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

Alexander discusses the specific ways that race factors into the architecture of the criminal justice system. She cites a series of statistics that reveal the stunning racial disparities of mass incarceration. In seven states, African Americans comprise 80% to 90% of individuals who serve time in prison on drug charges. Across 15 states, the rate at which Black Americans are sent to prison is anywhere between 20 and 57 times that of whites. Granted, whites are also sent to prison at higher rates since the drug war began; their incarceration rate was eight times higher in 2000 than in 1983. Yet in that same period, Latinx incarceration rates rose by a factor of 22, and rates among African Americans rose by a factor of 26. In 2006, one in 14 Black men were in prison, while only one in 106 white men were.

How can a system devoid of explicit racial discrimination result in such racially imbalanced outcomes? To Alexander, the only explanation that doesn’t account for underlying biases in the system would be that Black men are simply more criminal. Yet this conclusion is as verifiably false as it is racist. Particularly when it comes to the use and sale of drugs, the criminal behavior of white and Black Americans is remarkably similar. In fact, to the extent that differences exist at all, the National Institute of Drug Abuse found that in 2000, the rate at which white students used powder cocaine, crack cocaine, and heroin was seven to eight times higher than for Black students. What’s most missing from media depictions of the drug trade is the fact that predominantly Black urban neighborhoods are neither the only nor the most likely place where people sell drugs. The truth is that Black people sell to Black people, and white people sell to white people.

Alexander addresses another myth purporting to explain the racial disparities in arrests and convictions: that while white Americans and Black Americans may use drugs at similar rates, Black men are more likely to be violent. Proponents of this myth tend to justify it by observing that around half the individuals in state prisons at any given moment are considered violent offenders. Yet Alexander debunks this myth by pointing out that violent offenders tend to have longer sentences than those with nonviolent drug convictions. As a thought experiment, she imagines a prison hallway with 20 violent offenders on the left side and 20 nonviolent on the right. Over a 10-year period, the left side might be filled with the same 20 prisoners, all serving long sentences. On the right side, however, hundreds of prisoners will cycle in and out on shorter sentences. Moreover, the victims of mass incarceration include not only the 2.3 million individuals behind bars as of 2010, but also the additional 5 million people on parole or probation, and the millions more who are otherwise subject to correctional control every time they’re forced to admit on a job or housing application that they have a felony conviction.

Alexander finds this myth particularly troubling, given that proponents of mass incarceration commonly use it to argue that the system serves to keep violent individuals off the streets. Yet by creating a permanent undercaste, overwhelmingly made up of people of color whose job and housing prospects are extremely limited, the author argues that mass incarceration creates more violence, not less.

Having established that these racial disparities exist, Alexander explores exactly how they are generated by the criminal justice system, especially the War on Drugs. She sorts this process into two steps: The first works by granting police officers an enormous amount of discretion concerning whom to target and where. The second occurs in federal courts, where judges all the way up to the Supreme Court enshrine unfair and often blatantly unconstitutional practices on the part of law enforcement and prosecutors—or, in Alexander’s words, they “close the courthouse doors to all claims by defendants and private litigants that the criminal justice system operates in racially discriminatory fashion” (130).

The extraordinary discretion afforded to drug enforcement officers is in many ways a consequence of how the drug trade works. Unlike other crimes like assault or theft, there is no claimant or victim to come forward to the police. In a drug transaction, both parties have broken the law and therefore have no incentive to report the crime. For that reason, drug-enforcement officers are forced to be proactive in hunting down buyers, sellers, and users of drugs. And considering the success of the Reagan-era media campaign to demonize drug users as young, male, urban youth, it’s little wonder cops chose to target these very individuals as opposed to other demographic groups.

Alexander next cites the work of various cognitive and social psychologists, all of which suggests that “racial bias in the drug war was inevitable, once a public consensus was constructed by political and media elites that drug crime is black and brown” (135). Yet that doesn’t mean the creation of a massive racial undercaste through mass incarceration was also inevitable. At countless turns, the courts had opportunities to minimize that bias through legal rulings—and yet at almost every opportunity, they did the opposite. Alexander explores several court rulings, the most grievous of which she considers to be 1987’s McCleskey v. Kemp. In that case, Warren McCleskey challenged his death sentence on the basis that Black defendants convicted of killing whites in Georgia were sentenced to death at a rate 11 times higher than defendants of any race who killed Black victims. The Supreme Court ruled that plaintiffs cannot challenge racial bias in sentencing under the 14th Amendment’s Equal Protection Clause absent evidence of explicit racially motivated intent by the judge or prosecutor in question and in the specific case challenged. In short, Alexander writes, “The Court’s answer was that racial bias would be tolerated—virtually to any degree—so long as no one admitted it” (137).

As troubling as racial bias from police officers and judges is to Alexander, what disturbs her most is bias on the part of prosecutors, who she believes have more power than any other figure in the criminal justice system. Whether handing out plea deals, funneling white defendants through more lenient state courts, or determining whether to charge a suspect at all, prosecutors enjoy enormous discretion that makes them uniquely susceptible to racial bias. The evidence of racialized outcomes in drug crime prosecutions is clear, according to Alexander. For example, on a list of 2,000 individuals who faced crack charges in federal court over a three-year period submitted in the 1996 Supreme Court case United States v. Armstrong, all were Black except for 11 people, and none of them were white. Alexander also observes strong racial bias in how prosecutors routinely strike people of color from juries. Again, Supreme Court decisions like 1995’s Purkett v. Elem afford prosecutors extraordinary leeway in dismissing Black jurors for presumably race-neutral reasons that need not be plausible or persuasive.

Finally, Alexander returns to the issue of police discretion to question why the War on Drugs is waged in majority-Black urban neighborhoods as opposed to college campuses or suburbs. For one, it is both politically and logistically easy to sweep young Black males into prisons on drug charges by targeting these hypersegregated neighborhoods, which are the result of decades of racialized federal housing policies and the disappearance of factories from urban areas. Law enforcement officials add that because poor people have less personal space, they are more likely to buy and sell drugs in the open, making the police’s job even easier.

Yet Alexander cites a 2002 study from Washington state that found plenty of outdoor drug transactions in white neighborhoods. Moreover, the Seattle police department’s emphasis on crack as opposed to heroin—which caused far more hospitalizations—resulted in significant racial disparities in drug arrests. Perhaps most troubling to Alexander is the fact that the courts have effectively given police officers full license to racially profile, as long as race isn’t the only factor cops use when choosing whom to target. She writes, “The problem, of course, is that whether or not race is the sole reason for a stop or search, it is frequently a determinative reason” (165).