The New Jim Crow

Runaway hit ... Book about the war on drugs in the US and the criminalisation of large parts of the Afro-American population ... Supreme Court validates racial bias of the criminal justice system ... Blacks like crack cocaine, whites prefer powder cocaine ... Sentencing discrepancies ... US incarceration rate the highest in the world ... Book review by Stephen Keim 

The old Jim Crow

WHEN The New Press published The New Jim Crow in hard back two years ago, the print run was a commendable 3,000 copies for a scholarly work.

When the paperback edition was published in January last year, the book sold 175,000 copies in less than two months.

Even as The New Jim Crow has been a publishing phenomenon it has been an even greater phenomenon in the world of ideas.

The thesis of The New Jim Crow is simple. As the author Michelle Alexander acknowledges, the book's seminal arguments have been put forward for some time, but have not reached the wide circle of listeners that is necessary for change to be possible. 

Alexander argues that the impact on Afro-Americans of incarceration and other controls of the criminal justice system has created a new caste system similar to that maintained by the Jim Crow laws that took hold in the United States after the Reconstruction efforts faltered and remained effective until dismantled by the Civil Rights legislation in the early 1960s.

The United States legal system is designed to maintain the majority of Afro-Americans as part of a caste that has reduced opportunities; an increased probability of reduced rights; diminished living standards; and the prospect of spending much of their lives being shuffled between prison and parole. 

The pervasiveness of the caste system has been greatly enhanced by the war on drugs, a legislative and administrative complex of activities that commenced in the early 1980s and was persuasively articulated, for the first time, by President Reagan.

The war on drugs has been overwhelmingly applied against Afro-American and, to a lesser extent, Latino communities.

Alexander quotes persuasive data from surveys and hospital emergency centres that indicate that white Americans indulge in illicit drugs to the same extent as (or more than) Afro-Americans, yet it is Afro-American communities who bear the brunt of law enforcement and a slanted legal system. 

The war on drugs has been heavily resourced by all administrations since 1982.

Local and state police forces have been lured into the practices of the war by the promise of generous resourcing. The tactics promoted have included random stops of vehicles and random searches of pedestrians.

Police forces have been heavily armed and riot police and their associated methods have been used to carry out these tactics and to execute drug search warrants.

All of this behaviour would have been politically suicidal if used against most white communities. However, because the methods have been applied on racial lines, the political outfall has not been so pronounced. The powerlessness of ghetto neighbourhoods has been reinforced as has the racial stereotype of the drug criminal.

The effect on individuals caught up in the drug war has been exacerbated by laws that criminalise possession of small amounts of relatively harmless drugs.

The widespread use of mandatory sentencing has meant that young black men have spent years in jail while white college boys, factory workers and financial industry jocks continue to enjoy their recreational use of various illegal drugs.

The laws concerning the use of crack cocaine (principally, a drug of choice among Afro-American users) have been much more punitive than the laws governing sentencing for powder cocaine, a drug more popular with whites. 

The creation of a permanent caste was reinforced by punitive laws directed at anybody convicted of a felony. These continue to affect the lives of Afro-American men after they are released from prison.

Convicted prisoners lose their rights to public housing; to various kinds of welfare including food stamps; and often to the chance to obtain employment through restrictions on licences for a wide range of occupations.

Difficulties in obtaining private transport and the vagaries of public transport mean that the few far away jobs are difficult to gain or maintain.

Complying with conditions of parole is equally fraught. The result is a merry-go-round that sends people back to prison.

Even participation in the political life of society is denied as most states have laws preventing ex-prisoners and those convicted of felonies from voting.

The law fails the members of this caste on many levels.

Public defence lawyers are under-resourced and few in number. The odd wealthy white person who stumbles into the cross-fire of the war on drugs is usually able to hire a lawyer and, with the threat of a well-resourced defence case, earn a favourable deal at the plea bargaining table.

Meanwhile, those arrested in the racially directed sweeps through the ghettos are lucky to see a lawyer for more than a few minutes and are forced to plead guilty to at least one set of charges, even when the evidence is weak.

Plea bargaining is a great system for those who come to the table with power. 

*   *   *

A WAVE of decisions of the US Supreme Court have validated the racist biases of the system.

In McCleskey v Kemp, the court received overwhelming evidence that the death penalty in the State of Georgia was applied on racial lines both in respect of the colour of the defendant and the colour of the victim.

A black defendant accused of killing a white victim was most disadvantaged. However, in what has been called the Supreme Court's worst decision, it was ruled that such statistical evidence was not only unpersuasive, but inadmissible.

Only evidence of overt racial bias in the particular case would be admissible to set aside a decision. Such evidence is very hard to come by in a system that protects the secrecy of the reasoning process of jurors.

In United States v Clary, Judge Clyde Cahill of the Federal District Court of Missouri, challenged the 10-1 discrepancy in the sentencing laws between crack and powder cocaine and carefully analysed the lynch mob mentality that saw this sort of discrepancy written into the statute books.

He refused to sentence an 18-year old first offender to 10 years in federal prison instead sentencing him to four years, as if the substance was powder cocaine.

The Appeals Court overturned the decision and Clary, who had served his four years, was ordered back to prison to serve the remaining six.

Another key part of the racist structure was preserved in Armstrong v United States. This time, the Supreme Court overruled decisions in the courts below that would have allowed defence counsel to have access to the files of prosecutors in other cases.

The defence was seeking to argue that clients were being hit with federal charges (and more severe penalties) in circumstances where prosecutors would not have done the same thing to white defendants.

The Supreme Court ruled that the defendants had to have specific evidence of a white defendant who had been treated differently before discovery would be ordered.

This was a classic Catch 22, in that the only way in which clear evidence of such racially biased exercise of prosecutorial decisions could be found was in the files of previous decisions.

Purkett v Elm put beyond reach the racist use of peremptory challenges in jury selection to obtain all-white juries, even to the point of saying that prosecutors could get away with nonsensical and contradictory reasoning providing they did not actually come out and admit a racist reason. 

A series of decisions have blessed the racially biased approach to law enforcement by police officers and police forces.

The most effective dismantling of the constitutional and legislative protections that might have been available occurred in Alexander v Sandoval.

Sandoval was about drivers' licence tests being administered only in English. However, it dismantled the effect of key parts of the Civil Rights Act of 1964, holding that regulations made under Title VI of that Act gave no private right of action.

As a result, those who suffered racial discrimination, including in law enforcement, could not make any effective claims.

The dismantling of protections against racially slanted law enforcement has been accompanied by another line of cases that has dismantled Fourth Amendment protections against searches without cause carried out as part of the war on drugs.

Florida v Bostick, Schnecklothe v Bustamonte, Ohio v Robinette, Atwater v City of Lago Vista and Whren v United States form part of this series of cases. The lack of limits on police stopping and searching forms a powerful tool in the racially based enforcement of drug laws. 

*   *   *

The new Jim Crow

THE New Jim Crow is not an arid study. Alexander tells the stories of individuals caught up in the war on drugs - these personal stories are as harrowing as the statistics are shocking.

In the period of less than three decades since the war on drugs was launched, the population incarcerated in United States jails have grown 800 percent from around 300,000 to over two million. 

(The statistics in The New Jim Crow tend to come from around the middle of the last decade. This is a factor of time of publication and writing and the delay in reliable new statistical studies being published.) 

The United States has the highest incarceration rate in the world, beating countries like Russia, China and Iran. In Germany, 93 people per 100,000 are in jail. In the United States, it is 750 per 100,000.

The United States has a higher proportion of its black population incarcerated than did South Africa at the height of apartheid.

In Washington DC, it is estimated that three out of four young black men (and nearly all of those in the poorer neighbourhoods) can expect to serve time in prison. And Washington DC is no different to black communities across America. 

This is the situation, even though studies show whites, particularly white youth, are more likely to engage in drug crime than coloured people.

Curiously, drug use was declining when the great war on drugs was declared.

Alexander also discusses the strategies to wind back the creation and maintenance of caste by means of the justice system. 

There are also structural issues, including the financial dependence and jobs that are created by prisons, particularly in rural areas, and the financial and social addiction of state and local government to police funding. 

The New Jim Crow describes a racial bribe offered to privileged Afro-Americans to gain respectability, opportunity and success while their fellow citizens are stuck in the new caste enforced by racially-based law enforcement and legal systems.

Disadvantaged whites, while they suffer at the hands of the economic system that keeps them poor and others rich, can always rejoice that they are not black and do not have assault vehicles proceeding through their neighbourhoods with police administering body, vehicle and dwelling searches. 

Alexander charts a way forward to fight for real change to dismantle this caste system.

The New Jim Crow will not stand on book shelves slowly gathering dust.

At time of writing there are discussion groups at Plymouth, at Princeton, and at Pasadena among others examining and sharing the book's ideas. 

The caste system described by Michelle Alexander exists because most people do not believe it exists.

The New Jim Crow, in describing the system, has started the movement for change. 

Stephen Keim 

The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander. Published by The New Press. 

Comments

[Robert P. Robertson]

Of all of the great books informing the public of the massive manipulation of Africans in America into a criminal class of people and their ultimate re-enslavement in the prison industrial complex/plantation, not one has narrowed down the cause of it, the very beginnings of this massive persecution. Has there been a social, economic, and political effort to criminalize Africans in America? Yes. Has there been a massive manipulation of Africans in America into re-enslavement in the prison industrial complex/plantation across America? Absolutely. Is it the same in the past as it is in the present? You bet. . . But how is it being done, from where is it coming, and where does it originate? Not one of these great, insightful, and competent authors has past or present put their focus on "the source" of the problem. In THE CONSTITUTION AND THE NEW JIM CROW, I have picked up where Thorsten Sellin, Douglas Blackmon, and Michelle Alexander has left off. The persecution of Africans in America stems directly from the "exception" in the 13th Amendment of the United States Constitution and has been the machinery of the persecution, the massive deprivation, disadvantage, disparagement, and discrimination Africans in America has suffered for the last 148 years. The wise Aesop told a story 550 years ago called the Shepherd and the Lion. Until the people, especially Africans in America petition the government to remove this thorn from the paw of America, no one will ever be free.