Understanding Race and Punishment
January 1, 2011
Jan 1, 2011
19 Min read time
Our penal system, with its black tinge, constitutes a profound racial injustice. But is it a new form of Jim Crow?
The New Jim Crow: Mass Incarceration in the Age of Colorblindness
The New Press, $27.95 (cloth)
Texas Tough: The Rise of America’s Prison Empire
Picador, $20 (paper)
America’s incarcerated population has grown immensely larger and darker over the past 40 years—500 percent since the early 1970s. This extraordinary growth is partly the result of surging rates of incarceration among African Americans. The odds that a black man of my generation (born in the late 1960s) will land in prison at some point in his life are twice as great as for a black man born in the 1940s.
Among activists and scholars of race and crime, there is a consensus that our growing penal system, with its black tinge, constitutes a profound racial injustice. Some go further and claim that mass incarceration is nothing less than a new form of Jim Crow. Two important new books—by historian Robert Perkinson and civil rights lawyer Michelle Alexander, respectively—make the best case to date for the Jim Crow analogy.
But while these authors show that the analogy has much to recommend it, is it entirely accurate? And if it’s wrong or incomplete, what does that mean for how we think about—and think about challenging—mass incarceration?
• • •
The dominant historical account of American prisons begins with the creation of the first Northeastern penitentiaries, whose stated aim was to reform wayward souls. In Texas Tough: The Rise of America’s Prison Empire, Perkinson contends that in order to understand the trends of the last four decades, we must revise the familiar story line about the early evolution of American prisons. We need to pay more attention to the history of southern prisons, for the Southern model has come to prevail in much of the rest of the country.
The purpose of Southern prisons was never to reform; instead, the criminal-justice system was designed largely to punish, control, and exploit black bodies. As Perkinson shows in exhaustive detail, incarceration was one of the weapons with which white Texas resisted the assertion of black civil and political rights during Reconstruction. The state’s prison population quadrupled between 1865 and 1868, largely thanks to an influx of former slaves. “A handful landed prison sentences for violent felonies (not infrequently crimes of self-defense against whites),” Perkinson writes,
but the vast majority lost their newfound freedom for trifling offenses, often convicted on the flimsiest of evidence. One fellow received five years for stealing a bushel of corn, another two years for taking a pair of shoes.
After Reconstruction, when Southern blacks lost what little protection they once had from the federal government, Texas’s black prison population increased another 500 percent.
The commitment to punishment and control, in Texas and in the other former slave states, explains why the Northern-style penitentiary, with its rehabilitative ideal, never took hold in the South. Instead, prison administrators instituted a new form of slavery: they leased the growing numbers of black prisoners to private contractors, who put them to work picking cotton and other crops. Convict leasing was a profitable arrangement for Southern states; like slavery, it subjected black prisoners to brutal discipline and sometimes literally worked them to death. As many blacks were killed by convict leasing in Texas alone between 1866 and 1912 as were lynched throughout the entire South during roughly the same period.
Eventually an alliance of labor unions, agrarian radicals, and middle-class progressives succeeded in ending convict leasing. In its place Southern officials developed massive, plantation-style prisons, where prisoners worked directly for the state. While death rates declined, these facilities became sites of terrible exploitation and degradation, justified in explicitly racist terms. “You gentlemen in charge of northern prisons who may have a few negro prisoners, do not know anything at all about the situation here where the great mass of prisoners are negroes,” a prominent penologist told a national prison conference in Austin in 1897. He argued that in Southern prisons, violence against recalcitrant black inmates was a necessary means of control.
New York’s leading black newspaper advocated mandatory life sentences for the ‘non-addict drug pusher.’
In the 1920s a new generation of reformers, predominantly women, campaigned against the plantation-style prisons. But their efforts failed, and so did most subsequent challenges to the system. Even when the reformers succeeded at overturning one form of brutality, another often took its place. After lawsuits forced Texas officials to bring prisoners in from the cotton fields, inmates began to be housed in crowded, suffocating cells with little freedom of movement or access to the outdoors. Today, with physical punishment prohibited, prisoners are condemned to extended periods of solitary confinement instead.
Perkinson shows that prison officials blocked reform and escaped accountability by controlling the public image of their institutions. In the 1960s, for example, Texas prisons achieved a sterling reputation under the leadership of Department of Corrections Director George Beto. Many delegations visited the prisons, saw what Beto wanted them to see, and left impressed. What visitors missed, says Perkinson,
was that Texas’ prison peace was purchased, just as it always had been, with force and fear. Beto may have toted a Bible in one hand and a baseball bat in the other, but it was the bat that made his prisons run.
Given what he calls “the recurrent bankruptcy of the prison—its unremitting racism, its soul-scarring cultural dynamics, its limitless capacity for depravity, its stunning inability, despite repeated overhauls, to reclaim criminals,” Perkinson despairs of improving America’s penal institutions. Instead, he emphasizes the need to minimize their impact by reducing the numbers of inmates through sentencing reform and other measures.
Perkinson’s skepticism is understandable, but it is important to note that challenges to brutal prison conditions sometimes succeed. In Mississippi, for example, the American Civil Liberties Union’s (ACLU) National Prison Project recently prevailed in its campaign to close a supermax unit at the State Penitentiary at Parchman. The state agreed to transfer the inmates to more humane facilities, where they will receive adequate medical and mental-health care.
To this, however, Perkinson might respond that the Mississippi success is the exception and that few know or care about it. As he reminds us, the overwhelming majority of Americans pay little attention to prisons and feel no connection to those inside. The growing racial concentration of our prisons just makes things worse. Prisoners today are easy to ignore for the same reason that they were easy to abandon to the convict lease system a century ago—because they are mostly poor and mostly black and brown.
• • •
But surely we can count on the civil rights community to address such issues? Given the racial makeup of our prisons, you might assume that civil rights advocates would put criminal-justice reform at the top of their agenda.
You would be wrong, says Michelle Alexander. In The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Alexander, former director of the Racial Justice Project at the ACLU of Northern California, describes her frustration with a civil rights leadership that focuses on voting rights, affirmative action, immigration, employment, education, judicial nominations—anything but mass imprisonment. When civil rights groups do take on criminal-justice issues (such as disparities in sentencing for possession of crack and powder cocaine), their work is piecemeal and lacks urgency, she contends.
Alexander is not the first black intellectual to lodge such a complaint. In 1932 W.E.B. DuBois chastised “the emancipated and rising negro” for being “all too eager to class criminals as outcasts, and to condemn every Negro who has the misfortune to be arrested or accused.” It should be said, however, that not all of today’s civil rights leaders warrant such condemnation. NAACP President Benjamin Jealous, for example, has made mass incarceration a focus of his organization’s work. Jealous, who is in his late 30s, recently said:
Our generation was routinely told that ‘the battle has been won. We ended slavery, then there was Jim Crow and we ended that too, so go out, reap the rewards and get rich.’ We came of age just in time to find that our generation had become the most incarcerated people on the planet.
Alexander aims to redirect civil rights advocacy so that Jealous is less exceptional. As she puts it in her preface:
This book is not for everyone. I have a specific audience in mind—people who care deeply about racial justice but who, for any number of reasons, do not yet appreciate the magnitude of the crisis faced by communities of color as a result of mass incarceration.
Alexander knows this audience, for she once shared its perspective. A decade ago she saw a sign on a telephone pole claiming, “THE DRUG WAR IS THE NEW JIM CROW.” At first, she thought the comparison was “absurd”—even if the system was racist in many ways, this was going too far. But she has changed her mind. She now believes it is no coincidence that our prison system began to swell after the civil rights movement had achieved its greatest victories. Both she and Perkinson see this development as part of a recurrent historical pattern: one form of racial subjugation is dismantled, and another takes its place.
In Alexander’s view, “the crisis faced by communities of color” has been caused above all by the war on drugs. The majority of those imprisoned for drug offenses are black or Latino—which would make sense if members of these groups were especially likely to use drugs. Most Americans assume this is the case; in one study, when respondents were asked to envision a drug user, 95 percent pictured an African American. But the stereotype is at odds with reality: blacks, whites, and Latinos use drugs at roughly equal rates.
Perhaps the majority of sellers are blacks, and this explains the high incarceration rate. No, Alexander writes:
Whites tend to sell to whites; blacks to blacks. University students tend to sell to each other. Rural whites, for their part, don’t make a special trip to the hood to purchase marijuana. They buy it from somebody down the road.
Alexander goes after other entrenched justifications for the racial disparity in drug prosecutions. Are black sellers more likely to do their work outdoors, where they are easier to surveil? Do their activities produce more citizen complaints? Are black drug dealers more violent? These explanations might do some work, but not as much as is commonly assumed. In Seattle researchers carefully studied policing practices and found that even in racially mixed open-air drug markets, black dealers were far more likely to be arrested than white dealers.
Once a drug offender has a conviction on his or her record, the pain has just begun. Alexander reminds us of how casually, almost carelessly, we ostracize drug offenders, saying, “Do the Crime, Do the Time,” even if “the time” amounts to a permanent exclusion from civil society. Depending on the state and the crime, a first-time offender may lose his right to vote and to serve on a jury. He will probably become ineligible for federal health and welfare benefits, food stamps, public housing, and student loans. Without housing assistance, he may become homeless and lose custody of his children. Without student loans, he cannot go back to school and try to create a better life for himself and his family. As Alexander puts it, the convicted drug offender enters a “parallel universe,” a hidden world that “promises a form of punishment that is often more difficult to bear than prison time: a lifetime of shame, contempt, scorn and exclusion.” This parallel universe is one manifestation of the new Jim Crow.
When asked to envision a drug user, 95 percent of respondents in one survey pictured an African American.
Alexander extends the analogy even further. Just as Jim Crow defined blacks as inferior, mass imprisonment effectively stigmatizes black men in general—especially young black men in low-income communities—as criminals. And this stigma, in turn, increases their social and economic marginalization and encourages the routine violation of their rights. Intense police surveillance and the occasional roughing up of black youths become accepted practices. Their misbehavior in school gets reported to the police and leads to juvenile court. Employers are reluctant to hire them. Thus, even young, low-income black men who are never arrested or imprisoned endure the consequences of a stigma associated with race.
Alexander recognizes that the analogy between Jim Crow and mass incarceration is not perfect, that the new Jim Crow is not merely a repetition of the old. But some of the qualities that set it apart, Alexander argues, also make it more insidious and difficult to challenge.
For example, the new Jim Crow lacks the overt symbols of racism that gave moral clarity to the fight against the old Jim Crow. Consider the recently narrowed (but not eliminated) disparity in the sentences for possessing crack versus powder cocaine. The law does not say that black drug offenders will be treated more harshly than white offenders; it makes no reference to race. But its impact on African American defendants has been uniquely devastating.
• • •
Like others committed to the Jim Crow analogy, Alexander occasionally overlooks or downplays its analytical limitations. But being as clear as possible on the differences between Jim Crow and contemporary conditions is essential to building a criminal justice–reform movement. After all, racial-justice advocates might be persuaded by the Jim Crow analogy, but success requires persuading skeptics as well. So, in a spirit of solidarity with both authors’ larger purpose, here are some thoughts on the analogy’s shortcomings.
First, consider the motives behind the growth of mass imprisonment. Like Perkinson, Alexander argues that just as Southern whites responded to Reconstruction with convict leasing and Jim Crow, so too white conservatives, first in the South but then elsewhere, returned to power after the tumultuous 1960s by relying on the language of law and order. As she puts it:
Proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse, by demanding ‘law and order’ rather than ‘segregation forever.’
Alexander recalls how Republican presidential candidates tapped into white voters’ anxiety over increased racial equality and a growing welfare state. Barry Goldwater led the way in 1964 when he declared, “The abuse of law and order in this country is going to be an issue. At least I’m going to make it one.” For his 1968 campaign, Richard Nixon perfected Goldwater’s strategy. In the words of his advisor H. R. Haldeman, Nixon “emphasized that you have to face the fact that the whole problem is really the Blacks. The key is to devise a system that recognizes this, while not appearing to.” Alexander quotes John Ehrlichman, another advisor, who summarized Nixon’s campaign strategy as, “We’ll go after the racists.”
This account of the origins of mass incarceration reinforces the Jim Crow analogy by tracing a direct line from a profound social ill (mass imprisonment) to a well-known enemy (racist voters and politicians who pander to them). But the account is incomplete. Something else was going on in the United States in the 1960s and early 1970s: violent crime shot up dramatically just before the beginning of the prison boom. Homicide rates doubled between 1965 and 1975, and robbery rates tripled.
The increase in crime helped to fuel demands for more punitive policies. In The Politics of Imprisonment, Vanessa Barker describes how black activists in Harlem fought for what would become the notorious Rockefeller drug laws. Harlem residents were outraged by rising crime rates in their neighborhoods and sought increased police presence and stiffer penalties. The NAACP Citizens’ Mobilization Against Crime demanded longer minimum prison terms for “muggers, pushers, 1st degree murderers.” New York’s leading black newspaper, the Amsterdam News, advocated mandatory life sentences for the “non-addict drug pusher of hard drugs” because such drug dealing “is an act of cold, calculated, pre-meditated, indiscriminate murder of our community.” What these concerned citizens got were some of the strictest drug penalties in the nation. Under the original Rockefeller laws, possessing four ounces of heroin or cocaine was punishable by a minimum of fifteen years in prison.
Today the Rockefeller laws have become emblematic of the futility and destructiveness of the drug war. We now know that America’s punitive turn has been less successful than its defenders claim: Alexander cites studies indicating that mass imprisonment is responsible for only 3–25 percent of the crime reduction that has occurred since the early 1990s. For his part Perkinson reminds us that longer prison sentences were not the only possible response to the increase in violent crime. The country could have chosen the path recommended by President Johnson’s 1967 Commission on Crime in the United States: crime prevention through “hope and economic opportunity.” And both authors are right to insist that mass imprisonment, whatever its popular appeal, has been a mistake. But the fact remains that mass imprisonment has a complex political and social history that, unlike Jim Crow’s, cannot be neatly reduced to “proponents of racial hierarchy . . . seeking to install a new racial caste system.”
In her account of the prison boom, Alexander employs a rhetorical strategy common to critics of mass imprisonment: she speaks almost exclusively about the war on drugs. This avoids drawing our attention to the less sympathetic violent offender. (To be fair, mass imprisonment’s defenders speak almost exclusively about violent crimes, the more heinous the better.) But it is ironic that Alexander should concentrate on the most sympathetic defendants, for she criticizes civil rights organizations like the early NAACP for avoiding criminal cases unless the lawyers were convinced of the defendants’ innocence. In her view, “Challenging mass incarceration requires something civil rights advocates have long been reluctant to do: advocacy on behalf of criminals.” Just so. And not only the drug kind.
The war on drugs is an unmitigated disaster, and The New Jim Crow makes that case better than anything else I’ve read. But ending the drug war is only a partial response to the problem of mass incarceration. Our prison system has become so enormous not only because of the drug war, but also because we send non-drug offenders to prison more often and for much longer periods of time than virtually any nation on earth.
Most of America’s 2.3 million inmates are held in state prisons. According to the Bureau of Justice Statistics, 49 percent of state prisoners are serving time for violent offenses, 21 percent for drug offenses, 20 percent for property offenses, and 10 percent for public-order offenses. In federal prison half of the prisoners are serving time for drug offenses, but federal prisons hold many fewer people overall—200,000 in 2008, while state facilities held 1.4 million. In jails, which hold about 750,000 people nationwide, the split among the four major categories (violent, drug, property, and public order) is roughly even. Thus, more prisoners are locked up for violent offenses than for any other type, and just under 25 percent (550,000) of our nation’s prisoners are drug offenders. If every person in prison and jail for a drug offense were released tomorrow, the United States would still have the world’s largest penal system.
Turning our attention from drug offenders to others (including violent offenders) requires that we confront issues that do not arise when we talk about the old Jim Crow. Blacks in the era of segregation did nothing to incur the treatment they suffered. But the same cannot be said for all blacks affected by today’s system of mass incarceration. Alexander’s account blurs this distinction. Consider the case of Jarvious Cotton, whose story opens The New Jim Crow:
Cotton’s great-great grandfather could not vote as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy tests. Today, Jarvious Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole.
Cotton is like his ancestors in that he cannot vote. But, unlike his ancestors, he was convicted of murder. Alexander’s passive construction—Cotton “has been labeled a felon”—suggests that he had no choice in the matter. The compelling arguments against felon disenfranchisement would lose none of their force if Alexander were to acknowledge Cotton’s crime, but she never does.
Those who call attention to the harm caused by our current criminal-justice policies must also be ruthlessly honest about the harm caused by crime. This, too, is a matter of racial justice: victims of crime—especially violent crime—are disproportionately poor, young, and black or brown. It is also a strategic imperative. Tough-on-crime advocates are not going to stop talking about violent offenders and the need to protect communities from them. If reformers shy away from the topic, their chances of building a broad movement for change will suffer.
• • •
The final distinction between Jim Crow and mass imprisonment concerns the race of the victims. Whites were not direct victims of Jim Crow, but today, many whites—most of them poor—are behind bars. One-third of U.S. prisoners are white, and incarceration rates have risen steadily even in states where most inmates are white. Perkinson tells us that one in 39 white men has been incarcerated. This is astonishing, even if African American men are imprisoned at much higher rates. Charges for some of the offenses that we punish most severely, such as possession of child pornography, are mostly brought against middle-aged white men.
Alexander claims that mass imprisonment’s true targets are blacks, and that incarcerated whites are collateral damage. But that’s a lot of collateral damage. And in strategic terms, it is clear that this approach to mass incarceration has costs. Although defining mass imprisonment as a black thing may be effective in garnering support from fellow racial-justice advocates, it is likely to discourage whites (including white prisoners, ex-prisoners, and their families) from joining efforts to fight mass imprisonment. Thus the Jim Crow analogy threatens to undermine a goal that Alexander and Perkinson share: forging a multiracial grassroots movement against mass imprisonment.
Advocates for a smaller, less harsh prison system must approach the problem in a way that crosses racial lines. The Sentencing Project recently did this in a report noting that although whites remain relatively underrepresented as drug offenders, the percentage of drug offenders who are white has risen since 1999, while the percentage of drug offenders who are black has declined. (The Hispanic percentage has remained constant.) And the ACLU has taken a multiracial approach by targeting intolerable prison conditions not only in Mississippi, but also in Idaho, where 76 percent of the prisoners are white.
Finally, advocates must also marry their moral claims with appeals to society’s collective interest. On this last point, there is some reason for hope. Fiscal considerations may induce increasing numbers of policymakers, politicians, and voters to support measures to reduce our bloated prison system. Downscaling Prisons, a recent report published by The Sentencing Project, documents how four states have recently reigned in their prison systems to some degree. From 1999 to 2009 New York’s prison population declined by 20 percent, while New Jersey’s declined by 19 percent. Michigan’s dropped 12 percent from 2006 to 2009, and Kansas’s fell 5 percent from 2003 to 2009. Just as important, crime rates in these states continued to fall even as prisons got smaller. Criminologist Franklin Zimring documents this phenomenon in a forthcoming book about New York City, which has seen dramatic crime reductions even as it has reduced the number of offenders sent to state prisons.
Given the magnitude of the crisis Perkinson and Alexander describe, reducing the prison populations in four states is slight progress. But if we are to mobilize effectively against the punitive overreach these authors document, we must celebrate and learn from even small victories.
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January 01, 2011
19 Min read time