. In Germany, 93 people per 100,000 are in jail. In the United States, it is 750 per 100,000.
The United States has a higher proportion of its black population incarcerated than did South Africa at the height of apartheid. In Washington DC, it is estimated that 3 out of 4 young black men (and nearly all of those in the poorer neighbourhoods) can expect to serve time in prison. And Washington DC is no different to black communities located across America.
These figures arise despite the studies which reveal that whites, particularly white youth, are more likely to engage in drug crime than people of colour. And despite the fact that drug use was on the decline when the great War on Drugs was released.
I was particularly fascinated by the final chapter of The New Jim Crow. Alexander discusses the strategies to wind back the creation and maintenance of caste using the justice system and the structural and conceptual barriers that lie in the way.
The structural issues include the financial dependence of often remote rural communities on their new found prison industries including the jobs that prisons create. They include the financial and social addiction of state and local government to police funding that includes the bankrolling of the latest weapons as well as the employment of many staff.
The conceptual problems include the commitment of civil rights and Afro-American rights and legal advocacy groups to the dream of a colour blind discourse and the defence of affirmative action within the educational and employment spheres. Alexander identifies her own educational experience as benefiting from affirmative action.
The New Jim Crow describes a racial bribe offered to privileged Afro-Americans to gain respectability, opportunity and success while their fellow citizens are stuck in the new caste enforced by a racist law enforcement and legal systems. It also describes the way in which disadvantaged whites have always been seduced by caste systems aimed at racial minorities including the system she describes. Disadvantaged whites, while they suffer at the hands of the economic system which keeps them poor and others rich, can always rejoice that they are not black and do not have assault vehicles proceeding through their neighbourhoods administering body, vehicle and dwelling searches and carrying their young men back and forth to prison.
Alexander examines these concerns and more and, tentatively, charts a way forward to fight for real change to dismantle the new caste system.
The New Jim Crow will not stand on book shelves slowly gathering dust. At time of writing, a Google news search for the book’s title found discussion groups at Plymouth; at Princeton; and at Pasadena among others examining and sharing the ideas articulated in The New Jim Crow.
The caste system described by Michelle Alexander exists because most people do not believe it exists. Hopefully, The New Jim Crow, in describing the system, has started the movement for change that will dismantle it for ever. And, hopefully, sooner than later.
Stephen Keim
Clayfield
24 February 2013
Footnotes
1. The New Press is an independent publisher founded in 1992. It is dedicated to widening the audience for serious intellectual discussion and seeks to publish titles which promote serious debate. It also seeks to deal with subjects and audiences which are underrepresented in the work of commercial publishers.
2. A black defendant accused of killing a white victim was most disadvantaged.
3. The statistics in The New Jim Crow tend to come from just past the middle of the last decade. This is a factor of time of publication and writing of the book and the time it takes for reliable statistical studies to be published.
