The New Jim Crow

The New Jim Crow
Image by Joe Brusky via Flickr Creative Commons

Michelle Alexander’s The New Jim Crow is a brilliant history and assemblage of legal decisions, statutes, rules and practices that have incrementally grown since the 1970s to form a system of mass incarceration and a web of disabilities that falls on those who are released. This system has evolved much like the laws and restrictions that grew in the South after the retreat of federal troops at the end of Reconstruction in 1876, bit by bit, nail by nail, until it became the system we know as Jim Crow.

[This article originally appeared on the CounterPunch The CounterPunch Web site is offered at no charge to the general public over the World Wide Web and is edited by Alexander Cockburn and Jeffrey St. Clair.]

Thirty years ago, fewer than 350,000 people were held in prisons and jails in the United States. The end of incarceration was a legitimate position held by mainstream politicians and academics. Today, the number of prisoners in the United States exceeds 2,000,000. Millions more have been released from prison and found themselves trapped for life in an underclass defined largely by race.

The public consensus that supports mass incarceration is ostensibly colorblind. It purports to see black and brown men not as black and brown, but simply as men—raceless men—who failed to play by the rules that the rest of us naturally follow. “The fact that so many black and brown men are rounded up for drug crimes that go largely ignored when committed by whites is unseen. Our collective colorblindness prevents us from seeing thatbasic fact.”

Alexander disarms her readers by assuming they will be skeptical about her claim that there is in place right now a comprehensive system of racial discrimination that is like Jim Crow, as she herself once was skeptical. She knows all the visceral responses as well as the counterarguments, and calmly demolishes each one of them.

Racism is now a formally approved part of the criminal justice system, so long as it is not admitted or flaunted. Alexander traces the steady decline of the Fourth Amendment as a check to police behavior and shows how the case of McCleskey v. Kemp, which was decided by a narrow majority of the U.S. Supreme Court in 1987, accepted racism as an inevitable, if unfortunate, by-product of the discretion that a jury must have in a death penalty case to vote for life. In McCleskey, the defendant showed that all else being equal, black defendants in Georgia were more likely to be sentenced to death than whites, while those charged with killing whites were far more likely to be sentenced to death than those charged with killing blacks. The high court said that even if this were true, the repercussions of striking down the death penalty on this basis might never end. As dissenting Justice William Brennan wrote, the court was afraid of “too much justice.”

An African-American youth at a drinking fountain in a courthouse lawn in Halifax, North Carolina, in 1938. This was the face of old Jim Crow laws. Read this article to see what the new Jim Crow laws look like. Photo courtesy Wikipedia.

McCleskey has since been extended to every corner of criminal law to approve any racist choice by actors in the criminal justice system that is not photographed or documented. The symbols of racism, like nooses, are roundly dismissed by right-thinking people everywhere, but the routine functioning of racism as a component of the criminal justice system is accepted as something as natural as the segregated system of managing black people was in the South for the first half of the 20th century.

How does the system work? There are three distinct phases:

Roundup. The police conduct drug operations almost entirely in poor communities of color. They are rewarded in cash, through drug forfeiture laws and federal grant programs, and have no meaningful constraints on their behavior.

Prison. A conviction means the beginning of the second stage, the one of formal control in prison or jail. As any middle-class parent of a white college student unlucky enough to have been busted learns, there are ways around a felony conviction. Those processed by the system do not have lawyers with the time to get to know their case or the resources to investigate it. Draconian charges are typically resolved by guilty pleas to much less time, even by people who are innocent; trials are expensive and discouraged.

Life in the margins. The final stage is invisible punishment that lasts a lifetime. Prisoners don’t reenter society. They return to a separate world hidden from view governed by a set of oppressive laws, rules and customs, where they are permanently relegated to an inferior status. They are trapped in an underclass, and their numbers now exceed five million. This system affects individuals, the families and neighborhoods of the men locked up, the cities and states where they live and our national politics. There is little doubt, for example, that had the hundreds of thousands of disenfranchised Floridian ex-felons been able to vote in 2000, George W. Bush would never have been president.

The way was paved for the new Jim Crow by Richard Nixon’s “Southern Strategy,” which devised coded ways of disparaging black people without using inflammatory terms, to great success; the Republican Party took power in Southern states that had been Democratic bastions for decades.

Alexander describes the birth of the War on Drugs and traces the explosive growth in incarceration for drug-related crimes from the 1980s through the Clinton years, when more people were locked up than in any other president’s administration, to the present, when we continue to lock up staggering numbers of people despite the collapse of the economy. We now finance all this by draining funds from higher education, infrastructure development, healthcare and every other part of our collective life.

Alexander’s great achievement is to assemble the separate parts, like wires on a bird cage and show how they have created a new totality—a new and pervasive system of managing people of color, tailored to an age where they are not exploited, because their labor is no longer valuable.

But how can racism be so pervasive in a world where Barack Obama can be elected president? Alexander is exquisitely sensitive to the ambivalent effect of affirmative action, how it remedies past injustices while affirming present injustice. She is a product of affirmative action for whom the world is wide open. It took a steady gaze and an ability to detach from herself to see and describe not only the details of the new Jim Crow, but just how the latest version is rationalized.

The old Jim Crow was based on a belief that black people just couldn’t keep up. It was accepted by kind and gentle people as well as by snarling, Bull Connor types. With the advent of people like Obama, we know that black people not only can keep up but also can leap ahead—and that fact is a pillar of the new system. “Highly visible examples of black success are critical to the maintenance of a racial caste system in an era of colorblindness. These stories ‘prove’ that race is no longer relevant. Whereas black success stories undermined the logic of Jim Crow, they actually reinforce the system of mass incarceration. Mass incarceration depends for its legitimacy on the widespread belief that those who appear trapped at the bottom actually chose their fate.”

Slavery was abolished by a war and Jim Crow by a movement triggered by litigation. Neither of these will work to eliminate the new Jim Crow. The Civil War was a battle between two profoundly different economies: one based on nursing fledgling industries with high tariffs and the other on “free trade,” or supplying a rapidly industrializing Europe with commodities. Mississippi was then more like Jamaica than Pennsylvania. None of our divisions are so fundamental.

Alexander delineates how Jim Crow was brought down in the mid-20th century by carefully designed lawsuits presented to sympathetic courts and a movement consciously centered on people like Rosa Parks, a woman of unquestioned integrity. Today, the courts are more conservative than they’ve been in the last 75 years, and it’s not as easy to develop sympathy for felons, to make them emblems of change. We are all criminal—the problem lies in who gets prosecuted.

Alexander is convincing when she shows how the new Jim Crow developed and how it functions, and how techniques that brought down the previous system will not work this time, but she is more tentative about how to mount the social movement necessary to break down the prison-industrial complex and the underclass it has created.

The only source of hope is the monolithic and seemingly inevitable nature of Jim Crow the last time around. In Jackson, Mississippi, in 1951, white kids scrounged up buckets of fallen pecans in the summer and tried to sell them for quarters. Black women watched over them, and then returned to “niggertown” in the evenings after cooking meals that white grown-ups would eat, talking with each other about how if only Stonewall Jackson would have broken through the right flank at Chickamauga, a train of events would have ensued that brought victory to the South. Black people were like the grass, walked on everyday but not really seen except when being trimmed and cut. They were not allowed into parks, pools or hospitals, went to separate schools, drank from separate fountains and stayed in their place in a system that seemed more than impregnable; it was as natural as the sun rising in the east.

Then, Brown v. Board of Education came along and a movement in its wake, and within 15 years Jim Crow was a rubble heap of discarded statutes, ordinances, customs, expectations and offensive words, as unthinkable as slavery. Someday, the dominance of prisons in our society will be looked at in the same light. Michelle Alexander will be credited as one of the first to see not just the separate parts, each an injustice of its own, but to describe the system as such, to name it, and to insist that it must be attacked as a whole.


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    The Community Alliance is a monthly newspaper that has been published in Fresno, California, since 1996. The purpose of the newspaper is to help build a progressive movement for social and economic justice.

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