Introduction

Under slavery and under Jim Crow in the United States, African Americans were either explicitly blocked from voting, or had obstacles placed before them, such as “poll taxes” or “literacy tests.” The “New Jim Crow” does much the same thing by utilizing the criminal justice system. Believing that justice is being served, society ignores this “new Jim Crow.” Police justify the arrests of a large percentage of Black men, who become part of a system of mass incarceration. After their release, access to employment, housing, education, public benefits, jury service and voting are limited. This makes their situation no better than that of previous generations under slavery or Jim Crow.

Michelle Alexander admits that she did not believe in the idea of a new caste system. Inspired by the Civil Rights movement of the 1950s and 1960s, she used those newfound rights to attend law school and become a civil rights lawyer, where she worked to maintain gains made by affirmative action and eliminate vestiges of the Jim Crow system. After working with the ACLU for several years and witnessing the effects of the system on the lives of young Black men, she realized that their lives were not simply the result of poverty and limited education. Their lack of opportunities was the direct result of legislation and backed up by court decisions. This legislation was introduced as “The War on Drugs” when it was declared by Ronald Reagan’s administration in 1982. 

Initially, the laws created by the legislation were not all that consequential, as drug use was declining at the time. But by 1985, crack cocaine had spread to poor and predominantly Black neighborhoods. This was in part exacerbated by the Reagan administration’s support of guerilla armies in the Nicaraguan civil war. In 1998, the CIA admitted to encouraging the smuggling of crack cocaine by these guerilla armies into the US, and onto inner-city streets, because it helped to fund the guerilla war in Nicaragua. The Reagan administration, in turn, capitalized on this escalation of crack cocaine use to market the War on Drugs to the public. 

The War on Drugs has led to a direct increase in the incarceration of predominantly Black and brown young men in the United States. In less than 30 years, the US penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase. The US has the highest rate of incarceration, the majority of whom are Black men. Studies show that people of all colors use and sell illegal drugs at very similar rates. The difference is that whites are not arrested for these crimes at the same rates. Nor are their lives as severely impacted by a criminal record. 

This reveals the true nature of mass incarceration as a tool of social control (the New Jim Crow) and not a method of punishment. Sociology studies have shown that governments more often use punishment as a tool of social control, not as a response to crime data. Statistics show that other countries with similar crime rates have lower incarceration rates. It can therefore be argued that mass incarceration of Black youth is being used to control this group for their entire lives.

For comparison, in the 1970s, after Jim Crow laws had been abolished, but before mass incarceration, many criminologists thought that prisons would fade away, in part because prison, and the threat of prison, has not been shown to deter crime significantly. Anybody with economic and social opportunities were unlikely to commit crimes, regardless of penalty, while those who went to prison were far more likely to commit crimes again in the future. With such data, the United States should have invested in education, housing, and food security, to ensure equal opportunities for all citizens. Instead, the United States chose mass incarceration, specifically targeted at Black youth. 

Because it has been couched in criminal justice terms, civil rights advocates have largely missed the impact of mass incarceration, instead focusing on much more visible defenses of affirmative action. While worthy, these individual court cases do not help the plight of those affected by the New Jim Crow. One of the few instances, attempting to redress the imbalance of the War on Drugs, was launched in 1999 by the NAACP Legal Defense Fund in the town of Trulia, Texas.  The NAACP was able to prove that racist profiling and the false, uncorroborated testimony of a single informant, had resulted in the incarceration of almost 15 percent of the Black population in Trulia. But this did little to alleviate the suffering of Black and brown young men incarcerated elsewhere around the United States.

Another distraction from the core problem of mass incarceration is successful people of color. People can point to the success of Barack Obama or Oprah Winfrey and claim that the United States has achieved a “color blind” society, where one’s skin color is no longer a barrier to higher social or economic rank. This may be true for an elite, privileged few. But those few distract from the large majority of Black people who are caught in a cycle of poverty from which few escape. The genius of mass incarceration is that it does not overtly arrest people for being a different race. The system simply arrests criminals who turn out to be Black men. They are removed from society at a young age for relatively small offenses, and deprived of the tools they will need to create successful lives on the outside. Once released, they are branded “felons,” and subjected to legal discrimination when looking for jobs and housing. No amount of affirmative action will help them, as they cannot even enter any track where affirmative action would help them.

The stigmatization of being a “felon” also plays a part in marginalizing these Black men. American society, while promoted as a society of equality, is very class conscious. A sacred American myth is that “anybody can raise themselves up” if they work hard enough. But these Black men are stripped, by law, of any means to even try to “move up.” Their lack of success tends to reflect on the minority group as a whole, and contributes to the belief that “Blacks are lazy.” This in turn allows society as a whole to become indifferent to the plight of the Black men who find themselves trapped. As Martin Luther King, Jr. said more than 45 years ago: a racial caste system does not require racial hostility or overt bigotry to thrive. It needs only racial indifference.

Partial measures in civil rights policy and litigation cannot alone dismantle this system. It requires a mass cultural awareness and parallel movement, similar to the Civil Rights movement in the 1950s and 1960s, that acknowledges this system and the caste it has created, so that it can be wholly dismantled. The goal of The New Jim Crow is to provide the knowledge and data needed to prove that this caste is not just a symptom of poverty or poor choices, but rather evidence of a new racial caste system at work, so that it can be identified and removed.

1. The Rebirth of Caste

This chapter outlines the history of caste systems in the United States.  
Racial caste initially appeared in America as a method of controlling labor in the new English colonies. This system then grew to be the underpinning of the agriculture economy in the Southern colonies. The Southern planter elite used their economic power to preserve this racial caste system within the Constitution of the United States. This made it easier for different forms of control to rise later. Following the Civil War, previously enslaved African Americans were granted the most freedom they had ever enjoyed, but the existing structure of racism (that had helped to justify slavery) was not as easily outlawed. Conservative whites developed a new set of laws that came to be known as Jim Crow. These laws denied African Americans access to the same facilities and opportunities as Southern whites and made it very difficult for African Americans to succeed. It was racial control in a different form.

When looking at the history of two previous caste systems, slavery and Jim Crow, a pattern emerges. There is a period following the downfall of the systems, in which new freedoms are enjoyed by African Americans. A backlash follows, encouraged by Southern white conservatives, who still believe in white supremacy and the separation of the races. These conservative voices find that economic downturns are especially useful. In bad economic times, lower-class whites, along with African Americans, are usually severely affected. Lower-class Southern whites become more receptive to blaming job losses on African Americans. They help to elect conservative governments, which then have the power to construct a new racial caste system. This new system may be difficult to detect at first, as it may differ in its language, or application. The effects of these new laws have proven to be no less damaging than slavery to African Americans. 

At the end of the US Civil War, the South lay in economic ruin. The federal government had prevented the United States from breaking apart. It then tried to rebuild the Southern states. The new South would no longer rely on slave labor. This period of Reconstruction saw the passage of several amendments to the Constitution to ensure the freedoms of African Americans. First, they were finally freed from enslavement. They were then granted full citizenship, as well as equal protection of the laws, and the right to vote. However, the granting of these rights only proved to white conservatives the need for a new system of control. Local governments began employing poll taxes and literacy tests to limit the number of African Americans who could vote. If voters did not have money to pay the tax or could not read well enough to pass a test, they were not allowed to vote. Vagrancy laws were enacted making it a crime to be jobless. African Americans were targeted, arrested, and sentenced to work crews, effectively replacing slave labor with prison labor. 

Challenges to these laws were difficult to mount because they were in violation of federal laws and had to be tried in federal court. This was usually beyond the ability of any African American in the South at the time. This encouraged Southern states to pass many laws segregating the races in all kinds of situations. This racial caste system became known as Jim Crow. 

Eventually, as society became less tolerant of segregation, the Jim Crow laws were dismantled as well. The passage of The Civil Rights Act of 1964 and The Voting Rights Act of 1965, caused immediate changes in the daily lives of African Americans in the South. Suddenly, African Americans were free to eat in restaurants and ride in trains. The percentage of African American voters also rose tremendously in the South. Again, the underlying racism created by slavery proved harder to eradicate. Powerful white conservatives still believed that African Americans were inherently less capable, and in some cases, dangerous. Crime rates in many cities increased at this time. Conservatives at the national level began to campaign for “law and order.” They played on underlying racial fears and implied that African Americans were largely responsible for increased crime rates. This strategy helped convince many lower-class Southern whites who had previously voted Democratic, to vote Republican. This new coalition of voters sent the Republican Ronald Reagan into the White House in 1980. The Reagan administration immediately focused on fulfilling the campaign promise of “law and order.” In 1982, before there was even a drug problem, the Reagan administration declared a “War on Drugs.” They then set about making it a reality by reshaping the criminal justice system.

The “War on Drugs” coincided with a large economic downturn that disproportionately affected inner cities, where many African Americans lived and worked. Many factories were closing down and shifting blue-collar jobs overseas, where unions were non-existent and wages were a fraction of what they were in the United States. The new factory jobs that did appear were usually located in the suburbs, and most inner city-dwelling African Americans did not have access to automobiles. With few legitimate alternatives, selling drugs became a better option. Crack cocaine appeared in 1985, which led to a spike in violence as drug markets worked to stabilize, and further justified the “War on Drugs.” 

President George Bush continued to highlight the drug problem, because it served political agendas, not because it was a significant problem. Even Democrats needed to be “tough on crime” in order to get elected. President Bill Clinton played up his “tough on crime” credentials during the 1992 campaign, and once elected passed a $30 billion crime bill. During the Reagan administration, Congress laid the groundwork for mass incarceration by creating minimum sentences for possession of small amounts of drugs. The new crime bill went further, mandating life sentences for some three-time offenders, and authorized money for state prisons and local police forces.

Continuing to appeal to more conservative voters, Clinton promoted changes to the welfare system as cost-saving efforts. To save money, the new system imposed a five-year lifetime limit on welfare assistance and eliminated it entirely for anyone convicted for a felony drug offense. Federally assisted public housing projects were required to exclude anyone with a criminal history, effectively making many Black men homeless.

By the turn of the twenty-first century, more than 2 million people are in prison as a result of increased policing and mandated minimum sentencing. Those who make it out of prison contribute to an ever-increasing number of ex-offenders who are barred from employment, housing, access to education and denied the right to vote. The disproportionate number of Black and brown offenders who are caught by this system effectively makes it a new racial caste. This new system of mass incarceration is hiding within the criminal justice system. The New Jim Crow has arrived.

2. The Lockdown

This chapter outlines how the courts have reinterpreted the 4th Amendment to allow police wider, legal use of search and seizure.

The reality of the justice system in the United States is not at all close to the idealized version shown on TV. Most people are rarely ever required to appear in court. Defendants are guided through a process of shortcuts, created specifically to quickly process the large number of people through the courts. One of the main reasons for the increased numbers is the War on Drugs. A high percentage of people of color find themselves in prison for low level drug possession. A system has developed to reward mass drug arrests contributing to the conviction and imprisonment of large numbers of people of color.

The 4th Amendment is not well known by most Americans today, but was very important to the writers of the American Constitution. English colonists had no recourse when English soldiers came to their homes. As subjects of the English crown, they had to let the soldiers search and take whatever they liked. This continued harassment helped start the American Revolution and is the main reason for the 4th Amendment’s ban of search and seizure without due cause. 

In recent decades, the Supreme Court has helped wage The War on Drugs by siding with law enforcement. Rulings on several cases contesting unlawful search and seizure have rolled back 4th Amendment protections. Many critics now say that a “drug exception” exists for the 4th Amendment. These rulings have made it easier for police to conduct searches for drugs on the street, in cars, on buses, planes and trains. 

The 1968 Supreme Court case Terry v. Ohio became known as the stop-and-frisk rule. If an officer observes possible criminal activity and believes the person to be dangerous, the officer can legally stop and search them. Police can find themselves in dangerous situations with armed individuals. In practice, this ruling has enabled police to stop almost anyone, for any reason, and search them. They do not need to prove that the individual is dangerous, or that they are involved in criminal activity. They only need to ask for consent, which people generally give when confronted by police. The court acknowledged in Schneckloth v. Bustamonte (1973) that consent searches are only successful because people do not realize they can say no. This has resulted in more searches of people of color because they “look suspicious,” even though many of these searches yield few results. 

Consent searches also extend to moving vehicles. Police have developed strategies for stopping drivers using the excuse of a traffic violation. Once pulled over, the police take the opportunity to search the car. Since courts have ruled that police can keep valuable items seized during a drug related search, police are incentivized to pull people over for small infractions on the chance that they find something. The vast majority of people who are searched are innocent and are let go. It is those who are searched and found guilty of drug possession (regardless of the amount), who end up in a courtroom. This helps create the impression that consent searches carried out by police are justifiable under the law.

Further encouragement comes in the form of money. When the Reagan Administration first launched The War on Drugs, local police were not actually very interested. The drug problem was not that large. Police felt they should be focusing on solving murders and violent crimes. The Reagan administration then made it lucrative for police and sheriff’s departments across the country. Under the Byrne program, federal funds were offered to state and local police to build narcotics task forces. Under the Military Cooperation with Law Enforcement Act, passed in 1981, Congress encouraged the militarization of state and local police. SWAT teams are now used specifically to serve search warrants on suspected drug dealers, even when the situation does not call for it. 

The 1984 search and seizure laws that allow police to hold on to 80 percent of property involved in a drug bust also encourage police to search and hope they find something. It allows for those with assets to trade for their freedom. It also explains why prisons, today, are mostly filled with people who played minor parts in the drug world. Further funding under the Obama administration in 2009, as part of the Economic Recovery Act, helped to solidify these actions. The mechanics of The War on Drugs became standard practices.

The court systems have not received equal funding and have had to adapt to the increase in numbers of defendants. Most defendants barely receive legal representation and do not see the inside of a courtroom. Instead, they are encouraged to plead guilty, through a system of plea bargaining. The prosecutor offers the defendant a choice of pleading guilty to a lesser crime, with a shorter minimum sentence. This reduces the risk of going to court and being found guilty of a larger crime, with a harsher penalty. This may help the courts increase efficiency, but it has devastating effects on peoples’ lives. 

If a case does go to court, and the defendant is found guilty, judges are given very little room to weigh the specifics of a case. Mandatory minimum sentencing means that a judge cannot refer a defendant to treatment or impose a shorter prison term for a first offense. Chances of successful re-entry to society after a conviction are greatly reduced.

It is these changes to laws, rather than the rise in crime rates, that are the reason for the increase in the prison population. It also the process of labeling vulnerable people as felons that creates the cycle of poverty, once outside prison. Some convicted felons may not even serve actual time in prison. They are released on parole, but they are still subject to the limits of parole. The felon label already makes it difficult to find employment, housing and apply for benefits. Parolees are subjected to continued surveillance and monitoring by police. They are also at increased risk of arrest for parole violations, which can consist of missing a meeting with a parole officer or being unable to pay a fine. These small violations can place a former felon back in prison, instead of on a path toward recovery and a meaningful life.

Given the existing state of laws, this cycle is very difficult to break. The current system has been reoriented to target and prosecute people of color and convict them for low-level drug crimes. The felon label then marginalizes them to an even greater extent than a prison sentence. Until society decides to change these laws, these felons will continue to cycle in and out of the prison system. Society has stripped them of what few opportunities they had to contribute to the wider economy. They have been deemed worthy only of contributing to the system of mass incarceration.

3. The Color of Justice

This chapter outlines how “The War on Drugs” targets people of color in the United States.
Drug busts are now commonplace tactics used by police in the name of clearing neighborhoods of illegal drugs. The innocent people of color who get swept up in those drug busts do not receive the same level of outrage that might happen if they were white. Instead, they are usually encouraged to plea-bargain and admit their guilt, in order to avoid a longer sentence. They are made felons, subject to probation and fines, and as a result, often lose their jobs, housing and benefits. They also lose their right to vote. They become a voiceless underclass, just like slavery and Jim Crow before it, simply by virtue of their skin color. 

Crime rates in the United States have increased. Data also show that people of all races use and sell illegal drugs at similar rates, but whites are not arrested or indicted at the same rates for drug use. Society tolerates these disparities because a majority of whites still believe racist ideas about minorities and believe them responsible for increased crime rates. In fact, some data show that illegal drug use is higher among whites than Blacks, but it is most often African Americans, especially young Black men, who are in prison, or under some sort of oversight like probation.

Law enforcement deny racial bias by hiding behind race neutral laws. They blame the higher rate of violent crime in Black communities, but violent crime has gone down over the last few decades while overall incarceration rates have climbed. This does not even account for the people who are still under probationary control. Violent crime does exist in poor neighborhoods, but most arrests made in these areas are drug related. The rise in drug arrests clog the judicial system and make it more likely that defendants will plead to a lesser charge. They return to the neighborhoods jobless and homeless and may contribute to violent crime: but it is the high rate of drug arrests that fuel the initial cycle. 

The mass incarceration system allows society to create an underclass of people of color, without appearing overtly racist. It does this by granting police wide discretion to stop and search almost anyone. On the surface, this does not appear racist. In practice, it allows police officers inherent biases (even police officers of color) to stop more people of color than others. The laws that have been passed and upheld over the decades also keep people of color from contesting these biased arrests. These laws require proof and the new system has been designed to operate without leaving proof of the racial bias in the system. Official arrest records never say that someone was arrested because they were Black. They say that they were arrested because they exhibited behavior that was either dangerous or indicative of drug activity. The racial bias is only borne out by the numbers of Black and brown men who sit, underused in poor communities.

The problem with illegal drugs is that the victims and perpetrators are not as clear cut as with violent crime. Both sellers and buyers of drugs are happy parties to the exchange. None of these people usually call the police. The War on Drugs required police to figure out who to arrest. Relying on inherent racial biases that already existed in society at large, media and law enforcement created stereotypes of dangerous Black drug criminals. Crime became synonymous with Black and brown neighborhoods. More whites actually use drugs than people of color, but that is not the image that society has of the “drug user” or “drug dealer.” Police also were conditioned to believe that people of color were sources of the “drug problem.” This translates into more searches and more arrests of people of color.
 
Once arrested, people of color are also subjected to inherent bias in the prosecution and sentencing aspects of the judicial system. Prosecutors are granted a lot of discretion in how to charge defendants. Whether acknowledged or not, biases occur. Studies have been done in the last few decades showing that many more Black and brown defendants are prosecuted and sentenced for drug crimes. These same studies show that people of all races use illegal drugs, but whites tend not to be prosecuted in such large numbers. 

Lawyers for Black defendants have also used data to try to prove that white defendants are guided through state courts, where drug penalties are less severe. Black defendants are guided to the federal courts where penalties are more severe. The Supreme Court has ruled to preserve the discretion of the prosecutor. The only way to truly prove racial bias would be to know the internal workings of the prosecutor’s office. But the Supreme Court continues to protect the prosecutorial arm of the law. While the inner workings of prosecutors’ offices remain closed to defendants, lawyers have a difficult time building a case to show racial discrimination.

If a defendant does not plea bargain to a lesser charge, the case does go to court. The defendant should receive a jury of his or her peers. For people of color, the system filters many of their peers out of the jury pool at the front end. Juries are selected from the pool of registered voters or Department of Motor Vehicle rolls. People of color are less likely to register to vote or to own or drive cars. Convicted felons are restricted from voting, and therefore are also restricted from serving on juries. A disproportionate number of Black men are convicted felons. If a Black or brown juror should make it into a jury pool, data show that lawyers manipulate the jury pool to eliminate people who might be empathetic to Black or brown drug-crime defendants. Since they are not held to a high standard of reasoning, lawyers find excuses to eliminate jurors, thus masking any overt racial stereotyping.

Where Black and brown defendants face the most discrimination is in the daily policing of their neighborhoods. Police avoid overt use of racial terms when describing their techniques, but they do not spend their days patrolling white suburban neighborhoods. Funding for the the War on Drugs is contingent on quotas. Police departments are incentivized to find and arrest drug offenders. Data show that people of all races use illegal drugs at similar rates. Police receive much less political pushback if they focus their resources on Black and brown neighborhoods. Neighborhoods with convicted felons who have lost the right to vote have less political clout. The police will meet their quota of arrests and continue to receive federal funding. 

Much of this racial profiling and discrimination should be challengeable under the 14th Amendment, but the Supreme Court has set precedent in rulings over the last decades giving discretion to police and prosecutors. This has ensured that inherent racial bias continues to operate within the judicial system and is very difficult to challenge. 

4. The Cruel Hand

This chapter outlines how the system of mass incarceration continues to adversely affect African Americans after they are released from prison.

Despite slavery and Jim Crow laws no longer existing, African Americans and people of color who have been labeled “felons” may feel that these systems are still commonplace. Discrimination against felons is legal and widespread. Felons are banned from jobs, housing, social services, welfare benefits, and most significantly, voting. Although not overtly racist, in practice, it has a racial element, because of the numbers of Black and brown men who are swept into the judicial system on minor drug offenses. The system processes them and sends them back labeled as felons. Before prison, they might have been able to argue against employment or housing discrimination. After prison, the law can openly discriminate based on “status” rather than “race.” It is Jim Crow disguised by legalese.

Even those defendants who plea bargain their way out of a prison term find themselves labeled criminals. Many of these people were caught in the dragnet of the War on Drugs and arrested for possession of small amounts of drugs. Now, the system has ensnared them for what may be the rest of their lives. Life on the inside may look easier in comparison given the many legal roadblocks placed in front of felons trying to rebuild their lives. Unable to find housing, find employment, or keep a job when barred from driving, many ex-offenders find themselves back in prison. 

One of the main roadblocks to reintegrating into society for ex-offenders is housing. If they do not have family to return to, it can be difficult to find housing that will accept them. Section 8 housing which subsidizes rent for low-income people will not cover ex-offenders. Over the years, anti-drug legislation authorized public housing agencies to ban drug offenders, and anyone believed to be using illegal drugs. A lack of housing can cause a domino effect of outcomes. Entire families, dependent on a parent for housing, could be part of an eviction, and end up homeless. Once homeless, employment can be lost, thus continuing the downward spiral. Instead of helping ex-offenders reintegrate into society and become contributors to society, the system again relegates them to the sidelines. 

Jobs in impoverished neighborhoods in the US are already difficult to find for young African Americans and people of color. High rates of unemployment are the main reason so many turn to selling illegal drugs in the first place. Instead of addressing the real problems of unemployment, society allows these young men to be arrested. When they return, labeled “felons,” it becomes even harder to find employment. Many states require parolees to maintain employment but do little to help them find any. 

Work is considered an important part of one’s self-image. Studies have shown that men deprived of the means to support oneself are prone to depression and violence. Society did not prepare many of these men well for life to begin with. Most are high school dropouts. Some are illiterate. Desperate, many of them return to selling drugs, the very thing that landed them in prison in the first place. 

Efforts to help Black ex-offenders find jobs have focused on eliminating the question of felon status on job applications. Measures have been passed in a few cities outlawing the question. However, this “banning the box” does not rule out discrimination based on other factors like race, low education level, or gaps in work history that might also be used to exclude ex-offenders. Inherent racism born of associating Black men with crime arguably makes it difficult for all African Americans to successfully find work. Many employers may look at all Black men as potential ex-offenders, even if a “felon” box is not on an application.

Lack of employment also affects the ability of ex-offenders to pay fees associated with mass incarceration. The War on Drugs already targets poor neighborhoods. When ex-offenders leave prison, they are most likely not returning to a high-paying job. As the system provides few rehabilitative options, the likelihood of returning to selling drugs only increases. If they are not arrested for selling drugs, they may return to prison because of unpaid fees. In some situations, the ex-offender could then work within the prison to work off the debts. This mirrors the post-Civil War era system of convict leasing, or indentured servitude.

Ex-offenders also cannot depend on help from the government. Welfare was heavily reduced during the Clinton administration in 1996. The revision under the new legislation Temporary Assistance for Needy Family Program (TANF) limited a person to only five years of benefits. Felons convicted of drug crimes are denied any federal public assistance. 

Continuing the process of marginalization from society, drug-crime felons are not allowed to vote in prison. This status extends to when they leave prison. Ex-offenders have no way to make politicians responsive to their situations. Even those eligible to have their voting rights reinstated find it difficult to do so. In some cases, ex-offenders are required to pay fines before they can again be allowed to vote. If unemployed, it can be difficult to pay the fine. In this way, it is similar to a poll tax or a literacy test, as employed by states during Jim Crow. Given their treatment by the government, many ex-offenders also remain concerned that the government would target them if they registered to vote. 

In addition, there is also the social stigma of being an ex-offender. There is no need for racial slurs any longer. Society just calls someone a “felon” and his or her life is forever a struggle. Some people worry that for people in the poor neighborhoods, ravaged by War on Drugs, prison time has become a badge of honor. Studies show that these communities also feel shame. It is almost worse today than when people were openly discriminated against under Jim Crow. At least under Jim Crow, when Black men experienced racism in the outside world, they could return to their communities for support. Nowadays, an ex-offender returns from prison and not only experiences legal discrimination in all facets of life, but experiences shame on the part of his community and family.

The system of mass incarceration is built on the racist idea that Black men are inherently criminal. This idea lands them in prison and governs their lives outside prison. With low expectations for young Black men in their communities, they often fail to perform well. Instead of stigmatizing these young men, and assuming they will turn to gangs and violence, Americans should work to help them re-enter society and create meaningful lives. Truly breaking the cycle would involve acknowledging that people in these impoverished communities are humans deserving of greater investment. American society would have no need for a War on Drugs if it chose to tackle the root reason behind it, which is racism. 

5. The New Jim Crow

This chapter looks at how structural racism enables the New Jim Crow to exist in plain sight in American society.

Prominent Americans including Barack Obama, Bill Cosby, and Tyra Banks have wondered where the Black fathers and Black men in America have gone. Absent Black fathers are blamed for the poverty and violence in predominantly Black neighborhoods. What they do not talk about is that they know exactly where Black men are: in prison. They have been put there by the War on Drugs. When the War on Drugs was first launched, it had to be promoted and sold to society as a problem. Now that it is part of the judicial system, people of all colors barely notice it exists. Until the mass incarceration system is acknowledged as a system of racial marginalization, and not simply the judicial system being “tough on crime,” young Black men will continue to disappear.

Many Americans do know that an unequal number of Black and brown men are behind bars in the United States but have little idea how to change it. Denial can help people function when knowing that wrongs are being committed. In some cases, racism also plays a part, as people rely on old stereotypes to say that these “criminals” probably deserved their fate. Denial of mass incarceration is also much easier. Jim Crow blatantly separated the races with signs and open racism. In the days of mass incarceration, racism manifests through unequal access to decent housing and education. If there is little interaction among races, there are fewer opportunities to discover the truth of mass incarceration. 

The widespread belief that the judicial system is colorblind also keeps people from inquiring too much about why so many Black young men have been enveloped by this system. People are arrested for drug crimes. Therefore, they must be criminals. That they are predominantly Black men is irrelevant. People fail to see that racism can be embedded in the basic structures of society. The theorist, Iris Marion Young, describes structural racism like a birdcage. The wires represent the laws and practices such as racial profiling, biased sentencing, and job discrimination that form a trap around Black men in America. Some people would argue that there is a door to the birdcage, and that it can be opened by choosing to not commit a drug crime. This argument avoids understanding that the door is locked due to few alternate opportunities. Black and brown men born in impoverished urban ghettos, who may not have consistent housing, or food, and who attend sparsely funded schools, find out quickly that the best option for them is selling drugs. 

Nobody is telling them anything different. Instead of communities with well-funded schools providing opportunities for people of color, these communities simply function as way stations for people returning from prison. Young Black men in these communities find themselves harassed by police who assume that they will soon be arrested for drug possession. Young Black men are told they will be drug felons, and to a large extent they fulfill this prophecy. Although crime (and specifically drug offenses) may be committed at the same rate by white people, they are not arrested at the same rates. They do not have to deal with the racial stigma of being assumed a criminal before conviction or after conviction. Once released from prison, they usually have more support from family and within their communities to help them reintegrate. Young whites who may have made “bad decisions” and been caught, in general still have a chance to attend college and have meaningful lives. A drug conviction for a Black student is often the end of a productive life.

Race as a deciding factor in the judicial system becomes clearer when comparing sentencing for different crimes. A grassroots crack down on drunk driving rose in the 1980s at the same time as the War on Drugs was launched. Drunk driving actually caused more overall deaths than all drug-related deaths at this time, but because most drunk drivers were white and male, the penalties were not as severe. Even today, drunk drivers are usually charged with misdemeanors and receive sentences involving fines and community service. The emphasis is on rehabilitation and reintegration into society, and helping offenders overcome the addiction. This contrasts starkly with how drug offenders are treated. They are usually poor people of color, who are charged with felonies and sentenced to prison. The effect is to marginalize them from society, rather than reintegrate them.

This new system of mass incarceration has been allowed to develop because society has a racial indifference to African Americans. When the Civil Rights Movement of the 1960s successfully upended the Jim Crow laws, there was an opportunity to provide community investment, quality education and job training to help African Americans succeed. These constructive interventions could have helped workers of all colors survive the trough transition to a new global economy when the economic downturn of the 1970s arrived. Instead, conservatives manipulated the fear generated by a rise in crime and the anger generated by job losses and created a backlash against the Civil Rights Movement. Media campaigns acted on inherent racism, blaming the rise in crime rates on African Americans. The next step was to declare a “War on Drugs,” targeting urban centers where many, now jobless, African Americans lived. The resulting mass incarceration system continues to strip Black men of their livelihoods and rights. The effects of this new system are perhaps even worse than Jim Crow or slavery, as it renders African Americans unnecessary. Their unskilled labor is no longer valued and society has deemed them unworthy of retraining.

Anybody who can leave these ghettos of mass unemployment, poor housing and lack of opportunities, do so. Those who are left are increasingly segregated and marginalized from society. They are extensions of the mass incarceration system which has developed to monitor, arrest and sentence thousands of Black men to prison. The criminal justice system no longer exists to prevent crime, but to initiate the offenders into a lifetime of government control and economic marginalization.

6. The Fire This Time

This chapter discusses how the status quo hinders the elimination of mass incarceration and how the system can be dismantled without laying the ground for a replacement.
Most Americans today believe that the diversity made possible through affirmative action is helping to reduce the amount of impact mass incarceration has on Black and brown families. Civil rights organizations campaign heavily to increase diversity in the workplace, in politics, and in the arts. Today, there are many more Black and brown faces to be found on police forces, fire departments, in schools, on television, in sports, and in entertainment. These small steps toward diversity lead people to believe that racism can be defeated. While it does help bring people of various backgrounds and ethnicities together, and help break down barriers due to ignorance, it still does not address the real issue. The massive level of inequality that exists in urban areas where Black and brown people live is still producing generations of people lost to poverty, drugs and violence. 

For every Black student that is lucky enough to receive a scholarship to attend college, there are hundreds of Black children trying to survive in urban ghettos. Their choices are limited, and many find themselves caught in the mass incarceration cycle. Instead of investing in urban areas affected by economic decline, the government has chosen to round people up. Inherent racism has assumed that these people will fail. American society has allowed a system to develop that does not help people overcome poverty but ensures that they are never able to break free. 

While affirmative action continues to exist and is supported by people of color, it will be hard to dismantle the system of mass incarceration. People are blinded to the massive numbers of people of color in prison, by the bright lights of successful people of color in mainstream culture. Civil rights advocacy has also been distracted by the success of the lawsuits during the Jim Crow era. This success encouraged a belief that litigation can help break down racist structures, but the courts have made it difficult to bring suit against mass incarceration. Civil rights groups can continue to sue for more diversity in school districts, for acceptance to elite colleges, or to contest racial profiling of innocent Black and brown doctors, but these cases do not attack the racist roots of the system of mass incarceration, which continues unchecked.

To truly dismantle the mass incarceration system, the War on Drugs must be stopped. Financial incentives for police departments to wage the War on Drugs must end. Data show that American taxpayers are not receiving a good return on investment. Mass incarceration costs upward of $2 billion dollars per year but probably reduces crime by 25 percent. This money could be better invested in human capital. Investment should be made in re-entry programs for former inmates and retraining programs for former prison workers. Laws discriminating against ex-offenders, which make it difficult to build functional lives outside prison, should be eliminated. Data show that the poverty that encourages many to return to selling drugs, would be greatly reduced if ex-offenders had an easier time of finding employment. 

The inherent racism that has allowed the War on Drugs to supply the mass incarceration system must also be addressed. A history of racism that has not been fully addressed, compounded by public campaigns, has encouraged people to associate drug crime with people of color. Laws can be passed, but if society is not ready to accept them, they may not be enforced. It took the Civil War to enforce an end to slavery, and it took the Civil Rights Movement to ensure that the laws ending Jim Crow were followed. To be truly successful, this campaign should incorporate lower class whites as well. This will ensure that conservative racists are not able to scare lower class whites to abandon shared goals with people of color. A truly broad-based investment in schools and job retraining programs will also help lower class whites. 

In the wake of the Civil Rights era, American society has focused on trying to treat people of all races equally. This has led to an idea of colorblindness. The worst manifestation of this is the mass incarceration system. By simply labeling them drug criminals, police have been able to arrest high numbers of Black and brown people. To overcome this, America should embrace the differences, and acknowledge that Black and brown people, as well as poor whites, have been placed at a disadvantage. Americans should come together as humans, not as races, and work together. 

Affirmative action programs also actually hinder progress. The success of a few African Americans make it look like the African Americans caught in the cycle of mass incarceration deserve to be there. People can point to African American success stories and say that people have a choice to not commit crime. Affirmative action as a “trickle down” theory also largely fails as well. Not only does it only benefit a small amount of people, but it also tends to alienate whites, who feel that certain positions or successes have been robbed from them because someone has artificially been placed in front of them. It would be better to simply invest in education, job training, and drug rehabilitation programs universally, that would benefit people of all races and backgrounds, than continue to try to help a few people rise above. In many ways, African Americans, as a group, are not doing any better than when Dr. Martin Luther King, Jr. was advocating for change. The child poverty and unemployment rates in Black communities are actually higher than in 1968. 

Those who benefit from affirmative action do not necessarily want to wholly change the system. They become part of the system. Police departments across the nation have become more diverse, but they continue to wage war on the Black urban poor. This diversity can make it harder to challenge these institutions and call out racist behavior. These cosmetic changes make it even more difficult to upend the status quo.

To defeat mass incarceration, all Americans must work together to overcome the inequality inherent in American society. White elites must accept that sacrifices in earnings may have to be made to the common good. The benefits will be seen in a reduction of crime and homelessness which plague urban areas. African Americans must accept changes to (or elimination of) affirmative action. If everyone is allowed more equal footing to begin with, affirmative action will be rendered obsolete. The African Americans who will benefit the most are those who have been forgotten in the system of mass incarceration. For them, it is not just a moral question, it is a matter of life and death.

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