The New Jim Crow

by Alexander, Michelle

  In October 1985, the DEA sent Robert Stutman to serve as director of its New York City office and charged him with the responsibility of shoring up public support for the administration’s new war. Stutman developed a strategy for improving relations with the news media and sought to draw journalists’ attention to the spread of crack cocaine. As Stutman recounted years later:The agents would hear me give hundreds of presentations to the media as I attempted to call attention to the drug scourge. I wasted no time in pointing out its [the DEA’s] new accomplishments against the drug traffickers.... In order to convince Washington, I needed to make it [drugs] a national issue and quickly. I began a lobbying effort and I used the media. The media were only too willing to cooperate, because as far the New York media was concerned, crack was the hottest combat reporting story to come along since the end of the Vietnam War.81

  The strategy bore fruit. In June 1986, Newsweek declared crack to be the biggest story since Vietnam/Watergate, and in August of that year, Time magazine termed crack “the issue of the year.” Thousands of stories about the crack crisis flooded the airwaves and newsstands, and the stories had a clear racial subtext. The articles typically featured black “crack whores,” “crack babies,” and “gangbangers,” reinforcing already prevalent racial stereotypes of black women as irresponsible, selfish “welfare queens,” and black men as “predators”—part of an inferior and criminal subculture.82 When two popular sports figures, Len Bias and Don Rogers, died of cocaine overdoses in June 1986, the media erroneously reported their deaths as caused by crack, contributing to the media firestorm and groundswell of political activity and public concern relating to the new “demon drug,” crack cocaine. The bonanza continued into 1989, as the media continued to disseminate claims that crack was an “epidemic,” a “plague,” “instantly addictive,” and extraordinarily dangerous—claims that have now been proven false or highly misleading. Between October 1988 and October 1989, the Washington Post alone ran 1,565 stories about the “drug scourge.” Richard Harwood, the Post’s ombudsmen, eventually admitted the paper had lost “a proper sense of perspective” due to such a “hyperbole epidemic.” He said that “politicians are doing a number on people’s heads.”83 Sociologists Craig Reinarman and Harry Levine later made a similar point: “Crack was a god-send to the Right.... It could not have appeared at a more politically opportune moment.”84

  In September 1986, with the media frenzy at full throttle, the House passed legislation that allocated $2 billion to the antidrug crusade, required the participation of the military in narcotics control efforts, allowed the death penalty for some drug-related crimes, and authorized the admission of some illegally obtained evidence in drug trials. Later that month, the Senate proposed even tougher antidrug legislation, and shortly thereafter, the president signed the Anti-Drug Abuse Act of 1986 into law. Among other harsh penalties, the legislation included mandatory minimum sentences for the distribution of cocaine, including far more severe punishment for distribution of crack—associated with blacks—than powder cocaine, associated with whites.

  Few criticisms of the legislation could be heard en route to enactment. One senator insisted that crack had become a scapegoat distracting the public’s attention from the true causes of our social ills, arguing: “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.”85 Critical voices, however, were lonely ones.

  Congress revisited drug policy in 1988. The resulting legislation was once again extraordinarily punitive, this time extending far beyond traditional criminal punishments and including new “civil penalties” for drug offenders. The new Anti-Drug Abuse Act authorized public housing authorities to evict any tenant who allows any form of drug-related criminal activity to occur on or near public housing premises and eliminated many federal benefits, including student loans, for anyone convicted of a drug offense. The act also expanded use of the death penalty for serious drug-related offenses and imposed new mandatory minimums for drug offenses, including a five-year mandatory minimum for simple possession of cocaine base—with no evidence of intent to sell. Remarkably, the penalty would apply to first-time offenders. The severity of this punishment was unprecedented in the federal system. Until 1988, one year of imprisonment had been the maximum for possession of any amount of any drug. Members of the Congressional Black Caucus (CBC) were mixed in their assessment of the new legislation—some believing the harsh penalties were necessary, others convinced that the laws were biased and harmful to African Americans. Ultimately the legislation passed by an overwhelming margin—346 to 11. Six of the negative votes came from the CBC.86

  The War on Drugs proved popular among key white voters, particularly whites who remained resentful of black progress, civil rights enforcement, and affirmative action. Beginning in the 1970s, researchers found that racial attitudes—not crime rates or likelihood of victimization—are an important determinant of white support for “get tough on crime” and antiwelfare measures. 87 Among whites, those expressing the highest degree of concern about crime also tend to oppose racial reform, and their punitive attitudes toward crime are largely unrelated to their likelihood of victimization.88 Whites, on average, are more punitive than blacks, despite the fact that blacks are far more likely to be victims of crime. Rural whites are often the most punitive, even though they are least likely to be crime victims.89 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.

  Reagan’s successor, President George Bush Sr., did not hesitate to employ implicit racial appeals, having learned from the success of other conservative politicians that subtle negative references to race could mobilize poor and working-class whites who once were loyal to the Democratic Party. Bush’s most famous racial appeal, the Willie Horton ad, featured a dark-skinned black man, a convicted murderer who escaped while on a work furlough and then raped and murdered a white woman in her home. The ad blamed Bush’s opponent, Massachusetts governor Michael Dukakis, for the death of the white woman, because he approved the furlough program. For months, the ad played repeatedly on network news stations and was the subject of incessant political commentary. Though controversial, the ad was stunningly effective; it destroyed Dukakis’s chances of ever becoming president.

  Once in the Oval Office, Bush stayed on message, opposing affirmative action and aggressive civil rights enforcement, and embracing the drug war with great enthusiasm. In August 1989, President Bush characterized drug use as “the most pressing problem facing the nation.”90 Shortly thereafter, a New York Times/CBS News Poll reported that 64 percent of those polled—the highest percentage ever recorded—now thought that drugs were the most significant problem in the United States.91 This surge of public concern did not correspond to a dramatic shift in illegal drug activity, but instead was the product of a carefully orchestrated political campaign. The level of public concern about crime and drugs was only weakly correlated with actual crime rates, but highly correlated with political initiatives, campaigns, and partisan appeals.92

  The shift to a general attitude of “toughness” toward problems associated with communities of color began in the 1960s, when the gains and goals of the Civil Rights Movement began to require real sacrifices on the part of white Americans, and conservative politicians found they could mobilize white racial resentment by vowing to crack down on crime. By the late 1980s, however, not only conservatives played leading roles in the get-tough movement, spouting the rhetoric once associated only with segregationists. Democratic politicians and policy makers were now attempting to wrest control of the crime and drug issues from Republicans by advocating stricter anticrime and antidrug laws—all in an effort to
win back the so-called “swing voters” who were defecting to the Republican Party. Somewhat ironically, these “new Democrats” were joined by virulent racists, most notably the Ku Klux Klan, which announced in 1990 that it intended to “join the battle against illegal drugs” by becoming the “eyes and ears of the police.”93 Progressives concerned about racial justice in this period were mostly silent about the War on Drugs, preferring to channel their energy toward defense of affirmative action and other perceived gains of the Civil Rights Movement.

  In the early 1990s, resistance to the emergence of a new system of racialized social control collapsed across the political spectrum. A century earlier, a similar political dynamic had resulted in the birth of Jim Crow. 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. As had happened before, former allies of African Americans—as much as conservatives—adopted a political strategy that required them to prove how “tough” they could be on “them,” the dark-skinned pariahs.

  The results were immediate. As law enforcement budgets exploded, so did prison and jail populations. In 1991, the Sentencing Project reported that the number of people behind bars in the United States was unprecedented in world history, and that one fourth of young African American men were now under the control of the criminal justice system. Despite the jaw-dropping impact of the “get tough” movement on the African American community, neither the Democrats nor the Republicans revealed any inclination to slow the pace of incarceration.

  To the contrary, in 1992, presidential candidate Bill Clinton vowed that he would never permit any Republican to be perceived as tougher on crime than he. True to his word, just weeks before the critical New Hampshire primary, Clinton chose to fly home to Arkansas to oversee the execution of Ricky Ray Rector, a mentally impaired black man who had so little conception of what was about to happen to him that he asked for the dessert from his last meal to be saved for him until the morning. After the execution, Clinton remarked, “I can be nicked a lot, but no one can say I’m soft on crime.”94

  Once elected, Clinton endorsed the idea of a federal “three strikes and you’re out” law, which he advocated in his 1994 State of the Union address to enthusiastic applause on both sides of the aisle. The $30 billion crime bill sent to President Clinton in August 1994 was hailed as a victory for the Democrats, who “were able to wrest the crime issue from the Republicans and make it their own.”95 The bill created dozens of new federal capital crimes, mandated life sentences for some three-time offenders, and authorized more than $16 billion for state prison grants and expansion of state and local police forces. Far from resisting the emergence of the new caste system, Clinton escalated the drug war beyond what conservatives had imagined possible a decade earlier. 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.”96

  Clinton eventually moved beyond crime and capitulated to the conservative racial agenda on welfare. This move, like his “get tough” rhetoric and policies, was part of a grand strategy articulated by the “new Democrats” to appeal to the elusive white swing voters. In so doing, Clinton—more than any other president—created the current racial undercaste. He signed the Personal Responsibility and Work Opportunity Reconciliation Act, which “ended welfare as we know it,” and replaced it with a block grant to states called Temporary Assistance to Needy Families (TANF). TANF imposed a five-year lifetime limit on welfare assistance, as well as a permanent, lifetime ban on eligibility for welfare and food stamps for anyone convicted of a felony drug offense—including simple possession of marijuana.

  Clinton did not stop there. Determined to prove how “tough” he could be on “them,” Clinton also made it easier for federally-assisted public housing projects to exclude anyone with a criminal history—an extraordinarily harsh step in the midst of a drug war aimed at racial and ethnic minorities. In his announcement of the “One Strike and You’re Out” Initiative, Clinton explained: “From now on, the rule for residents who commit crime and peddle drugs should be one strike and you’re out.”97 The new rule promised to be “the toughest admission and eviction policy that HUD has implemented.” 98 Thus, for countless poor people, particularly racial minorities targeted by the drug war, public housing was no longer available, leaving many of them homeless—locked out not only of mainstream society, but their own homes.

  The law and order perspective, first introduced during the peak of the Civil Rights Movement by rabid segregationists, had become nearly hegemonic two decades later. By the mid-1990s, no serious alternatives to the War on Drugs and “get tough” movement were being entertained in mainstream political discourse. Once again, in response to a major disruption in the prevailing racial order—this time the civil rights gains of the 1960s—a new system of racialized social control was created by exploiting the vulnerabilities and racial resentments of poor and working-class whites. More than 2 million people found themselves behind bars at the turn of the twenty-first century, and millions more were relegated to the margins of mainstream society, banished to a political and social space not unlike Jim Crow, where discrimination in employment, housing, and access to education was perfectly legal, and where they could be denied the right to vote. The system functioned relatively automatically, and the prevailing system of racial meanings, identities, and ideologies already seemed natural. Ninety percent of those admitted to prison for drug offenses in many states were black or Latino, yet the mass incarceration of communities of color was explained in race-neutral terms, an adaptation to the needs and demands of the current political climate. The New Jim Crow was born.

  2

  The Lockdown

  We may think we know how the criminal justice system works. Television is overloaded with fictional dramas about police, crime, and prosecutors—shows such as Law & Order. These fictional dramas, like the evening news, tend to focus on individual stories of crime, victimization, and punishment, and the stories are typically told from the point of view of law enforcement. A charismatic police officer, investigator, or prosecutor struggles with his own demons while heroically trying to solve a horrible crime. He ultimately achieves a personal and moral victory by finding the bad guy and throwing him in jail. That is the made-for-TV version of the criminal justice system. It perpetuates the myth that the primary function of the system is to keep our streets safe and our homes secure by rooting out dangerous criminals and punishing them. These television shows, especially those that romanticize drug-law enforcement, are the modern-day equivalent of the old movies portraying happy slaves, the fictional gloss placed on a brutal system of racialized oppression and control.

  Those who have been swept within the criminal justice system know that the way the system actually works bears little resemblance to what happens on television or in movies. Full-blown trials of guilt or innocence rarely occur; many people never even meet with an attorney; witnesses are routinely paid and coerced by the government; police regularly stop and search people for no reason whatsoever; penalties for many crimes are so severe that innocent people plead guilty, accepting plea bargains to avoid harsh mandatory sentences; and children, even as young as fourteen, are sent to adult prisons. Rules of law and procedure, such as “guilt beyond a reasonable doubt” or “probable cause” or “reasonable suspicion,” can easily be found in court cases and law-school textbooks but are much harder to find in real life.

  In this chapter, we shall see how the system of mass incarceration actually works. Our focus is the War on Drugs. The reason is simple: Convi
ctions 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 state prisoners between 1985 and 2000.1 Approximately a half-million people are in prison or jail for a drug offense today, compared to an estimated 41,100 in 1980—an increase of 1,100 percent.2 Drug arrests have tripled since 1980. As a result, more than 31 million people have been arrested for drug offenses since the drug war began.3 Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the War on Drugs.

  Before we begin our tour of the drug war, it is worthwhile to get 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.4