The New Jim Crow

by Alexander, Michelle

  The collapse of inner-city economies coincided with the conservative backlash against the Civil Rights Movement, resulting in the perfect storm. Almost overnight, black men found themselves unnecessary to the American economy and demonized by mainstream society. No longer needed to pick cotton in the fields or labor in factories, lower-class black men were hauled off to prison in droves. They were vilified in the media and condemned for their condition as part of a well-orchestrated political campaign to build a new white, Republican majority in the South. Decades later, curious onlookers in the grips of denial would wonder aloud, “Where have all the black men gone?”

  No one has made this point better than sociologist Loïc Wacquant. Wacquant has written extensively about the cyclical nature of racial caste in America. He emphasizes that the one thing that makes the current penal apparatus strikingly different from previous racial caste systems is that “it does not carry out the positive economic mission of recruitment and disciplining of the workforce.”77 Instead it serves only to warehouse poor black and brown people for increasingly lengthy periods of time, often until old age. The new system does not seek primarily to benefit unfairly from black labor, as earlier caste systems have, but instead views African Americans as largely irrelevant and unnecessary to the newly structured economy—an economy that is no longer driven by unskilled labor.

  It is fair to say that we have witnessed an evolution in the United States from a racial caste system based entirely on exploitation (slavery), to one based largely on subordination (Jim Crow), to one defined by marginalization (mass incarceration). While marginalization may sound far preferable to exploitation, it may prove to be even more dangerous. Extreme marginalization, as we have seen throughout world history, poses the risk of extermination. Tragedies such as the Holocaust in Germany or ethnic cleansing in Bosnia are traceable to the extreme marginalization and stigmatization of racial and ethnic groups. As legal scholar john a. powell once commented, only half in jest, “It’s actually better to be exploited than marginalized, in some respects, because if you’re exploited presumably you’re still needed.”78

  Viewed in this light, the frantic accusations of genocide by poor blacks in the early years of the War on Drugs seem less paranoid. The intuition of those residing in ghetto communities that they had suddenly become disposable was rooted in real changes in the economy—changes that have been devastating to poor black communities as factories have closed, low-skill jobs have disappeared, and all those who had the means to flee the ghetto did. The sense among those left behind that society no longer has use for them, and that the government now aims simply to get rid of them, reflects a reality that many of us who claim to care prefer to avoid simply by changing channels.

  6

  The Fire This Time

  Shortly after sunrise on September 20, 2007, more than ten thousand protestors had already descended on Jena, Louisiana, a small town of about three thousand people. Because of the congestion on the roads to Jena, some protestors left their vehicles and walked into town on foot. Jesse Jackson, Al Sharpton, and Martin Luther King III were among those who traveled hundreds of miles to participate in what was heralded as “the beginnings of a new civil rights movement.”1

  Black youth turned out to protest in record numbers, joined by rappers Mos Def, Ice Cube, and Salt-n-Pepa. National news media swarmed the town; cameras rolled as thousands of protestors from all over the country poured into the rural community to condemn the attempted murder charges filed against six black teenagers who allegedly beat a white classmate at a local high school.

  This was no ordinary schoolyard fight. Many believed the attack was related to a string of racially charged conflicts and controversies at the school, most notably the hanging of nooses from a tree in the school’s main courtyard. Rev. Al Sharpton captured the spirit of the protest when he stated boldly, “We’ve gone from plantations to penitentiaries.... They have tried to create a criminal justice system that particularly targets our young black men. And now we sit and stand in a city that says it’s a prank to hang a hangman’s noose, but that it is attempted murder to have a fight. We cannot sit by silently. That’s why we came, and that’s why we intend to keep coming.”2

  For a moment, the nation’s eyes were trained on the plight of the “Jena 6,” and debates could be heard in barber shops, in cafés, and in lines at grocery stores about whether the criminal justice system was, in fact, biased against black men or whether the black teens got exactly what they deserved for a brutal attack on a defenseless young white teen. Grim statistics about the number of black men in prison were trotted out, and commentators argued over whether those numbers reflected crime rates or bias and whether white teens would ever be charged with attempted murder and tried as adults if they attacked a black kid in a schoolyard fight.

  The uprising on behalf of the six black teens paid off. Although the prosecutor refused to back down from his decision to bring adult charges against the youths, an appellate court ultimately ruled the teens had to be tried as juveniles, and many of the charges were reduced or dropped. While this result undoubtedly cheered the thousands of Jena 6 supporters around the country, the spectacle may have been oddly unsettling to parents of children imprisoned for far less serious crimes, including those locked up for minor drug offenses. Where were the protestors and civil rights leaders when their children were tried as adults and carted off to adult prisons? Where was the national news media then? Their children were accused of no crimes of violence, no acts of cruelty, yet they faced adult criminal charges and the prospect of serving years, perhaps decades, behind bars for possessing or selling illegal drugs—crimes that go largely ignored when committed by white youth. Why the outpouring of support and the promises of a “new civil rights movement” on behalf of the Jena youth but not their children?

  If there had been no nooses hanging from a schoolyard tree, there would have been no Jena 6—no mass protests, no live coverage on CNN. The decision to charge six black teens as adults with attempted murder in connection with a schoolyard fight was understood as possibly racist by the mainstream media and some protestors only because of the sensational fact that nooses were first hung from a tree. It was this relic—the noose—showing up so brazenly and leading to a series of racially charged conflicts and controversies that made it possible for the news media and the country as a whole to entertain the possibility that these six youths may well have been treated to Jim Crow justice. It was this evidence of old-fashioned racism that made it possible for a new generation of protestors to frame the attempted murder charges against six black teens in a manner that mainstream America would understand as racist.

  Ironically, it was precisely this framing that ensured that the events in Jena would not actually launch a “new civil rights movement.” A new civil rights movement cannot be organized around the relics of the earlier system of control if it is to address meaningfully the racial realities of our time. Any racial justice movement, to be successful, must vigorously challenge the public consensus that underlies the prevailing system of control. Nooses, racial slurs, and overt bigotry are widely condemned by people across the political spectrum; they are understood to be remnants of the past, no longer reflective of the prevailing public consensus about race. Challenging these forms of racism is certainly necessary, as we must always remain vigilant, but it will do little to shake the foundations of the current system of control. The new caste system, unlike its predecessors, is officially colorblind. We must deal with it on its own terms.

  Rethinking Denial—Or, Where Are Civil Rights Advocates When You Need Them?

  Dealing with this system on its own terms is complicated by the problem of denial. Few Americans today recognize mass incarceration for what it is: a new caste system thinly veiled by the cloak of colorblindness. Hundreds of thousands of people of color are swept into this system and released every year, yet we rationalize the systematic discrimination and exclusion and turn a blind eye to the suffering. Our colle
ctive denial is not merely an inconvenient fact; it is a major stumbling block to public understanding of the role of race in our society, and it sharply limits the opportunities for truly trans-formative collective action.

  The general public’s collective denial is fairly easy to forgive—if not excuse—for all the reasons discussed in chapter 5. The awkward silence of the civil rights community, however, is more problematic. If something akin to a racial caste system truly exists, why has the civil rights community been so slow to acknowledge it? Indeed, how could civil rights organizations, some of which are larger and better funded than at any point in American history, have allowed this human rights nightmare to occur on their watch?

  The answer is not that civil rights advocates are indifferent to racial bias in the criminal justice system. To the contrary, we care quite a lot. Nor have we been entirely ignorant of the realities of the new caste system. In recent years, civil rights advocates have launched important reform efforts, most notably the campaigns challenging felon disenfranchisement laws, crack-sentencing policies, and racial profiling by law enforcement. Civil rights groups have also developed litigation and important coalitions related to the school-to-prison pipeline, inadequate indigent defense, and juvenile justice reform, to name a few.

  Despite these important efforts, what is most striking about the civil rights community’s response to the mass incarceration of people of color is the relative quiet. Given the magnitude—the sheer scale—of the New Jim Crow, one would expect that the War on Drugs would be the top priority of every civil rights organization in the country. Conferences, strategy sessions, and debates regarding how best to build a movement to dismantle the new caste system would be occurring on a regular basis. Major grassroots organizing efforts would be under way in nearly every state and city nationwide. Foundations would be lobbied to prioritize criminal justice reform. Media campaigns would be unleashed in an effort to overturn the punitive public consensus on race. The rhetoric associated with specific reform efforts would stress the need to end mass incarceration, not merely tinker with it, and efforts would be made to build multiracial coalitions based on the understanding that the racial politics that gave birth to the War on Drugs have harmed poor and working-class whites as well as people of color. All of that could have happened, but it didn’t. Why not?

  Part of the answer is that civil rights organizations—like all institutions—are comprised of fallible human beings. The prevailing public consensus affects everyone, including civil rights advocates. Those of us in the civil rights community are not immune to the racial stereotypes that pervade media imagery and political rhetoric; nor do we operate outside of the political context. Like most people, we tend to resist believing that we might be part of the problem.

  One day, civil rights organizations may be embarrassed by how long it took them to move out of denial and do the hard work necessary to end mass incarceration. Rather than blaming civil rights groups, however, it is far more productive to understand the reasons why the response to mass incarceration has been so constrained. Again, it’s not that civil rights advocates don’t care; we do. And it’s not just that we are afflicted by unconscious racial bias and stereotypes about those behind bars. Civil rights organizations have reasons for their constraint—reasons that no longer make good sense, even if they once did.

  A bit of civil rights history may be helpful here. Civil rights advocacy has not always looked the way it does today. Throughout most of our nation’s history—from the days of the abolitionist movement through the Civil Rights Movement—racial justice advocacy has generally revolved around grassroots organizing and the strategic mobilization of public opinion. In recent years, however, a bit of mythology has sprung up regarding the centrality of litigation to racial justice struggles. The success of the brilliant legal crusade that led to Brown v. Board of Education has created a widespread perception that civil rights lawyers are the most important players in racial justice advocacy. This image was enhanced following the passage of the Civil Rights Acts of 1965, when civil rights lawyers became embroiled in highly visible and controversial efforts to end hiring discrimination, create affirmative action plans, and enforce school desegregation orders. As public attention shifted from the streets to the courtroom, the extraordinary grassroots movement that made civil rights legislation possible faded from public view. The lawyers took over.

  With all deliberate speed, civil rights organizations became “professionalized” and increasingly disconnected from the communities they claimed to represent. Legal scholar and former NAACP Legal Defense Fund lawyer Derrick Bell was among the first to critique this phenomenon, arguing in a 1976 Yale Law Journal article that civil rights lawyers were pursuing their own agendas in school desegregation cases even when they conflicted with their clients’ expressed desires.3 Two decades later, former NAACP Legal Defense Fund lawyer and current Harvard Law School professor Lani Guinier published a memoir in which she acknowledged that, “by the early 1990s, [civil rights] litigators like me had become like the Washington insiders we were so suspicious of.... We reflexively distanced ourselves from the very people on whose behalf we brought the cases in the first place.”4 This shift, she noted, had profound consequences for the future of racial justice advocacy; in fact, it was debilitating to the movement. Instead of a moral crusade, the movement became an almost purely legal crusade. Civil rights advocates pursued their own agendas as unelected representatives of communities defined by race and displayed considerable skill navigating courtrooms and halls of power across America. The law became what the lawyers and lobbyists said it was, with little or no input from the people whose fate hung in the balance. Guinier continued:In charge, we channeled a passion for change into legal negotiations and lawsuits. We defined the issues in terms of developing legal doctrine and establishing legal precedent; our clients became important, but secondary, players in a formal arena that required lawyers to translate lay claims into technical speech. We then disembodied plaintiffs’ claims in judicially manageable or judicially enforceable terms, unenforceable without more lawyers. Simultaneously, the movement’s center of gravity shifted to Washington, D.C. As lawyers and national pundits became more prominent than clients and citizens, we isolated ourselves from the people who were our anchor and on whose behalf we had labored. We not only left people behind; we also lost touch with the moral force at the heart of the movement itself.5

  Not surprisingly, as civil rights advocates converted a grassroots movement into a legal campaign, and as civil rights leaders became political insiders, many civil rights organizations became top-heavy with lawyers. This development enhanced their ability to wage legal battles but impeded their ability to acknowledge or respond to the emergence of a new caste system. Lawyers have a tendency to identify and concentrate on problems they know how to solve—i.e., problems that can be solved through litigation. The mass incarceration of people of color is not that kind of problem.

  Widespread preoccupation with litigation, however, is not the only—or even the main—reason civil rights groups have shied away from challenging the new caste system. Challenging mass incarceration requires something civil rights advocates have long been reluctant to do: advocacy on behalf of criminals. Even at the height of Jim Crow segregation—when black men were more likely to be lynched than to receive a fair trial in the South—NAACP lawyers were reluctant to advocate on behalf of blacks accused of crimes unless the lawyers were convinced of the men’s innocence.6 The major exception was anti-death penalty advocacy. Over the years, civil rights lawyers have made heroic efforts to save the lives of condemned criminals. But outside of the death penalty arena, civil rights advocates have long been reluctant to leap to the defense of accused criminals. Advocates have found they are most successful when they draw attention to certain types of black people (those who are easily understood by mainstream whites as “good” and “respectable”) and tell certain types of stories about them. Since the days when abolitionists struggle
d to eradicate slavery, racial justice advocates have gone to great lengths to identify black people who defy racial stereotypes, and they have exercised considerable message discipline, telling only those stories of racial injustice that will evoke sympathy among whites.

  A prime example is the Rosa Parks story. Rosa Parks was not the first person to refuse to give up her seat on a segregated bus in Montgomery, Alabama. Civil rights advocates considered and rejected two other black women as plaintiffs when planning a test case challenging segregation practices: Claudette Colvin and Mary Louise Smith. Both of them were arrested for refusing to give up their seats on Montgomery’s segregated buses, just months before Rosa Parks refused to budge. Colvin was fifteen years old when she defied segregation laws. Her case attracted national attention, but civil rights advocates declined to use her as a plaintiff because she got pregnant by an older man shortly after her arrest. Advocates worried that her “immoral” conduct would detract from or undermine their efforts to show that blacks were entitled to (and worthy of) equal treatment. Likewise, they decided not to use Mary Louise Smith as a plaintiff because her father was rumored to be an alcoholic. It was understood that, in any effort to challenge racial discrimination, the litigant—and even the litigant’s family—had to be above reproach and free from every negative trait that could be used as a justification for unequal treatment.