The Old Jim Crow

Michelle Alexander’s The New Jim Crow dedicates chapter five to an analytical comparison of mass incarceration and the era of Jim Crow. She draws the similarities and distinctions between both of the “racial caste systems” by beginning the chapter with a breakdown of how African Americans are being trapped in what her predecessors have deemed a literal cage. Simply put, the explanation for this comes down to an easy and well-emphasized answer: the War on Drugs. Yet, how the War on Drugs is driven is explained through the systematic mustering of blacks into the criminal justice system, failing to provide useful representation, and then their marginalization. The methods through which mass incarceration is executed leads to Alexander’s parallels of the system during Jim Crow. Their similarities are summarized as “an elaborate system of control, complete with political disenfranchisement and legalized discrimination in every major realm of economic and social life. And there is the production of racial meaning and racial boundaries” (185).

Alexander deems historical parallels, legalized discrimination, political disenfranchisement, exclusion from juries, closing the courthouse doors, racial segregation, and the symbolic production of race as the most important and obvious similarities. Within these explanations, she makes very serious claims about how much has not changed since the previous systems of racial control. Among these claims, I would say that one of the boldest is the claim that “mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black” (192). Alexander draws a pretty strong comparison between Jim Crow and mass incarceration in their ability to delineate race. This similarity is vital to the explanation of Jim Crow and mass incarceration as a system of control because this establishes the opprobrium of being black, or a criminal (if there is a difference). And as Michelle Alexander explains, “the criminal label is essential” (195). Otherwise, overt racism would most likely be faulted, making it slightly more difficult to have the same control over mass incarceration of blacks.

Although Alexander draws numerous, strong parallels between Jim Crow and mass incarceration, she also outlines the restrictions on these comparisons. Overlooking the differences between both systems would simply be unfair. I would say Jim Crow and mass incarceration have been executed distinctly and also serve to satisfy the needs of a very different “other.” Alexander’s list of differences include the absence of racial hostility, white victims of racial caste, and black support for “get tough” policies. These differences explain how racism has changed from overt bigotry to racial indifference. They show how white people are “collateral damage” in a system of mass incarceration whereas during Jim Crow, whites lacked any forthright harm. They also illustrate the differences between black support then and now. Outlining that, in conclusion “today complicity with the system of mass incarceration may seem like the best options for African Americans, though in reality it is no option at all.” (205) I would say these differences and similarities are strong indicators of the severity of changes over time, which I would call mildly insignificant. While the differences are clear, in my opinion they just don’t come close to outweighing the similarities between Jim Crow and mass incarceration. The disturbing parallels between a system America has tossed into its shameful past and a system masked as beneficial and protective are a clear indication of how much work has yet to be done.

In the fourth chapter of her book, The New Jim Crow, Michelle Alexander argues that in the present day freed criminals have barely more rights than freed black slaves or black persons living during the Jim Crow era. She opens the chapter with a depiction of freed slaves struggling to adjust to a society that stigmatized them as inhuman. Even though the institution of slavery was defeated by the emancipation, it immediately mutated into a new more intricate form, legal discrimination. Southern plantation owners had the power to capture freed blacks on the street and force them back into slavery, as every black person was still presumed a slave. Alexander likens this treatment to the modern day criminal who re-enters society as a vulnerable second-class citizen.

She asserts that a defendant generally does not understand the repercussions of being convicted and labeled as a criminal. A minor drug offense may permanently lose you the right to vote and eligibility for federal aid. Alexander quotes Jeremy Travis as saying, “In this brave new world, punishment for the original offense is no longer enough; one’s debt to society is never paid.”(139) Once a criminal makes it through the penal system they are only met with discriminatory rules and regulations that are designed to create a feeling of isolation and inferiority. She poses the question that if you treat criminals as outcasts, how do you expect them to act? (141)

Alexander then takes us through the plight of the freed criminal from the time of release to, what is likely for most convicted criminal, re-incarceration. Finding a job post-incarceration is one of the most difficult tasks for an ex-offender. As if the stigma society attaches isn’t harmful enough, employers have the legal right to deny consideration for a job opening. Without easy access to employment most ex-offenders have to rely on public shelters and family for housing and money.

In addition, most freed criminals are released with large amounts of debt, which can be debilitating. Typically, ex-offenders are forced to pay fees to a variety of agencies including probation departments, courts, and child support enforcement offices and in some cases for drug testing and drug treatment. However, most offenders cannot afford to pay these fees, especially as they try to enter society and find a job. If they are fortunate enough to find a job, by law, governmental agencies can garnish up to 100% of an ex-offender’s paycheck, leaving them with absolutely nothing to take home. To find oneself in this predicament, it would not be surprising to surpass a real job for illegal activity that may be more profitable. Thus, the cycle is perpetuated.

What seems evident is that the criminal justice system in America was not made for rehabilitation and successful re-entry into society. For many instances, without the right to vote and access to governmental aid such as public housing and food stamps, ex-offenders are almost left with no choice but to survive by any means necessary. Putting people in this situation creates the tendency for ex-offenders to become repeat offenders. Criminals in this day in age are bound by the policies and regulations that limit them from living freely in society. Once they enter this institution, they wear the badge of slavery just as ex-slaves did post-emancipation.

The Color of Justice

In Chapter three of her book The New Jim Crow Michelle Alexander continues to build her argument that the levels of mass incarceration we are currently experiencing in the United States is a result of a discriminatory justice system that is in many ways re-instituting the Jim Crow era of the past. Alexander opens this chapter by analyzing the “War on Drugs”—an ambitious federal policy introduced by President Ronald Reagan in 1982 to curb the growing rate of drug use across the United States. Alexander suggests that “in the drug war, the enemy is racially defined” (96), that is to say the enemy in this war is not a thing—the drugs—but instead has become a group of people (primarily African Americans and to a lesser-extent Hispanics). Using a variety of different figures and statistics Alexander paints a picture of crime in America over the last three decades and more specifically, highlights drug crimes and drug users. By concretely ruling out violent crime and street crime, Alexander asserts that drug offenses “are the single most important cause of the prison boom in the United States, and people of color are convicted of drug offenses at rates out of all proportion to their drug crimes” (99).

Puzzled by how a “War on Drugs” could operate in a discriminatory manner on a large scale without anyone ever advocating against such discrimination, Alexander decides that the central question that needs to be addressed is “how exactly does a formally color blind criminal justice system achieve such racially discriminatory results?” (100). The explanation that is developed in this chapter is two-fold. One, law enforcement officers were granted large amounts of discretion regarding the pursuit of drug offenders—which Alexander claims has provided the opportunity for conscious and unconscious racial beliefs and stereotypes. And two, the justice system denies and blocks all possible inquiries into racial discrimination.

This role of police discretion grew partly out of necessity, a drug deal is a consensual activity where both parties are participating in illegal behavior and have incentive not to get caught. A far more intrusive and provocative type of policing became necessary to address these crimes than would be used for ordinary violence or street crimes. Compounding the issue of police discretion was a ‘guilty until proven innocent’ stigma born from social and political pressures. Alexander cites the media campaign launched by Reagan to coincide with his war on drugs as a promotion of racial biases in reaction to crime. Such advertisements acted as a form of propaganda publicizing horror stories involving predominantly black crack cocaine use. According to Alexander “the media bonanza inspired by the administration’s campaign solidified in the public imagination the image of the black drug criminal” (102).

In order to address the idea that the justice system blocks all claims of racial discrimination Alexander looks to a few specific court cases. In Whren v. United States the Supreme Court ruled that using a minor traffic violation as an excuse to conduct a drug investigation does not violate the Fourth Amendment ban on ‘unreasonable searches and seizures’. She explains how the Supreme Court ruling in McCleskey v. Kemp meant “that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the Fourteenth Amendment in the absence of clear evidence of conscious, discriminatory intent” (106). It seems very unlikely—in fact nearly impossible—that this type of evidence could ever be obtained. Finally, in United States v. Armstrong the Supreme Court “closed the courthouse door to claims of racial bias” (112) by shielding the prosecution’s decision making power from judicial scrutiny for racial bias.

The arguments that Alexander makes in this chapter are very clear, well supported, and easy to follow. There are a few specific details from the evidence provided in this chapter that I believe to be disturbing. Most significant is the fact that McCleskey v. Kemp—the denial of any racial bias in sentencing—has not met a single successful challenge since it was upheld even though it is entirely plausible that bias occurs is startling. Is it possible that we have drawn the lines of the law too deep in the sand so that they cannot be up for discussion and interpretation? Alexander comes to a chilling summation: “It is difficult to imagine a system better designed to ensure racial biases and stereotypes are given free rein—while at the same time appearing on the surface to be colorblind—than the one devised by the US Supreme Court” (116). I find myself needing to understand this better. Is it possible that these air-tight Supreme Court decisions exist in other facets of the American justice system?

In her book, The New Jim Crow, Michelle Alexander argues that the American penal system targets and disenfranchises young black men, effectively replicating many of the discriminatory policies of the “old” Jim Crow Era. In her introduction, she outlines the mechanisms that have created this new caste system and placed young black men at the fringes of our society. She focuses on the concept of “mass incarceration,” in which over 2 million Americans are currently imprisoned and one in three young black men is currently in prison, in jail, or on parole (9). Alexander also cautions us not to downplay the oppressiveness as the penal system by saying that it is simply another institution whose racism is a shrinking holdover of a past era. Rather, she argues that the penal system has become a tool of repression whose influence is pervasive throughout our society. Alexander explains that we must engage in a open conversation about “the role of the criminal justice system in creating and perpetuating racial hierarchy in the United States” (16). She asserts that the elimination of mass incarceration is not enough; if we do not confront the role of race in our society, as well as in our penal system, we simply invite another mechanism of repression.