The New Jim Crow: Mass Incarceration in the Age of Colorblindness

by Michelle Alexander

  The Supreme Court seemed to agree. In 1944, in Smith v. Allwright, the Supreme Court ended the use of the all-white primary election; and in 1946, the Court ruled that state laws requiring segregation on interstate buses were unconstitutional. Two years later, the Court voided any real estate agreements that racially discriminated against purchasers, and in 1949 the Court ruled that Texas’s segregated law school for blacks was inherently unequal and inferior in every respect to its law school for whites. In 1950, in McLaurin v. Oklahoma, it declared that Oklahoma had to desegregate its law school. Thus, even before Brown, the Supreme Court had already begun to set in motion a striking pattern of desegregation.

  Brown v. Board of Education was unique, however. It signaled the end of “home rule” in the South with respect to racial affairs. Earlier decisions had chipped away at the “separate but equal” doctrine, yet Jim Crow had managed to adapt to the changing legal environment, and most Southerners had remained confident that the institution would survive. Brown threatened not only to abolish segregation in public schools, but also, by implication, the entire system of legalized discrimination in the South. After more than fifty years of nearly complete deference to Southern states and noninterference in their racial affairs, Brown suggested a reversal in course.

  A mood of outrage and defiance swept the South, not unlike the reaction to emancipation and Reconstruction following the Civil War. Again, racial equality was being forced upon the South by the federal government, and by 1956 Southern white opposition to desegregation mushroomed into a vicious backlash. In Congress, North Carolina Senator Sam Erwin Jr. drafted a racist polemic, “the Southern Manifesto,” which vowed to fight to maintain Jim Crow by all legal means. Erwin succeeded in obtaining the support of 101 out of 128 members of Congress from the eleven original Confederate states.

  A fresh wave of white terror was hurled at those who supported the dismantling of Jim Crow. White Citizens’ Councils were formed in almost every Southern city and backwater town, comprised primarily of middle- to upper-middle-class whites in business and the clergy. Just as Southern legislatures had passed the black codes in response to the early steps of Reconstruction, in the years immediately following Brown v. Board, five Southern legislatures passed nearly fifty new Jim Crow laws. In the streets, resistance turned violent. The Ku Klux Klan reasserted itself as a powerful terrorist organization, committing castrations, killings, and the bombing of black homes and churches. NAACP leaders were beaten, pistol-whipped, and shot. As quickly as it began, desegregation across the South ground to a halt. In 1958, thirteen school systems were desegregated; in 1960, only seventeen.31

  In the absence of a massive, grassroots movement directly challenging the racial caste system, Jim Crow might be alive and well today. Yet in the 1950s, a civil rights movement was brewing, emboldened by the Supreme Court’s decisions and a shifting domestic and international political environment. With extraordinary bravery, civil rights leaders, activists, and progressive clergy launched boycotts, marches, and sit-ins protesting the Jim Crow system. They endured fire hoses, police dogs, bombings, and beatings by white mobs, as well as by the police. Once again, federal troops were sent to the South to provide protection for blacks attempting to exercise their civil rights, and the violent reaction of white racists was met with horror in the North.

  The dramatic high point of the Civil Rights Movement occurred in 1963. The Southern struggle had grown from a modest group of black students demonstrating peacefully at one lunch counter to the largest mass movement for racial reform and civil rights in the twentieth century. 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.32

  On June 12, 1963, President Kennedy announced that he would deliver to Congress a strong civil rights bill, a declaration that transformed him into a widely recognized ally of the Civil Rights Movement. Following Kennedy’s assassination, President Johnson professed his commitment to the goal of “the full assimilation of more than twenty million Negroes into American life,” and ensured the passage of comprehensive civil rights legislation. The Civil Rights Act of 1964 formally dismantled the Jim Crow system of discrimination in public accommodations, employment, voting, education, and federally financed activities. The Voting Rights Act of 1965 arguably had even greater scope, as it rendered illegal numerous discriminatory barriers to effective political participation by African Americans and mandated federal review of all new voting regulations so that it would be possible to determine whether their use would perpetuate voting discrimination.

  Within five years, the effects of the civil rights revolution were undeniable. Between 1964 and 1969, the percentage of African American adults registered to vote in the South soared. In Alabama the rate leaped from 19.3 percent to 61.3 percent; in Georgia, 27.4 percent to 60.4 percent; in Louisiana, 31.6 percent to 60.8 percent; and in Mississippi, 6.7 percent to 66.5 percent.33 Suddenly black children could shop in department stores, eat at restaurants, drink from water fountains, and go to amusement parks that were once off-limits. Miscegenation laws were declared unconstitutional, and the rate of interracial marriage climbed.

  While dramatic progress was apparent in the political and social realms, civil rights activists became increasingly concerned that, without major economic reforms, the vast majority of blacks would remain locked in poverty. Thus at the peak of the Civil Rights Movement, activists and others began to turn their attention to economic problems, arguing that socioeconomic inequality interacted with racism to produce crippling poverty and related social problems. Economic issues emerged as a major focus of discontent. As political scientists Frances Fox Piven and Richard Cloward have described, “blacks became more indignant over their condition—not only as an oppressed racial minority in a white society but as poor people in an affluent one.”34 Activists organized boycotts, picket lines, and demonstrations to attack discrimination in access to jobs and the denial of economic opportunity.

  Perhaps the most famous demonstration in support of economic justice is the March on Washington for Jobs and Economic Freedom in August 1963. The wave of activism associated with economic justice helped to focus President Kennedy’s attention on poverty and black unemployment. In the summer of 1963, he initiated a series of staff studies on those subjects. By the end of the summer, he declared his intention to make the eradication of poverty a key legislative objective in 1964.35 Following Kennedy’s assassination, President Lyndon Johnson embraced the antipoverty rhetoric with great passion, calling for an “unconditional war on poverty,” in his State of the Union Address in January 1964. Weeks later he proposed to Congress the Economic Opportunities Bill of 1964.

  The shift in focus served to align the goals of the Civil Rights Movement with key political goals of poor and working-class whites, who were also demanding economic reforms. 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. Martin Luther King Jr. and other civil rights leaders made it clear that they viewed the eradication of economic inequality as the next front in the “human rights movement” and made great efforts to build multiracial coalitions that sought economic justice for all. Genuine equality for black people, King reasoned, demanded a radical restructuring of society, one that would address the needs of the black and white poor throughout the country. Shortly before his assassination, he envisioned bringing to Washington, D.C., thousands of the nation’s disadvantaged in an interracial alliance that embraced rural and ghetto blacks, Appalachian whites, Mexican Americans, Puerto Ricans, and Native Americans to demand jobs and income—the right to live. In a speech delivered in 1968, King acknowledged there had been some progress for blacks since the passage of the Civil Rights Act of 19
64, but insisted that the current challenges required even greater resolve and that the entire nation must be transformed for economic justice to be more than a dream for poor people of all colors. As historian Gerald McKnight observes, “King was proposing nothing less than a radical transformation of the Civil Rights Movement into a populist crusade calling for redistribution of economic and political power. America’s only civil rights leader was now focusing on class issues and was planning to descend on Washington with an army of poor to shake the foundations of the power structure and force the government to respond to the needs of the ignored underclass.”36

  With the success of the Civil Rights Movement and the launching of the Poor People’s Movement, it was apparent to all that a major disruption in the nation’s racial equilibrium had occurred. Yet as we shall see below, Negroes stood only a “brief moment in the sun.” Conservative whites began, once again, to search for a new racial order that would conform to the needs and constraints of the time. This process took place with the understanding that whatever the new order would be, it would have to be formally race-neutral—it could not involve explicit or clearly intentional race discrimination. 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.

  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.”

  The Birth of Mass Incarceration

  The rhetoric of “law and order” was first mobilized in the late 1950s as Southern governors and law enforcement officials attempted to generate and mobilize white opposition to the Civil Rights Movement. In the years following Brown v. Board of Education, civil rights activists used direct-action tactics in an effort to force reluctant Southern states to desegregate public facilities. 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.”

  For more than a decade—from the mid-1950s until the late 1960s—conservatives systematically and strategically linked opposition to civil 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. Civil rights protests were frequently depicted as criminal rather than political in nature, and federal courts were accused of excessive “lenience” toward lawlessness, thereby contributing to the spread of crime. In the words of then-Vice President Richard Nixon, the increasing crime rate “can be traced directly to the spread of the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey and when to disobey them.”37 Some segregationists went further, insisting that integration causes crime, citing lower crime rates in Southern states as evidence that segregation was necessary. In the words of Representative John Bell Williams, “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.”38

  Unfortunately, at the same time that civil rights were being identified as a threat to law and order, the FBI was reporting fairly dramatic increases in the national crime rate. Despite significant controversy over the accuracy of the statistics, these reports received a great deal of publicity and were offered as further evidence of the breakdown in lawfulness, morality, and social stability.39 To make matters worse, riots erupted in the summer of 1964 in Harlem and Rochester, followed by a series of uprisings that swept the nation following the assassination of Martin Luther King Jr. in 1968. The racial imagery associated with the riots gave fuel to the argument that civil rights for blacks led to rampant crime. Cities like Philadelphia and Rochester were described as being victims of their own generosity. Conservatives argued that, having welcomed blacks migrating from the South, these cities “were repaid with crime-ridden slums and black discontent.”40

  Barry Goldwater, in his 1964 presidential campaign, aggressively exploited the riots and fears of black crime, laying the foundation for the “get tough on crime” movement that would emerge years later. In a widely quoted speech, Goldwater warned voters, “Choose the way of [the Johnson] Administration and you have the way of mobs in the street.”41 Civil rights activists who argued that the uprisings were directly related to widespread police harassment and abuse were dismissed by conservatives out of hand. “If [blacks] conduct themselves in an orderly way, they will not have to worry about police brutality,” argued West Virginia Senator Robert Byrd.42

  Early on, little effort was made to disguise the racial motivations behind the law and order rhetoric and the harsh criminal justice legislation proposed in Congress. The most ardent opponents of civil rights legislation and desegregation were the most active on the emerging crime issue. Well-known segregationist George Wallace, for example, argued that “the same Supreme Court that ordered integration and encouraged civil rights legislation” was now “bending over backwards to help criminals.”43 Three other prominent segregationists—Senators McClellan, Erwin, and Thurmond—led the legislative battle to curb the rights of criminal defendants.44

  As the rules of acceptable discourse changed, however, segregationists distanced themselves from an explicitly racist agenda. They developed instead the racially sanitized rhetoric of “cracking down on crime”—rhetoric that is now used freely by politicians of every stripe. Conservative politicians who embraced this rhetoric purposefully failed to distinguish between the direct action tactics of civil rights activists, violent rebellions in inner cities, and traditional crimes of an economic or violent nature. Instead, as Marc Mauer of the Sentencing Project has noted, “all of these phenomenon were subsumed under the heading of ‘crime in the streets.’”45

  After the passage of the Civil Rights Act, the public debate shifted focus from segregation to crime. The battle lines, however, remained largely the same. Positions taken on crime policies typically cohered along lines of racial ideology. Political scientist Vesla Weaver explains: “Votes cast in opposition to open housing, busing, the Civil Rights Act, and other measures time and again showed the same divisions as votes for amendments to crime bills.... Members of Congress who voted against civil rights measures proactively designed crime legislation and actively fought for their proposals.”46

  Although law and order rhetoric ultimately failed to prevent the formal dismantling of the Jim Crow system, it proved highly effective in appealing to poor and working-class whites, particularly in the South, who were opposed to integration and frustrated by the Democratic Party’s apparent support for the Civil Rights Movement. As Weaver notes, “rather than fading, the segregationists’ crime-race argument was reframed, with a slightly different veneer,” and eventually became the foundation of the conservative agenda on crime.47 In fact, law and order rhetoric—first employed by segregationists—would eventually contribute to a major realignment of political parties in the United States.

  Following the Civil War, party alignment was almost entirel
y regional. The South was solidly Democratic, embittered by the war, firmly committed to the maintenance of a racial caste system, and extremely hostile to federal intervention on behalf of African Americans. The North was overwhelming Republican and, while Republicans were ambivalent about equality for African Americans, they were far more inclined to adopt and implement racial justice reforms than their Democratic counterparts below the Mason-Dixon line.

  The Great Depression effectuated a sea change in American race relations and party alignment. The New Deal—spearheaded by the Democratic Party of President Franklin D. Roosevelt—was designed to alleviate the suffering of poor people in the midst of the Depression, and blacks, the poorest of the poor, benefited disproportionately. While New Deal programs were rife with discrimination in their administration, they at least included blacks within the pool of beneficiaries—a development, historian Michael Klarman has noted, that was “sufficient to raise black hopes and expectations after decades of malign neglect from Washington.”48 Poor and working-class whites in both the North and South, no less than African Americans, responded positively to the New Deal, anxious for meaningful economic relief. As a result, the Democratic New Deal coalition evolved into an alliance of urban ethnic groups and the white South that dominated electoral politics from 1932 to the early 1960s.