Martin Luther King Day Reflections on Michelle Alexander’s “The New Jim Crow”

A map called “Architecture and Justice” was one of the most chilling exhibits at MOMA’s Design and the Elastic Mind show a few years ago. One could watch in real time as a red dot–representing a person–was swept from one of New York City’s poorer boroughs and “landed” in an upstate prison.

Part of the mapping project is called “Million Dollar Blocks,” because annual imprisonment costs of some city blocks exceed $1 million. In those places, “on a financial scale, prisons are becoming the predominant governing institution in the neighborhood.” Certainly the 14,000 residents of Brownsville, Brooklyn may feel that way, enjoying about 6,000 police stops a year for “furtive movement” or “other” unspecified behavior. As the NYT reports, “in each of those encounters, officers logged the names of those stopped — whether they were arrested or not — into a police database.” And there are many crimes to solve—as Sen. Jim Webb has noted, “With 5% of the world’s population, our country now houses nearly 25% of the world’s reported prisoners.”

I kept thinking of the “Million Dollar Blocks” while reading Michelle Alexander’s extraordinary work “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” Alexander’s position on the criminal justice system evolves over time:

After years of working on issues of racial profiling, police brutality, and drug-law enforcement in poor communities of color as well as working with former inmates struggling to “re-enter” a society that never seemed to have much use for them, I began to suspect that I was wrong about the criminal-justice system. . . . Quite belatedly, I came to see that mass incarceration in the United States has, in fact, emerged as a comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow. [emphasis added]


Alexander offers some striking statistics to justify her conclusion:

There are more African Americans under correctional control today — in prison or jail, on probation or parole — than were enslaved in 1850, a decade before the Civil War began. As of 2004, more African American men were disenfranchised (due to felon disenfranchisement laws) than in 1870, the year the Fifteenth Amendment was ratified, prohibiting laws that explicitly deny the right to vote on the basis of race.

A black child born today is less likely to be raised by both parents than a black child born during slavery. The recent disintegration of the African American family is due in large part to the mass imprisonment of black fathers. If you take into account prisoners, a large majority of African American men in some urban areas have been labeled felons for life. (In the Chicago area, the figure is nearly 80%.) These men are part of a growing undercaste — not class, caste — permanently relegated, by law, to a second-class status.

If the US had extreme crime rates, perhaps we could consider this situation acceptable. But we don’t (except, perhaps, in the financial sector, where imprisonments are few and far between). Alexander explains that this extraordinary growth of incarceration arises in large part from a racialized drug war:

Crime rates have fluctuated over the last few decades — they are currently at historical lows — but imprisonment rates have consistently soared. Quintupled, in fact. And the vast majority of that increase is due to the War on Drugs. . . . This war has been waged almost exclusively in poor communities of color, even though studies consistently show that people of all colors use and sell illegal drugs at remarkably similar rates. In fact, some studies indicate that white youth are significantly more likely to engage in illegal drug dealing than black youth. Any notion that drug use among African Americans is more severe or dangerous is belied by the data. White youth, for example, have about three times the number of drug-related visits to the emergency room as their African American counterparts.

As Michael Pinard has explained, the collateral consequences of a drug conviction can quickly snowball into a life of missed opportunities and desperation. (American institutions are quite accomplished at setting such “death spirals” into motion.) The prison industry is not shy about promoting policies that add to its profits.

Alexander concludes that we must do better:

As a nation, we have managed to create a massive system of control that locks a significant percentage of our population — a group defined largely by race — into a permanent, second-class status. This is not the fault of one political party. It is not merely the fault of biased police, prosecutors, or judges. We have all been complicit in the emergence of mass incarceration in the United States. In the so-called era of colorblindness, we have become blind not so much to race as to the re-emergence of caste in America. We have turned away from those labeled “criminals,” viewing them as “others” unworthy of our concern. Some of us have been complicit by remaining silent, even as we have a sneaking suspicion that something has gone horribly wrong. We must break that silence and awaken to the human-rights nightmare that is occurring on our watch.

Thankfully, more voices are recognizing the problem. Bernard Harcourt’s Illusion of Free Markets shows how skyrocketing imprisonment rates reflect and reinforce fashionable economic nostrums of the bien pensant, think tank class. Mike Konczal is bringing Harcourt’s insights to a wider audience. I have tried to get the word out about Loic Wacquant’s and Robert Perkinson’s work. Many books have discussed the racial dimensions of America’s extraordinary levels of imprisonment. It’s impossible to ignore the problem any more. Especially today, we must recognize work like Alexander’s as part of a worthy tradition that includes Dr. King–but cannot end with him.

Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

Frank accepts comments via email, at pasqresearch@gmail.com. All comments emailed to pasqresearch@gmail.com may be posted here (in whole or in part), with or without attribution, either as "Dissents of the Day" or as parts of follow-up post(s). Please indicate in your comment whether or not you would like attribution, or would prefer your comment (if it is selected for posting) to be anonymous.

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11 Responses

  1. Frank,

    Spot on, as usual. And, as is my custom, I’ll proffer some titles by way of rounding out the ones you’ve cited:

    Abramsky, Sasha (2007) American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment. Boston, MA: Beacon Press.

    Davis, Angela J. (2007) Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press.

    Garland, David (2001) The Culture of Control: Crime and Social Order in Contemporary Society. Chicago, IL: University of Chicago Press.

    Rhode, Deborah L. (2004) Access to Justice. New York: Oxford University Press.

    Western, Bruce (2006) Punishment and Inequality in America. New York: Russell Sage Foundation.

  2. Oops, I forgot to add a title I’ve yet to read but was recommended by an impeccable authority, namely, the renowned legal ethicist, Monroe H. Freedman:

    Butler, Paul (2009) Let’s Get Free: A Hip-Hop Theory of Justice. New York: The New Press.

  3. “Quite belatedly, I came to see that mass incarceration in the United States has, in fact, emerged as a comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow. “

    You mean, aside from the fact that Jim Crow targeted innocent people on the basis of race, and mass incarceration disproportionately effects minorities only because minorities chose to disproportionately commit crimes?

    Though I’ll agree that the war on drugs needs to go. Not because it has a racially disproportionate impact on minorities due to their own choices, but because a war on drugs is unjust no matter the racial distribution of those it harms.

  4. AYY says:

    “This is not the fault of one political party. It is not merely the fault of biased police, prosecutors, or judges. We have all been complicit in the emergence of mass incarceration in the United States. In the so-called era of colorblindness, we have become blind not so much to race as to the re-emergence of caste in America. We have turned away from those labeled “criminals,” viewing them as “others” unworthy of our concern. Some of us have been complicit by remaining silent, even as we have a sneaking suspicion that something has gone horribly wrong. We must break that silence and awaken to the human-rights nightmare that is occurring on our watch”

    Am I reading this right? It’s the fault of everyone but the criminals?

  5. Ken Rhodes says:

    @AYY — No, I don’t think you’re reading this right, because I don’t think you’ve thought through the antecedent of the pronoun “it” in your closing question.

    I don’t think Frank is addressing the “it” of crime, but rather the subject of disparity in enforcement and disparity in punishment.

    I was stopped for speeding some years ago. I wasn’t likely endangering anybody, since I was on a sparsely travelled stretch of highway, but I was way over the limit. The officer who stopped me saw a fifty-something white man in a suit and tie. I said to him, “Officer, I sure would appreciate it if you could give me a warning instead of a ticket. I have a clean driving record, and my wife will never let me hear the end of it if I screw it up.”

    He gave me a stern [verbal] warning, and he told me to be careful, because the next officer might not be so easy.

    Try to picture that same conversation if I had been a twenty-something black man.

  6. Orin Kerr says:

    Ken,

    If it is true that officers are more likely to give a break to fifty-something white men in suits who ask for special treatment — which I think is sometimes true — one way to have more even-handed justice would be for the fifty-something white men in suits to just take the ticket rather than ask for special treatment.

  7. David Friedlander says:

    The US might or might not have too many or overpopulated prisons. However the analysis needs to begin with whether the accused committed a crime or not. This or that drug law might be too harsh, however a modern civil society expect its citizens to obey the law. The fact that many minorities are in prison for violating drug wars doesn’t address the need to abide by disagreeable laws (within reason).
    Example – I think jaywalking is a dumb irrational law however I understand that I’ll be held accountable for violating it.

  8. AYY says:

    Ken, after what you said about what you told the officer, I sure hope Mrs. Rhodes isn’t reading this blog.

    But you’re drawing the wrong comparison. The comparison isn’t between you and a 20 something Black man, but between you and and a well dressed, articulate Black man in his 50’s who asked the officer politely to give him a warning because otherwise he’d never hear the end of it from his wife.
    You made the case based on something he could relate to. It’s a type of male bonding–and that goes across all races.

    As for the rest of your comment, if there’s a disparity then the solution is either arrest more guilty White people or arrest fewer guilty Black people. She doesn’t seem to argue that more guilty White people should be arrested.

    But if she wants fewer guilty Black people arrested, then the problem is that there are a lot of Black people who have to live in crime infested areas. These people don’t want the drug dealers on their corners, and want the criminals taken off the streets. It’s those people we should be listening to, rather than some ivory tower professor who can afford to live in a neighborhood where people can walk out at night without having to run into drug dealers standing on their corners.

  9. Ken Rhodes says:

    {{If it is true that officers are more likely to give a break to fifty-something white men in suits who ask for special treatment — which I think is sometimes true — one way to have more even-handed justice would be for the fifty-something white men in suits to just take the ticket rather than ask for special treatment.}}

    Orin, what an excellent plan to address the inequities in the application of justice. Just expect ALL the criminals to go quietly to their fate. Then we don’t have to worry about uneven enforcement.

  10. Orin Kerr says:

    Ken,

    Perhaps I misunderstood your example, and if so, I apologize. But it seemed to me that you deliberately crafted a plea for special treatment by trying to take advantage of the officer’s biases. You then lamented the inequality that resulted when you were given the special treatment you asked for. If our shared goal is equal treatment, then one way to ensure it is to minimize the opportunity for unequal treatment by asking for special treatment.

    Of course, I’m assuming that our interest in equality is greater than our self-interest, which may or may not be true depending on the person.

  11. Ken Rhodes says:

    Orin — I, in turn, apologize for the snide retort I wrote, and no, you didn’t misunderstand my example, but I didn’t make my point clear.

    My example was not intended to show that I was a good salesman. Rather, it was intended to show that the police officer had a predisposition to treat me gently, and I was able to take advantage of that.

    If you read “predisposition” as “bias,” then you see why those folks who do not fall at the “lucky” end of the perceptual spectrum are held disproportionately to standards of laws that are less vigorously enforced at the other end of the spectrum. I cited the true example because it was probably harmless in its specifics, but it was indicative of enforcement bias which is likely present in much more serious cases. And drug enforcement seems to be highly biased at all points along the “severity” line, from pot to heroin and serious chemicals.

    Related, and probably equally important as “enforcement bias” is the corrolary issue of “penalty bias.” We likely believe that armed robbery needs severe penalties for deterrence, and that they are likely applied with reasonable fairness across all social strata. OTOH, drug crimes are pretty extreme in penalty biases. Some drug crimes are penalized much more severely than others of seemingly equivalent severity. The example of cocaine vs. crack is the one often cited. And the entire range of penalties for drug crimes is on a scale that often seems (to me, anyway) exaggerated for the harm inflicted by the crimes.

    Finally, recidivist sentencing laws (“three strikes” and the like) seem to inflict sentences without sensible judicial judgment of what constitutes “recidivism,” which severely disadvantages defendants who are more likely to be detained for minor offenses. When the enforcement bias comes into play in those minor offenses, then the penalties may be magnified far beyond the objectives the legislature intended.