Ppt definition assignment

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 For this assignment, you are required to identify definitions for ten words and phrases crucial to understanding aspects of race, class and gender. In addition, you will paraphrase definitions and align them with an appropriate illustration. Finally, you will upload the assignment in a series of PowerPoint slides which concisely pull together a quoted definition, your paraphrase of that definition, and a visual illustration of the definition. Please note a simple Webster’s dictionary definition (or similar) will not be sufficient, please use course material and other peer reviews articles to define these words and phrases. 

 1. Civil Rights
2. Race
3. Oppression
4. Separate but equal
5. Intersectionality
6. Jim Crow
7. Microaggression
8. White guilt
9. Assimilation
10. Juneteenth
11. Black Lives Matter  

 Criteria for Success

  • Each term is on its own slide.
  • The slide must have a quoted definition from the course readings or a peer-reviewed article. It must
    include an APA in-text citation.
  • The slide must have a paraphrased definition of the term in your own words.
  • Each definition is aligned with a visual representation that illustrates the definition.
    • Picture, gif, drawing, MEME, illustration strip, short clip, ie.
  • APA style reference of in-text citation at the very bottom of the slide.

WHITE PRIVILEGE AND AFFIRMATIVE ACTION

by

Sylvia A. Law*

As we approach the new century, the Nation is at a critical juncture with respect to

race relations and the law. For the past two decades “affirmative action” has been the
central mechanism through which we have promoted racial integration, and, at the same
time, a central issue of controversy.

Since 1996, many authoritative voices challenge the legitimacy of affirmative efforts
to achieve racial integration. The Supreme Court has struck down many affirmative
action programs. The Court has not upheld any affirmative action program since 1989,
when, by a 5-4 decision, it approved a narrowly targeted Congressional program to
encourage minority ownership of broadcast licences.1 In 1996, California voters
approved Proposition 209, broadly prohibiting any form of affirmative action on the
basis of race or gender. In the same year, in the Hopwood decision, the Fifth Circuit
held that the University of Texas could not give any consideration to race in determining
admissions to its law school. 2 In November 1998, the First Circuit Court of Appeals
held that the affirmative action admission policies of Boston Latin High School were
unconstitutional. 3 Before I discuss affirmative action, I would like to put the issues
into a new analytic framework, suggested by my title — White Privilege.

I. WHITE PRIVILEGE.

A. The General Concept.

Stephanie Wildman, in her magnificent book PRIVILEGE REVEALED, notes that “The
notion of privilege . . . has not been recognized in legal language and doctrine. This
failure to acknowledge privilege, to make it visible in legal doctrine, creates a serious
gap in legal reasoning, rendering law unable to address issues of systemic unfairness.”4

* Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, NYU Law School. This

was originally presented as The Mansfield Lecture, at The University of Akron School of
Law, Jan. 28, 1999. Many people gave me helpful comments and research leads. I am grateful
to: Ben Ensminger-Law, Kenneth Huber, Paul Finkelman, Kenneth T. Jackson, Alice Law (my
mom who studies the history of our homesteading family), Josh Meisler, John Reid, Michael
Schill, and Stephanie Wildman. Adam Wendell, NYU 2000, provided magnificent research
help. My assistant, Leslie Jenkins, is an invaluable aid. NYU Law School’s Filomen
D’Agostino and Max E. Greenberg Faculty Research Fund provided financial support.

1 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990). This was one of Justice Brennan’s
last decisions and many observers see it as a farewell tribute to him.

2 Hopwood v. State of Texas, 84 F.3d 720 (5th Cir. 1996), cert. denied, 116 S. Ct. 2581 (1996).
3 Wessman v . Gittens, 160 F.3d 790 (1st Cir. 1998).
4 STEPHANIE M. W ILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES

AKRON LAW REVIEW [Vol. 32:3

White privilege is the pervasive, structural, and generally invisible assumption that
white people define a norm and Black5 people are “other,” dangerous, and inferior.
Peggy McIntosh observes that privilege can “take both active forms, which we can see,
and embedded forms, which as a member of the dominant group one is taught not to
see.”6 Ruth Frankenberg observes:
Naming “whiteness” displaces it from the unmarked, unnamed status that is itself an
effect of its dominance. Among the effects on white people of race privilege and of the
dominance of whiteness are their seeming normativity, their structured invisibility . . . .
To speak of whiteness is to assign everyone a place in the relations of racism. . . . [It is
more difficult] for white people to say “Whiteness has nothing to do with me — I’m not
white” than to say “Racism has nothing to do with me — I’m not a racist.”7

Careful studies show that by the time children are in kindergarten they are aware of
race. Both white and Black children attach positive value to whiteness and negative
value to Blackness.8 Thus Black parents must do serious work to educate their children
to deal with daily acts of racism that they will experience. We white parents experience
much greater discretion in deciding whether and how to guide our children in relation to
race.

When people are asked to describe themselves in a few words, Black people
invariably note their race and white people almost never do.9 Surveys tell us that
virtually all Black people notice the importance of race several times a day. White
people rarely contemplate the fact of our whiteness — it is the norm, the given.10 It is a
privilege to not have to think about race.

The concept of white privilege, even if powerful and true, is so general that a
reasonable person could fail to understand it. Indeed, reasonable people could question
the sanity of someone who asserts the power of “invisible forces” shaping our civil life.

Concrete stories may help to make white privilege visible. All of my stories are
personally embarrassing. I am more sensitive and politically correct on race issues than

AMERICA 8 (1996).

5 This capitalization choice is conscious. See id. at 4-6.
6 Peggy McIntosh, White Privilege: Unpacking the Invisible Knapsack , INDEPENDENT

SCHOOL (Winter 1990).
7
RUTH FRANKENBERG, THE SOCIAL CONSTRUCTION OF WHITENESS 6 (1993).

8 FRANCES E. KENDALL, DIVERSITY IN THE CLASSROOM: A MULTI CULTURAL APPROACH TO
THE EDUCATION OF YOUNG CHILDREN 19-21 (1983).

9 Angela P. Ha rris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581,
604 (1990).

10 See Martha A. Mahoney, Segregation, Whiteness, and Transformation, 143 U. PA. L.
REV. 1659, 1662-67 (1995).

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
many white people. I have been active in the civil rights movement since the early
1960s. I was jailed in Yellow Springs, Ohio in 1964, in a struggle to desegregate the
local barber shop. Charges against me are still pending, at least theoretically. I try to
avoid being a racist or discriminating on the basis of race. But I do enjoy white
privilege. And I suspect that I notice it in a small fraction of the cases in which it
occurs.

B. Examples of White Privilege: Mobility.

1. Taxi Cabs.

Whites are systematically more mobile than Blacks. That difference is largely
invisible to white people. Taxi cabs are emblematic of white privilege. 11 Taxi’s don’t
pick up Black people. I live in downtown Manhattan. Over the years, I have often said
to a Black guest, “Let me walk you to the street and help you catch a cab.” These are
well dressed, middle-aged, professional people. Especially late at night, no one ever
declines my offer. Cabbies don’t like to pick up Black people.

Recently I was uptown, late on a cold night, with lots of bags. I walked to Central
Park West to catch a cab. A well dressed Black couple was on the corner seeking a
taxi. In accordance with City etiquette, they moved a half block up the street to get the
first available cab. I understood that they were entitled to the first, and I to the next. A
taxi came, drove right by them and pulled up next to me.

I could have held the door, yelled to them to come, and given them the cab. I could
have taken the cabbie’s number and reported him to the Taxi and Limousine
Commission. I could have discussed his inappropriate behavior with him. I did
nothing. The driver’s behavior was not a matter of individual preference or taste. His
action was illegal. Since Rosa Parks refused to sit at the back of the bus, and Congress
passed the Civil Rights Act of 1964, it has been illegal for common carriers, including
taxis to discriminate on the basis of race. 12 Nonetheless this happens all the time in
New York City and everyone knows it. Our mayor, Rudolph Giuliani, is widely known
as a man with zero tolerance for quality of life offenses. Aggressive law enforcement
has rid the City of squeegee men and loud radios.13 But there has been absolutely no

11 CORNELL WEST, RACE MATTERS xiv-xv (1993). West explains how, despite being

dressed in a business suit en route to an important meeting, he was unable to hail any one of
many empty taxis. Id.

12 See Civil Rights Act of 1964, 42 U.S.C. §2000a (1998). Some state statutes actually
specify that taxis are a public accommodation. See, e.g., Totem Taxi, Inc. v. New York State
Human Rights Appeal Board, 480 N.E.2d 1075 (N.Y. 1985) (taxis are public accommodations
under the New York State civil rights law); MINN. STAT . ANN. §363.03, Subdivision 3 (1998).

13 See e.g., Mike Allen, Giuliani to Ban Food Vendors on 144 Blocks, N.Y. TIMES, May
24, 1998, at A27.

AKRON LAW REVIEW [Vol. 32:3
effort to enforce the anti-discrimination laws against taxi drivers.

Catching a cab in New York is a fine art form. Whites enjoy a serious privilege over
Blacks. Most whites do not even notice. And those that do sometimes just take the
privilege, as I did that night.

2. DWB or driving while black.

Driving presents another vivid example of white privilege. A couple of years ago my
then teen-age son drove across the country with his teen friends. He had a long pony
tail and drove a four-wheel-drive Yuppie van, with New York plates. In Iowa, he got
pulled over in the middle of the night, driving 20 miles an hour over the speed limit. He
told me with glee and pride how he had talked his way out of a ticket. I congratulated
him. He observed that he had learned with the master. That would be me.

I have never been pulled over unless I have done something pretty egregiously
wrong–speeding, running a “yellow” light that had long since turned red. And usually,
like my son, I talk my way out of these encounters. When I get in the car, I know that
if I obey the law, I will not be stopped. If I am stopped, I can usually avoid a ticket,
with deference, charm and ditziness. Most white people can tell wonderful, funny,
imaginative stories about how we danced out of a legitimate traffic tickets.

That is white privilege. A growing scholarly and academic literature documents the
phenomena of DWB, or driving while black.14 These studies suggest that when Blacks
— especially men and young people — get behind the wheel, they can expect to be
stopped, even if they obey the lights and the speed limits. A recent decision by a federal
district court in Massachusetts recognized the reality of DWB. 15 In this case, the
defendant was a middle aged Black man. He had a twenty-year history of steady
employment and responsible, loving relations with an immediate and extended family.
He was in the back seat of a car that was pulled over by the police. They found a
weapon next to him on the seat and charged him with the serious federal crime of being
a Felon in Possession of a Firearm. He did not challenge the basic charge. But under
the Federal Sentencing Guidelines, federal judges are required to impose much more
serious sentences if a defendant has a history of prior convictions. The judge noted
that four of his prior convictions involved traffic violations many years earlier. In each
case he had been pulled over by the police, even though, as the court observed, “not
one charge involved driving erratically, or violating a traffic law.” Rather, after he was
pulled over, officers found some defect in his car registration or insurance papers. For

14 Tracy Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333, 341-52 (1998);

Christopher Hall, Challenging Selective Enforcement of Traffic Regulations After the
Disharmonic Convergence: Whren v. United States , United States v. Armstrong and the
Evolution of Police Discretion, 76 TEX. L. REV. 1083, 1088 (1998).

15 United States v. Leviner, 31 F. Supp. 2d 23 (D. Mass. 1998).

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
these paper infractions, on four occasions he was charged with a felony and sentenced
to 10 days to 6 months in jail, with the sentence always suspended. The Federal Judge
in Massachusetts, recognizing the phenomena of DWB, refused to allow these prior
convictions to be used to impose a very harsh sentence.

In my career as a sometimes excessive driver, I have also had the occasional
paperwork problem. The inspection sticker is out of date. The current insurance card
or registration is in the other purse or in my office. In my experience, the normal legal
rule is that if you have legal papers some place, you mail them in and there is no
problem. Felony charges!? Jail terms, even if suspended?! No way!

This is white privilege. The embarrassing part of the story is that I did not notice it.
During all the years in which I taught my son, by example, to talk his way out of
perfectly legitimate traffic tickets, I never asked, “Honey, do you appreciate that
whiteness is the sine qua non of our ability to do this.” I never asked him and I never
really noticed it myself.

C. More Examples of White Privilege: Home Ownership.

For most Americans, home ownership is our most important source of wealth.
Home ownership is at the heart of the American Dream. It has a profound impact on
inter-generational opportunity.

Our Founders understood that owning secure and productive property was a key
foundation to the freedom and independence necessary to responsible citizenship and
the exercise of all other liberties. The federal constitution allowed states to limit the
franchise to property holders, and all states did so.16 Today, after enormous historic
struggle, the right to vote is not limited to white, male property owners. Further,
“property” now takes many forms — a license to practice law or medicine, taxi
medallions, pensions, Social Security and so forth.17 Nonetheless, home ownership
remains a matter of core importance. Whether or not we, our parents, or our
grandparents owned property matters. It matters to our children and grandchildren. In
1999, at every income level, vastly more white people own homes than Blacks.18

There are many reasons for this, but two big public moments in the past century go
far to explain who owns a home and who doesn’t. The first moment is the settling of
the Midwest and the west at the end of the 19th and beginning of the 20th century.
The second is the great housing boom at the end of World War II.

16

JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHTS 47 (1992).
17 Charles Reich, The New Property, 73 YALE L.J. 733, 734-37 (1964).
18 MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW

PERSPECTIVE ON RACIAL INEQUALITY 109 (1995).

AKRON LAW REVIEW [Vol. 32:3
1. Settling the Great Plains and West.

I grew up in the 1950s in Minnesota, the Dakota’s and Montana. The land of Fargo

and Garrison Keilor. No Black people lived there then and there are few now.19
Everyone understood that the old money, the elders of the community, all came from
the federal homestead program. Swedes, Norwegians, Germans. Virtually all the
colleges and universities were federal land grant programs. We knew that the federal
government had passed this wealth to the people who stepped up to claim it, and who
would work the land.

The embarrassing part of this story is that it was not a few years ago that I asked,
“Why were all the homesteaders white? Why were all the land grant colleges white?
How did this vast area of our country, settled through federal largess, become all
white?” I began asking friends, serious historians and legal scholars, to tell me why this
vast area of our Nation that I know best is virtually all white. Most did not know.
Some offered explanations that struck me as racist. “Blacks don’t like cold weather.”
Most Nordics do not regard the cold as an affirmative good. “Blacks had deep
attachments to their local communities.” But in the post Civil War South these were
communities of profound violence and economic exploitation. There is very little in the
legal literature on the racial dynamic of the settlement of the United States.20 Indeed, I
have found only one book, Nell Irvin Painter, Exodusters: Black Migration to Kansas
after Reconstruction, that discusses the issue. The reviews suggest that this study is
unique.21

After the Indian Wars, in the mid-nineteenth century, people living in the Midwest
sought the help of the federal government to give them legal title to land. Proposed

19 In 1950. African-Americans made up less than 0.1 percent of the population of North
and South Dakota, and 0.2 percent of Montana. See U.S. BUREAU OF THE CENSUS , U.S.
CENSUS OF POPULATION 1950, VOL. II: CHARACTERISTICS OF THE POPULATION 1-106 (1950). In
1990, African-Americans made up 0.6 percent of North Dakota, 0.5 percent of South Dakota,
and 0.3 percent of Montana. See U.S. BUREAU OF THE CENSUS , CHARACTERISTICS OF THE
BLACK POPULATION 1990 at 1 (1990).

20 But see Phyliss Craig-Taylor, To Be Free: Liberty, Citizenship, Property and Race, 14
HARV. BLACKLETTER J. 45 (1998). Craig-Taylor assumes that Black people did not benefit
from homesteading because by 1870 “the most significant period of public land divestiture in
the history of the United States” was over. Id. at 57. Homesteading continued for another 60
years. See also Rev. Jessie L. Jackson, Sr., America: Our Past, Present, and Possibilities, 31
LOY. L.A. L. REV. 1339, 1340 (1998).

21 David H. Donald, North To Home: Exodusters, N. Y. TIMES BOOK REVIEW, Jan. 30, 1977,
at 7. “What makes this book so important, is. . . [that it] is the first full-length scholarly study
of this migration and of the forces that produced it. . . .” Id. William Hair, Exodusters: Black
Migration to Kansas After Reconstruction, 82 AMER. HIST. REV. 1079 (1977). The American
Historical Review said this issue has “been undeservedly ignored. Id. Nell Irvin Painter has
produced a book which rescues the Exodusters from obscurity . . . .” Id.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
federal Homestead legislation was opposed by Southern legislators, “fearing
development of non-slave states.”22 When the Southern states seceded from the Union,
the Republicans responded to the claims for legal title. In the midst of the Civil War,
they passed the Homestead Act of 1862.23 The Act gave any person over age 21 or a
head of household, who was a citizen or intends to become one, the opportunity to
claim ownership of 100 acres of land. From a modern perspective, it is interesting that
the Act gave these rights to both citizens and those who intended to become citizens.
To own the land, the homesteader had to live there for five years and make
improvements to the property.

Why were all the homesteaders white? When the legislation was first enacted in
1862 Black people were not citizens, but rather property. So, it is not surprising that
Black people did not become homesteaders at that time. But the Homesteading program
continued until 1934.24 Minnesota was the major homesteading state in the years
immediately following the Emancipation Proclamation. Kansas and Nebraska lead
homesteading in 1869-1879, and the Dakotas in the 1880s. Overall, the peak years for
homesteading were: 1871, 1880 and 1902.25 All these years are after the end of the
Civil War.

At the end of the Civil War, abolitionists and Republicans were concerned about the
economic situation of freed slaves. They believed that land ownership was the key to
independence. However, no one encouraged freed slaves, experienced agricultural
workers, to claim the 100 acre homesteads in the Midwest and the West. Rather, in
1866 Congress passed the Southern Homestead Act to give citizens loyal to the union,
including former slaves, the opportunity to claim 40 acres of land in Mississippi,
Arkansas, Louisiana and Florida.26 Most of the land available to the Southern
homesteaders was very poor. White southern land owners fiercely resisted federal
efforts to give land, even poor land, to former slaves. Rather, the Southern plantation
owners favored the share cropping system under which former slaves paid rent,
worked the land, and were always in debt to their former masters.27 The Southern
Homestead Act was repealed ten years later in 1876.28

By 1876, former slaves appreciated that the share cropping system perpetuated the

22 Merrill G. Burlingame, Montana, 19 ENCYCLOPEDIA AMERICANA 395 (1995).
23 12 Stat. 392 (1862).
24 The Taylor Grazing Act of 1934 ended homesteading in the continental United States,

but continued it in Alaska. 14 ENCYCLOPEDIA AMERICANA 330 (1995). NELL IRVIN PAINTER,
EXODUSTERS : BLACK MIGRATION TO KANSAS AFTER RECONSTRUCTION 255 (1976).

25 By the 20th century, most of the good farming land was taken. In 1904 the Kincaid Act
allowed homesteads of 320 acres on dry lands. 14 ENCYCLOPEDIA AMERICANA 330 (1995).

26 14 Stat. 66 (1866). See also Jackson, supra note 20 at 1340.
27 Painter, supra note 24, at 54-70.
28 19 Stat. 72 (1876).

AKRON LAW REVIEW [Vol. 32:3
economic arrangements of slavery and that the laws and dominant social attitudes of the
white South made it unlikely that they could acquire the property that they saw as
necessary to independence. In 1877, 3,000 Black people, purporting to represent
29,000 former slaves, petitioned the President asking for help in finding land, either on
the frontier or in Africa.29 From 1877-1879, many Southern Blacks explored the
possibility of emigrating to Africa, principally to Liberia, and some did so.30 Beginning
in 1877, a small number of Blacks from the Confederate states migrated to Kansas, and
particularly to Nicodemus, in Graham County.31 By 1880, the total Black population of
Nicodemus was 700.32 The settlement fared poorly during the winter of 1877-78,
because they arrived too late to plant a crop and had few horses or mules.33 But,
“[n]ew settlers and a fresh growing season saved the Nicodemus colonists from the
worst of their wants. By the next harvest they were on their feet again.”34 The most
fortunate of the Nicodemus settlers accumulated enough money to rent or buy farms.
“The less fortunate — and in 1880 these outnumbered the former — remained in
towns.”35

This small, marginally successful, community of Black people settling in the frontier,
inspired a variety of southern Black people to think of migration to the frontier. Kansas
had a particular attraction for Black people. As Painter explains:

Kansas represented something that Nebraska and the Dakotas did not. To make
Kansas a Free State, blood flowed freely during the 1850s. It was the quintessential
Free State, the land of John Brown, “a free state in which a colored man can enjoy
his freedom.” . . . Now, Kansas made no special appeal to attract Black migrants; it
offered them no special inducements. But old abolitionist, temperance Republicans
ruled the state, and they held out precis ely the same welcome to Black settlers as to
white. This even-handed sense of fair play amounted to an open-armed welcome, in
comparison to much of the rest of the country at the time.36

But more important than the affirmative attraction of Kansas, or any other frontier

state, Blacks in the South in the 1870s were driven to leave by “terrorism and poverty”
and the fact the federal government refused to protect Black people from massive
violence.37 In 1879, Southern Black leaders responded to this terrorism and enforced
debt and poverty, petitioning Congress to adopt a program to provide former slaves, or

29 PAINTER, supra note 24, at 87.
30 Id. at 137-145.
31

Id. at 149.
32 Id. at 150.
33 Id. at 151.
34 Id. at 152.
35 PAINTER, supra note 24, at 153.
36 Id. at 159.
37 Id. at 190, 160-183.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
at least those who had served in the Union Army, land on the frontier, subsidized
transportation and supplies and support for the first year.38 The proponents of this
concept did not seek a legally exclusive Black territory.39 “The location of this territory
remained indeterminate, although vague references in discussion and Senatorial debate
mentioned Arizona or part of the Indian Territory.”40 And, of course, Kansas still had
its special appeal.

Congress never adopted this program. But the “Kansas Fever” idea captured the
imagination of six thousand Black people from Louisiana, Mississippi and Texas.41
They took families, belongings, and meager funds and got on river boats to take them to
St. Louis. When they “learned on the Mississippi River banks or in St. Louis that there
was no free transportation, no free land, no General Sherman, and no Negro state, it
made no difference whatsoever. They still meant to leave the South, and once
disembarked in St. Louis, they would not go back.”42

Other Black people who left the South in this period had a more realistic sense of
their options. Some Black emigrants understood that in Kansas in 1879, the best quality
land could be purchased for $6 an acre, mediocre land for $4 an acre, and the poorest
for $2 an acre. Homestead land provided 160 acres of the poorest land for $18 in fees
and an obligation to work it for five years.43

By 1879, when massive numbers of Southern Blacks sought to resettle in Kansas,
most of the Kansas homestead land had been settled. In 1866, the federal government
was willing to recognize that the end of slavery required that former slaves be given
land to work.44 That effort was designed to fail and did in fact do so. It required that
former slaves live in close proximity with former masters.

By 1879, the former slaves appreciated that they needed to move out. But they
needed help. Why didn’t we give it to them? Some Republic ans in Congress sought
federal aid, but it was not forthcoming.45 By 1879, all the best land in Kansas had been
claimed by homesteaders. The land that was available was in the Dakotas and in
Montana. The Dakotas were mostly homesteaded in the 1880s and Montana in the early
twentieth century. If the federal government had been willing to support the start up

38 Id. at 176-77.
39 Id.
40 Id.
41 PAINTER, supra note 24, at 184.
42 Id. at 195.
43 Id. at 206.
44 See supra notes 26-28 and accompanying text.
45 Painter comments, “In the context of the political thinking of the late nineteenth

century, it is not surprising that Congress appropriated no aid to the Exodusters. PAINTER,
supra note 24, at 206.

AKRON LAW REVIEW [Vol. 32:3
costs of Black people who sought to leave the deep South, could they have made a
successful life as homesteaders?

Jonathan Raban’s book, BAD LAND: AN AMERICAN ROMANCE, provides a moving
description of the homesteaders who settled eastern Montana in the early years of the
twentieth century.46 In 1909, in response to heavy lobbying from the railroad industry,
Congress offered 320-acre tracts of land in eastern Montana, to anyone willing to claim
them.47 As Rabin points out, in 1909, maps still identified eastern Montana as the Great
American Desert. In the Dakotas, and even more so in eastern Montana, economic
viability turned on rainfall. From the 1880s to 1913, the weather was kind to the
homesteaders.48 But it then turned harsh. Beginning in 1914, and especially during the
1930’s, rainfall was slight, winters were brutally cold, grasshoppers invaded, hail and
cyclones destroyed crops.49 Some homesteaders survived and succeeded, some failed,
and some moved west.

How would Black farmers have fared in this larger homesteading world? My
ancestors homesteaded in Minnesota in 1881, in North Dakota in 1905 and in Montana
in 1910. I asked my 82 year old mom, who is a serious student of this history, “Why
didn’t any African Americans claim homesteads in the Dakotas?” She answered,
“There was a lot of prejudice against colored people.”50 Jonathan Raban confirms her
perception. He reports that the homesteaders of Eastern Montana in the early 20th
century came from many ethnic and religious backgrounds. Nordic, Irish, English,
and German homesteaders built fences together, against the common enemy, the cow
men.51 People of very different religious belief lived in amicable proximity.52

Raban describes the central roll that local schools played in the homesteading
communities, more important than local churches.53 The federal government was
interested in encouraging the local schools to convey the appropriate message of U.S.
citizenship and promoted approved texts and lesson plans. Randall J. Condon,
Superintendent of the Cincinnati Schools, and general editor of the Atlantic Readers
series, “wrestles bravely with the shaping paradox of American nationalism — that it

46 JONATHAN RABAN, BAD LAND: AN AMERICAN ROMANCE (1996).
47 35 Stat. 639 (1909). This Act also applied to land in Arizo na, Colorado, Nevada, New

Mexico, Oregon, Utah, Washington, and Wyoming.
48 RABAN, supra note 46, at 207, 209.
49 Id. at 208-42.
50 Interview with Alice Ruth Nelson Law, author’s mother (Jan. 22, 1999).
51

RABAN, supra note 46, at 96-146.
52 Id. at 224. Two families, the Wollastons and the Zehms, came to eastern Montana from

the same Minnesota community. The Wollastons were Episcopalian and the Zehms Seventh-
Day Adventists. They shared a boarder and held different values. Id.

53
Id. at 162.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
must be multi cultural, a nationalism of all the nations.”54 While the federally promoted
educational program sought to promote respect and integration among various European
ethnic and religious groups, it ignored race.

The natio nalism of which Condon makes so much fuss in his forward turns out, in
practice, to be a simple pride in America for having gathered so many traditions under
one flag and for incorporating so many beautiful landscapes in one political
geography. Native Americans get a fair shake; black Americans are nowhere to be
found — any acknowledgment of their presence in this generous land would have been
hard to square with Condon’s “great dream” of “racial equality for all the people.”55

The former slaves knew farming, adversity and hard work. They could not settle
Kansas, the Dakotas, Montana or anyplace else without some help, at least in the period
1880-1920. That would have been an affirmative action program, adopted in response
to the recognition that slaves had been denied fair opportunity, on a massive scale. It
would have transformed the culture of the Midwest. It would, I believe, have had a
profound influence on the way we think about race today.

Today, it is very difficult for most white people to hold ourselves responsible for
slavery. It is difficult to see ourselves as “privileged” by the patterns I just described.
Patterns of land ownership in these areas of the country were set by federal policy in
the late nineteenth and early twentieth Centuries. These patterns effectively excluded
Blacks.

2. Financing Mortgages since World War II.

A similar story of white privilege can be told about the financing of residential
housing in this century. since the Great Depression. It is a complex story, wonderfully
told in Kenneth Jackson’s book, THE CRABGRASS FRONTIER.56 In 1933, Congress
created the Home Owners Loan Corporation to help refinance mortgages in danger of

54

Id. at 165. Condon urged that,
Far and near, selections have been sought that would help to deepen a sense of

good will and fellowship and kindly consideration for others by emphasizing the fine
qualities of all mankind. We have endeavored to teach that o ut pledge to the flag,
`one nation indivisible, with liberty and justice for all,’ means a national unity of spirit
that cannot be divided into groups or sects or races — into rich and poor, into weak
and strong, into those who work on farms, in factories , forests, and mines, and those
who do not have to toil — this nation to include all, with liberty of conscious and
conduct for each . . . .

Id. at 165-66.
55 Id. at 166.
56 KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED

STATES (1985).

AKRON LAW REVIEW [Vol. 32:3
foreclosure. 57 The government believed that it needed to protect its investment by
surveying neighborhoods, appraising homes, and developing criteria. The system they
developed assigned neighbors one of four grades: A or green, B, or blue, C, or yellow,
and — the least desirable — D or red. That 1933 policy created the concept of “red
lining” that remains with us today. When the FHA was created in 1934, to indemnify
banks against the risk of default on home mortgages, it relied on the criteria developed
by the HOLC.58

Jackson demonstrates how the criteria systematically disfavor urban areas and
African Americans. Those criteria were applied in the great housing boom in the years
following World War II.59 Even though Blacks served in the war in disproportionately
large numbers, they were disadvantaged in the administration of FHA loans after the
war. Some developers, such as those who created Levittown and other major middle
income housing projects, systematically excluded blacks. But, far more significant, the
federal criteria for the banking community preferred suburban white neighborhoods
over urban or integrated communities.60

For those of us who are white, our parents and grandparents benefitted from this
form of white privilege. As the value of housing has appreciated over the past half
century, we, and our children, are the direct economic beneficiaries of this white
privilege.

Racial discrimination in relation to housing is not solely a matter of inherited history.
Today most informed observers believe that racial discrimination is common in the
contemporary housing market.61 Nonetheless, there is little effort to enforce the anti-
discrimination law.62 In 1999, the U.S. Department of Agriculture agreed to pay $300
million dollars to settle a sixteen year-old law suit in which Black farmers proved that
the department had discriminated against them by denying loans and other subsidies.63
Sadly for many Black farmers, the acknowledgment of discrimination came too late. In
1920, 14 percent of the nation’s farms were owned by Blacks; by 1992, the number
had dwindled to one percent.64

57 Id. at 196-203.
58 Id. at 203-18.
59 Id. at 231-45.
60 Id. at 231-45.
61 Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing

and Employment, 45 UCLA L. REV. 1401, 1408 (1998); Michael H. Schill, Local Enforcement of
Laws Prohibiting Discrimination in Housing: The New York City Human Rights
Commission, 23 FORDHAM URB. L. J. 991, 993-98 (1996).

62 Selmi, 45 UCLA L. REV. at 1406-04; Shill, 23 FORDHAM URB. L. J. at 1019-25.
63 David Firestone, Agriculture Department to Settle Lawsuit by Black Farmers, N.Y.

TIMES, Jan. 5, 1999, at A-1.
64 Kevin Sack, To Vestige of Black Farmers, Bias Settlement is Too Late, N.Y. TIMES, Jan.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION

D. Objections to the Concept of White Privilege.

In discussing this article with decent, anti-racist white men, I have encountered a

lot of resistance to the concept of “white privilege.” First, they object because, as they
struggle to make a decent life for themselves, they do not feel particularly privileged. I
empathize. As I talk with my son, his Ivy League college friends, and my own
students, I appreciate that they confront difficult choices among constricted
opportunities. Life at the turn of the century is difficult, even for affluent, educated,
straight white men. That honest difficulty triggers resistance to a recognition that
whiteness is privileged.

Second, they perceive that the concept of “white privilege” implies a wrong doing
and guilt on their part that they do not believe is justified. As I have suggested, while
white people benefit from white privilege, it is systemic and invisible, and not a matter
of individual wrong doing or guilt. I am not guilty of racism because a cab picks me
up. I do not discriminate when cops don’t stop me for no reason, and then let me talk
them out of a ticket. I am not a racist because my daddy got a good VA mortgage that
parleyed into good housing for the rest of our lives. That is not the point. Like it or
not, we white people do benefit from white privilege. And most of the time we do not
even notice it.

Finally, my sensible anti-racist white friends protest that the real problem is
discrimination against black people, not white privilege. I agree that as a practical
matter, solutions must be found in anti-discrimination law. Nonetheless, understanding
the contemporary reality of white privilege may illuminate our understanding of anti-
discrimination principles.

White privilege is not recognized in our law. Rather the law deals with
“discrimination” and seeks to define wrongs for which the law can provide a legal
remedy. Even if we accept that white privilege is a pervasive yet invisible fact, it is not
clear that it is a wrong for which there should be a legal remedy, or what form that
remedy might take. Rather we must seek remedies in our anti-discrimination law. The
next section demonstrates that our current concepts of discrimination perpetuate, rather
than remedy, white privilege.

II. LIMITS ON CURRENT CONCEPTS OF AN T I-DISCRIMINATION LAW.

A. Intentional Discrimination.

Until the Civil Rights Movement of the 1960s racial discrimination was blatant and
explicit. With the adoption of the Civil Rights Act of 1964, and the Voting Rights Act

6, 1999, at A-1.

AKRON LAW REVIEW [Vol. 32:3
of 1965, that became unacceptable. The Duke Power Company provided an early and
vivid example of how discrimination and segregation could be perpetuated, even after
the law prohibited racial classifications. Until 1964, the company maintained two
categories of laborers, white and Black. The whites were paid more. Other than that,
they did the same work. When the 1965 law prohibited paying white workers more
because they were white, the company created two new categories. The favored group
included incumbents and new applicants with a high school diploma. Few new
applicants had a high school diploma. But those who did were all white. There was no
evidence that a high school diploma was related to the ability to be a first class laborer.
The Supreme Court rejected this effort to utilize job requirements that discriminate in
effect. The Court recognized that the newly-minted academic requirement perpetuated
the second-class treatment of Black workers.65 The Court recognized that neutral rules
— the high school graduation requirement — that have the effect of discriminating
against Black people are presumptively invalid. They can only be defended if the
employer shows that they are actually related to a legitimate purpose.

Sadly, the Court’s commitment to a concept of equality that recognizes that
discriminatory effects matter was short lived. In 1976, Black applicants to the
Washington D.C. police department challenged a standardized test that excluded
virtually all Blacks. There was no evidence that the test measured qualities important to
being a good cop. Indeed, there was a lot of evidence that an overwhelmingly white
police force in a predominately Black city was not functional. Nonetheless, in
Washington v. Davis, the Court approved the standardized test that was discriminatory
in effect. The Court held that the Constitution prohibits racial discrimination only when
it can be proven to be deliberate and intentional.66 In 1979, the Court drove home the
principle that only deliberate, intentional discrimination matters when it held that:

“Discriminatory purpose,” however, implies more than intent as violation or intent as
awareness of consequences. It implies that the decision-maker . . . selected or
reaffirmed a particular course of action at least in part “because of,” not merely “in
spite of” its adverse affect upon an identifiable group.67

Thus, the bottom line is the only racial discrimination that counts in the law is

explicitly articulated, intentional, conscious racism. Our anti-discrimination law itself
embodies a form of white privilege. 68 The only perspective that counts is that of the
white perpetrator. The effects on Black victims are irrelevant. And if, as is often the

65 Griggs v. Duke Power Co., 401 U.S. 424 (1971).
66 Washington v. Davis, 426 U.S. 229 (1976).
67 Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256 (1979).
68 My friend, Dr. Richard Meisler, offered this observation at the Mansfield Lecture,

University of Akron, School of Law, Jan. 28, 1999. Charles Lawrence has made similar
observations. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning
with Unconscious Racism, 39 STAN. L. REV. 317 (1987).

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
case, whites do not notice that the neutral policy privileges whites and disfavors Blacks,
the policies cannot be condemned.

This legal conception of discrimination is myopic. Only conscious intent to
discriminate because of race counts. The anti-discrimination law replicates white
privilege. The only thing that matters is the intent of the white person, not the impact
on the Black.

B. Biased Standards of Merit.

Common standards of merit rely heavily on personal connections, references,
legacies, and family contacts,69 and upon standardized tests.70 All of these measures of
merit are heavily discriminatory. Further, there is little systemic effort to enforce the
anti-discrimination laws, even in areas like taxis, law enforcement, and housing, in
which we know that discrimination against Black people is common. In this
environment — with narrow concepts of discrimination that look only to explicit
discriminatory intent, standards of “merit” that systematically favor white people, and
failure to enforce laws against intentional discrimination — affirmative action carries all
the weight of promoting integration and diversity.

C. Affirmative Action.

Affirmative action should not need to carry all this weight. Affirmative action is a
troubling, third-best solution to the deep problems generated by our history of slavery
and racial discrimination. A far wiser approach would recognize that white privilege is
pervasive and all too often invisible. It would pay attention to effects. If the effects of
a policy, pattern, or practice hurt Black people, the law should ask, “Is there any good
justification or reason for this policy, pattern, or practice?” Transforming our law to
recognize discriminatory effects as a form of discrimination would require either a
Constitutional amendment or overruling of decades of precedent. These moves are not
on the political radar screen.

If the culture and law persist in denying the existence of white privilege and the
relevance of discriminatory effects, then the third best solution — affirmative action —
remains vitally important. Affirmative action programs are pervasive in the United
States today. Business supports them. Traditional hiring methods — the old boy
network and standardized tests produce a workforce that is overwhelmingly white and
male. Traditional criteria do not do a good job of predicting ability to perform.
Employers find that tests screen out a substantial portion of the talent pool, depriving
them of skills and strengths they need to succeed. Further, a workforce that is

69 HENRY J. HOLZER, WHAT EMPLOYERS WANT: JOB PROSPECTS FOR LESS-EDUCATED

WORKERS 127 (1996).
70 See infra note 91 and accompanying text.

AKRON LAW REVIEW [Vol. 32:3
overwhelmingly white and male is not able to operate effectively in a diverse nation and
global economy. For similar reasons, affirmative action is also common in education.

Affirmative race-conscious programs have always been allowed when they are used
to remedy the continued effects of past discrimination. Indeed, when you have a
situation of proven intentional discrimination, affirmative action is constitutionally
required to remedy it. Under this principle, the school systems of most of the South
and much of the North were under judicial order to implement affirmative action
programs through the 1970s and 1980s.

In addition, in 1978 the late Justice Lewis Powell, in his opinion in the Supreme
Court’s famous Bakke decision, ruled that racial preferences are also permissible if
their purpose is to improve racial diversity among students, and if they do not stipulate
fixed minority quotas, but take race into account as one factor among many.

Today, it is not clear that the Court will continue to support Bakke’s limited
authorization for race conscious affirmative action programs. In the past twenty years
the Court has found many affirmative action programs unconstitutional. Indeed, since
1990, the Court has not approved a single race conscious affirmative action program.
In 1996, the Fifth Circuit Court of Appeals struck down the affirmative action program
of the University of Texas. Two of the three judges said that the Supreme Court has
already effectively overruled Bak ke, and that any consideration of race in school
admission is unconstitutional. 71 Also in 1996, the voters of California approved
Proposition 209, which provides that no state institution may “discriminate against, or
grant preferential treatment to, any individual or group on the basis of race, sex, color,
ethnicity or national origin the operation of public employment, public education, or
public contracting.”72 Most recently, in November 1998, the First Circuit Court of
Appeals held that Boston Latin’s affirmative action program violated the constitution.
Like the University of Texas, Boston Latin, an elite public high school, was traditionally
limited to white males. Unlike the Fifth Circuit, the First Circuit refused to declare that
Bakke was dead. Rather, the court held that the affirmative action program utilized at
Boston Latin did not meet Bakke’s exacting standards.73

The Fifth Circuit’s decision in Hopwood had immediate and, in the view of the
Texas Law School’s faculty, disastrous results. UT, which had been officially limited
to white students until 1950 when they were ordered to admit Blacks,74 had admitted

71 Hopwood v. State of Texas, 78 F.3rd 932, reh’g en banc denied, 84 F.3d 720 (5th Cir.

1996), cert. denied, 116 S. Ct. 2581 (1996).
72 A federal judge in San Francisco stayed the enforcement of Proposition 209, but t he

Ninth Circuit Court of Appeals removed the stay, the Supreme Court refused to consider an
appeal from that decision, and the Proposition is now in force.

73 Wessmann v. Gittens, 160 F.3d 790, 800 (1st Cir. 1998).
74 See Sweatt v. Painter, 339 U.S. 629 (1950).

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
31 Black students in 1996. In 1997, only four Black students were enrolled.
Proposition 209 has had a similarly devastating impact on California schools. Boalt Hall
Law School at Berkeley, the state’s premier public law school, had enrolled an average
of 24 Black students each year for the last 28 years. In 1997 it enrolled only one, and
he had been admitted the previous year but had deferred entering.75

A strictly race-neutral policy of admission to undergraduate schools would reduce
the numbers of blacks admitted by 50 to 75 percent.76 Eliminating affirmative action
would have a particularly stark impact on the legal and medical professions. Under
race-blind policies, Blacks would make up only 1.6 to 3.4 percent of the students
accepted to the 173 law schools approved by the ABA. 77 Eliminating affirmative action
from medical education would reduce Black enrollment by 90 percent.78

III. IS AFFIRMATIVE ACTION EFFECTIVE AND FAIR?

The question whether educational institutions should be allowed to take race into

account and pursue policies that seek racial diversity raises two important issues. First,
as a practical matter, do affirmative action programs actually benefit those who are
directly helped and society as a whole? And second, is affirmative action fair as a
matter of principle?

A. Is Affirmative Action Effective?

Much of the recent criticism of affirmative action asserts that it has been
counterproductive in every way. People such as Stephan and Abigail Thernstrom, and
Shelby Steele 79 claim that it has “sacrificed” rather than helped the Blacks admitted to
the programs, perpetuating a sense of black inferiority among both whites and blacks
themselves, and promoting black separatism and a race-conscious society rather than
integration and a genuinely color-blind community.

We are blessed with a massive new study that addresses these questions. THE
SHAPE OF THE RIVER, by William G. Bowen, former President of Princeton University

75 John E. Morris, Boalt Hall’s Affirmative Action Dilemma , AMERICAN LAWYER, Nov.

1997, at 4.
76 WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES

OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 351 (1998).
77 Id. at 44.
78 See What if There Was no Affirmative Action in Medical School Admissions, 19 J. OF

BLACKS IN HIGHER EDUC. 11 (1998).
79 STEPHEN & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION,

INDIVISIBLE (1997); SHELBY STEELE, A Negative Vote on Affirmative Action, in DEBATING
AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION (Nicholas
Mills ed., 1994).

AKRON LAW REVIEW [Vol. 32:3
and Derek Bok, former President of Harvard University, is the largest study of
affirmative action ever undertaken.80 Bowen and Bok are highly respected, mainstream
scholars. They did a sophisticated examination of the largest data base ever examined
about affirmative action. It contains extensive information about more than eighty
thousand undergraduates who matriculated at 28 selective colleges in 1951, 1976, and
1989.81 Here are some of the main findings.

First, the Blacks admitted under these programs are highly qualified. Indeed, the
average SAT scores of black entrants to the most selective schools in 1989 was higher
than the average of all matriculates in the same institutions in 1951. The authors
suggest that “middle-age and elderly graduates should reflect on this fact before
insisting that Blacks accepted through affirmative action programs are unfit for their
universities.”82

Second, most Blacks admitted to these elite schools — 75% of the 1989 cohort —
graduate within six years. That is not as high as the proportion of white students who
graduate from these schools — 86% of the 1989 cohort. By contrast, only 59% of
white students graduate from the 301 less elite schools that belong to Division I of the
NCAA. 83

Third, most whites and the overwhelming majority of Blacks expressed the view that
having an experience of working with people of other races was an important part of
their college experience. Those numbers rose steadily, particularly among whites, over
the years.84

Fourth, the overwhelming majority of Blacks surveyed applaud race-sensitive
policies, believe that Universities should expand them, and think that it has been good
for them, not demeaning to them.85

Finally, the study finds that the affirmative action graduates “consistently provid[e]
more civic leadership than its white peers. [This] indicates that social commitment and
community concerns have not been thrown aside at the first sign of personal success.”
Black physicians, for example, are twice as likely as their white counterparts to provide
primary care services and to serve minority populations.86 Nonetheless, even with

80 BOWEN & BOK, supra note 76, at xxvii.
81 BOWEN & BOK, supra note 76, at xxvii-xviii.
82 Ronald Dworkin, Affirming Affirmative Action, N.Y. REV. OF BOOKS 91, 94 (Oct. 22,

1998); Is Affirmative Action Doomed, N.Y. REV. OF BOOKS 56 (Nov. 5, 1998).
83 BOWEN & BOK, supra note 76, at 57.
84 Id. at 225.
85 Id. at 265.
86 Currents of Health Policy: Impacts on Black Americans, 65 MILBANK Q., Supp. 1 & 2

(1987). The prestigious New England Journal of Medicine reports that Blacks and women

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
affirmative action, in 1985 there were only 53.7 Black physicians per 100,000 black
people compared to 218.5 total physicians per 100,000 total U.S. population.87
Eliminating Black medical students will have a devastating impact on black people
already disadvantaged in obtaining medical care.88 Given the influential role that lawyers
play in every branch of state and federal government, as well as in the lives of people
with legal claims, it is disturbing to contemplate a legal profession that effectively
excludes all but a handful of Black people.

B. Is Affirmative Action Fair?

Two common arguments assert that affirmative action is unfair. First, it is claimed
that, as a matter of principle, the Constitution demands that public policy be color-
blind. The claim cannot be defended as a matter of historical understanding. The
Framers of the Fourteenth Amendment and the Reconstruction Congress created the
massive Freedman’s Bureau program targeted to help the former slaves achieve
economic and civil opportunity. They understood that race-conscious affirmative
action is essential to overcome entrenched patterns disfavoring blacks. Further, and
more generally, much scholarship suggests that the central purpose of the Fourteenth
Amendment was not to mandate a color blindness principle of anti-discrimination, but
rather to enact a principle prohibiting the subordination and subjugation of vulnerable
groups.89

Reasonable anti-racist people disagree about whether color blindness should be our
ultimate goal. Dr. King and the Civil Rights Movement often articulated a goal that said
black or white, man or woman, should not matter. We are all just people. I find that
integrationist vision powerful and attractive. At the same time, I think we can all
appreciate a value to preserving the special cultures, traditions and voices of people of
different groups defined by ethnicity. Whatever the ultimate goal, certainly we have not
yet achieved color blindness. To pretend that we have defines whiteness as the norm.
As Justice Blackmun noted, “In order to get beyond racism, we must first take account
of race.”90

with identical presenting complaints are significantly less likely to be referred for potentially
life saving cardiac catheterization or coronary -artery bypass graft surgery than are white men.
Kevin A. Schulman, et al., The Effect of Race and Sex on Physicians’ Recommendations for
Cardiac Catheterization, 340 N. ENG. J. MED. 618 (1999).

87 Ruth Hanft & C. White, Constraining the Supply of Physicians: Effects on Black
Physicians, 65 MILBANK Q. 249-250 (1987).

88 Even when we control for class, source of payment and clinical condition, Blacks
receive significantly less medical care than their white counterparts. Kenneth C. Goldberg et
al., Racial and Community Factors Influencing Coronary Artery Bypass Graft Surgery
Rates for All 1986 Medicare Patients, 267 JAMA 1473, 1473-74 (1992).

89 Lawrence, supra note 68, at 354-55.
90 See Regents of the Univ. of California v. Bakke, 438 U.S. 265, 407 (1978) (Blackmun, J.,

AKRON LAW REVIEW [Vol. 32:3

The second, and much more popular objection to affirmative action is that it is unfair
to individual white people to allocate valuable opportunities on the basis of anything
other than “merit.” Evaluation of this claim requires us to examine the criteria that
define merit. Schools increasingly rely on standardized tests. Those who write these
tests caution us that their value is extremely limited.91 Standardized tests measure two
things: the ability to take other standardized tests and economic class. We all recognize
that they do not tell us whether a person would be a good lawyer. They do not tell us
whether a person will answer clients calls, work hard, listen well, and act morally.

Standardized tests have become more important in recent years for reasons unrelated

to merit or affirmative action. Lots of organizations evaluate schools and make
information available to perspective students and employers. The U.S. News and World
Report ranking of law schools is one of the most influential. Many deans, including
mine, have condemned this listing as superficial and misleading.92 At the same time,
almost everyone in legal education is concerned about where our school stands on this
list. Students’ standardized test scores carry heavy weight on this list.

Standardized tests are not the only criteria for admission to higher education. In
most schools, the children of alums, or of major donors get preferential treatment. At
Harvard, despite affirmative action, more white students gain entry as “legacy admits”
than do the total number of Black, Hispanic, and American Indian students.93 Most
schools seek a geographic diversity. Many schools favor people who came from an
economically challenged background. At the college level, preferences for skilled
athletes are pervasive. Prohibiting race-based affirmative action singles out race and
says you can seek diversity with respect to any factor, except race.

Legal challenges to affirmative action are organized and financed by large, well-
funded organizations, led by the Washington based Center for Individual Rights.94
Their individual plaintiffs and poster children are white applicants who had standardized
test scores slightly better than some of the minority students who gained admission.
Their claims that they have been treated unfairly have powerful appeal.

But, on closer examination, the claims of individual unfairness become ess

concurring).

91 Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical
Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission
Decisions, 72 N.Y.U. L. REV.1, 30-31 (1997).

92 See Jan Hoffman, Judge Not, Law Schools Demand of a Magazine That Ranks Them,
N.Y. TIMES, Feb. 19, 1998, at A1.

93 John D. Lamb, The Real Affirmative Action Babies: Legacy Preferences at Harvard and
Yale, 26 COLUM J. L. AND SOC. PROBS. 491, 504 (1993).

94 DWORKIN, supra note 82, at 56.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
compelling. Bowen and Bok’s study reveals that if affirmative action were eliminated,
the numbers of Black students would plummet. But the probability that any individual
rejected white applicant would have been admitted would have risen only from about 25
percent to about 26.5 percent, because there were so many rejected white candidates at
approximately the same level of test scores.95 Except for the best testers, admission to
college or law school involves a large element of chance. 96 UC Berkeley receives
applications from people with “perfect scores” — SATs and GPAs — that would fill
each first year class several times over.97 Even if admission officers confine
themselves to the “perfect people,” choices must be made. The plaintiffs in Hopwood
focused on the Black students who had been admitted with lower numbers. But a third
of the white members of the admitted class also had numbers lower than the Hopwood
plaintiffs. After the Hopwood plaintiffs won their victory of principle, they were denied
admission to the law school because their numbers were no better than thousands of
other rejected applicants.98

The fairness of admission practices to educational opportunities and employment
opportunities raise profound questions. Personal and professional connections always
weigh heavy. It is difficult to see this as wrong. We all trust the judgments of people
we know and expect others to respect our judgments about people who we know well.
I give a lot more weight to the endorsement of a discerning colleague who has real
work experience with a person than I do to a standardized test score. But Black people
have less access to this old boys, and increasingly old girls, network than white people.

C. Is the Bakke Standard Adequate?

In closing, I would like to say a few words about the Bakke standard and the First
Circuit’s recent decision in the Boston Latin case. In Hopwood, the Fifth Circuit held
that Bakke had implicitly been overruled by subsequent Supreme Court decisions. Race
cannot be taken into account in any way, shape or form. The First Circuit held that
Bakke is still good law, but that the Boston Latin program did not meet the Bakke
standard. 99

95 BOWEN AND BOK, supra note 76, at 33.
96 Interview with student at Mansfield Lecture (Jan. 28, 1999). The student pointed out a

similar phenomena in relation to handicapped parking spaces. He observed that when the
parking lot is full, people without handicapped plates will often fulminate when they see an
empty handicapped slot. I will confess that I have often thought, “They have designated too
many of those places. That could be my parking place.” But, the student pointed out, if it
were not designated for handicapped parking, my shot at getting the place would be
probabilistic, and slim.

97 See Michael A. Olivas, Constitutional Criteria: The Social Science and Common Law
of Admissions Decision in Higher Education, 68 U. COLO. L. REV. 1065, 1119-1120 (1997).

98 See Hopwood v. Texas, 999 F. Supp. 872, 896-97 (W.D. Tex. 1998).
99 Wessmann v. Gittens, 160 F.3d 790, 800 (1st Cir. 1998).

AKRON LAW REVIEW [Vol. 32:3

Bakke, you will recall, ruled that racial preferences are permissible if their purpose is
to improve racial diversity among students, and if they do not stipulate fixed minority
quotas, but take race into account as one factor among many. Justice Powell relied on
a Harvard model under which each applicant file is read and a wide variety of factors
are considered to determine who should be admitted.100

Here is a brief description of the Boston Latin program. In 1975, the federal courts
found that prestigious Boston Latin High School had a history of intentional race
discrimination. To remedy this situation, the court ordered that “at least 35% of each
of the entering classes . . . shall be comprised of Black and Hispanic students.”101 That
injunction lasted until 1987, when the court allowed the school board freedom to
construct its own admissions criteria. The school board continued the quota for a
number of years. Then, in 1996, a white student successfully challenged the flat
quota, 102 and the school board adopted a new admissions program.

The 1996 program, challenged in Wessmann, works like this. All applicants are
ranked by standardized test scores and GPAs. Applicants are divided into three
groups. The group with the highest scores fill half the available class room places.
They are selected strictly on the numbers. At the other end of the spectrum, about half
the applicants are rejected, again solely on the basis of the numbers. The policy

100 See Bakke, 438 U.S. at 316-318. Harvard’s amicus curiae brief states :

In practice, this new definition of diversity has meant that race has been a factor
in some admissions decisions. When the committee on Admissions reviews the large
middle group of applicants who are ‘admissible’ and deemed capable of doing good
work in their courses, the race of an applicant may tip the balance in his favor just as
geographic origin or a life spent on a farm may tip the balance in other candidates’
cases. A farm boy from Idaho can bring something to Harvard college that a
Bostonian cannot offer. Similarly, a black student can usually bring something that a
white person cannot offer.

Id. at 316.
Commenting on this, Justice Powell wrote:

This kind of program treats each applicant as an individual in the admissions
process. The applicant who loses out on the last available seat to another candidate
receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed
from all consideration for that seat simply because he was not the right color or had
the wrong surname. It would mean only that his combined qualifications, which may
have included similar nonobjective factors, did not outweigh those of the other
applicant. His qualifications would have been weighed fairly and competitively, and
he would have no basis to compla in of unequal treatment under the Fourteenth
Amendment.

Id. at 318.
101 Wessman, 160 F.3d at 792.
102 Id. at 792-93.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION
challenged applies to the group in the middle, i.e. those who have numbers high enough
that they can be expected to do good work, but not the very highest. The classroom
places are allocated to this middle group on the basis of the proportion of various ethnic
groups in the community as a whole. 28% of those admitted from in this middle group
were Black. But 42% were white. Sarah Wessman was in that middle group. She
complained that some of the Black students admitted had numbers slightly lower than
her’s. The First Circuit held that this program, that takes race into account through the
use of numerical quotas does not meet the Bakke standard, even though it applies to
only a limited portion of the pool of qualified applicants, and even though it benefits
whites as well as blacks.

Most informed observers believe that the most the civil rights community can hope
for in relation to affirmative action is a reaffirmation of Bakke, and even that is unlikely.
But the Boston Latin case underscores a deeper problem. Rich schools and small
schools can follow the genteel model that Justice Power approves, giving full
consideration to every applicant and making nuanced judgments. Similarly, we can do
and indeed always do that in relation to faculty hiring. But a school that is big or poor is
under much more pressure to use numbers as a short hand for merit. In practical
effect, strict enforcement of Bakke may mean that small and elite schools can enjoy the
benefits of diversity, but others cannot. That is disturbing.

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Katrina’s Political Roots and Divisions: Race, Class, and Federalism in
American Politics
By Dara Strolovitch; Dorian Warren; Paul Frymer
Published on: Jun 11, 2006

Dara Strolovitch is assistant professor of political science at the University of Minnesota. She has been a research fellow at
the Brookings Institution and a visiting faculty fellow at Georgetown’s Center for Democracy and the Third Sector. Her
research and teaching focus on interest groups and social movements, and politics of race, class, gender, and sexuality.

Dorian Warren is a post-doctoral scholar at the University of Chicago’s Harris School of Public Policy. He specializes in the
study of inequality and the politics of marginalized groups in American politics.

Paul Frymer is associate professor of politics and legal studies at UC Santa Cruz. He is the author of Uneasy Alliances: Race
and Party Competition in America (Princeton Press) and is currently writing about race and labor in the twentieth century.

In the public imagination, natural disasters do not discriminate, but are instead “equal opportunity”
calamities. Hurricanes may not single out victims by their race, class, or gender, but neither do such
disasters occur in historical, political, social, or economic vacuums. Instead, the consequences of such
catastrophes replicate and exacerbate the effects of extant inequalities, and often bring into stark relief
the importance of political institutions, processes, ideologies, and norms. In the words of New York
Times’ columnist David Brooks, storms like hurricane Katrina “wash away the surface of society, the
settled way things have been done. They expose the underlying power structures, the injustices, the
patterns of corruption and the unacknowledged inequalities.”

Katrina hit the Gulf Coast just as America prepared to mark the fourth anniversary of the 9/11 attacks,
and consequently, the fourth anniversary of the American government’s quest to bring American-style
freedom and democracy to other nations. The hurricane made clear, however, that the U.S. has not
resolved fundamental domestic disparities and inadequacies. Katrina did not create these inequities; it
simply added an important reminder that they are deeply embedded and constitutive of American
political, economic, and social life. From the voting rights violations of 2000, to the vast disparities in
drug laws that have resulted in the imprisonment of hundreds of thousands of young African-American
and Latino men, to the continued widening of racial and wealth gaps when it comes to finances,
education, and health services, the last two decades alone have provided a series of examples that
demonstrate the vast inequalities of our democratic system, particularly as they are manifested along
racial lines. Were Katrina simply an accident of geography and ecology, we could perhaps be sanguine
that its effects might be resolved. But the disparities exposed by Katrina have deep-seated, historical and
institutional roots. While it is therefore unlikely that public policies in the aftermath of Katrina will
resolve these disparities, perhaps the inequalities laid bare by the hurricane will provide a longer-term

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The Political Roots of Race and Class Inequality in New Orleans

wake-up call to those who wish to actively build a more fair and meaningful democracy in the United
States. In particular, we hope that new attention will be paid to the role of American political
institutions in structuring and perpetuating contemporary racial, economic, regional, and gendered
inequities.

Storms and natural disasters such as Katrina always hit marginal groups in society harder than they do
other segments. Women, many of whom were primary caregivers for their children, were vastly over-
represented among those in New Orleans’ shelters, reflecting not only the gendered norms of family
relations, but the glaring statistical fact that women in America are more likely to live below the poverty
line. Similarly, the elderly and disabled faced some of the most severe horrors of Katrina, again in part
because they constitute a disproportionately high percentage of those who are impoverished, and
because too many were simply left to die in the face of rushing water due to the difficulties in rescuing
them. It was the compounded effects of the intersection of race and class inequalities, however, that was
brought most visibly to the fore by the national and international media in the days following Katrina.
Quite notably, President Bush, who had first resisted acknowledging the disproportionate impact of
Katrina on low-income and black residents of New Orleans, finally felt compelled to recognize “the
legacy of inequality.” The evidence of the centrality of racial and class inequalities is overwhelming, as
evidenced by Kanye West’s impassioned comments on television as well as by the fact that the topic
became one of discussion in such unlikely outlets as FOX news and the Rush Limbaugh show. By now,
we have all heard the damning statistics about the demographics of New Orleans residents so devastated
by Katrina: 67% are African American, 28% live below the poverty line (of whom 84% are black),
100,000 had no car, and therefore had no ability to flee the city when the storm hit.

Although jarring, these statistics can only be shocking to those who have willingly ignored systematic
evidence of what former Senator and vice presidential candidate John Edwards topically called the “two
Americas.” Edwards may not have specifically mentioned race during his popular campaign stump
speech, but social scientists and political activists have long tried to draw the nation’s attention to the
scope of racialized (and gendered) poverty in the United States, particularly in the South. It is no
accident that African Americans in New Orleans are disproportionately poor, or that a disproportionate
number of the poor in New Orleans are African American. It is the result of centuries of concerted
decision-making by political actors at the local, state, and national levels, going back to the days of
slavery and continuing up to our current political moment.1 Highlighting the roles of race and class in
attitudes about and identities of those most affected by the aftermath of Katrina draws attention to the
ways in which these divisions have played an historically significant role in conflicts about the proper
relationship between local, state, and federal governments in American politics. Though many in the
media focused on the failed political response in the immediate aftermath or Katrina, little attention was
given to the long-term effects of weakened government capacity and its core functions in providing aid,
services, and jobs to impoverished urban communities, as well as the historical role of race as a causal
factor that has shaped these intergovernmental relations.

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Race has always been central to debates about the proper role of the American government in aiding
those Americans in need of assistance from the inequalities that result directly from the actions of both
the government and private citizens. Whether the national government should have the capacity to
intervene into local affairs was an issue of primary importance at the nation’s naissance. At the time,
race and labor—specifically debates about the slave trade, about the maintenance and expansion of
slavery into American territories, and about the status of blacks more generally—were the sine qua non
of the conflicts between federalists and anti-federalists at the founding of the nation. Southern political
elites argued that the federal government should have no authority over the governance of local
institutions and culture; these arguments were constitutionally protected in the 10th Amendment.
Pointing to the guarantee of “states’ rights,” southern states resisted all attempts to abolish slavery,
resulting in the secession of eleven states—including Louisiana—from the nation in 1860.

The Civil War prompted by this secession did not end race-inspired conflicts over federalism. Following
the defeat of Confederate forces, the national government used its power to expand rights and resources
for blacks primarily through the Freedmen’s Bureau. Its task was to coordinate relief efforts and
redistribute educational, employment and political opportunities among newly freed and homeless
former slaves, as well as to whites who had been dislocated by the war. With the help of the Freedmen’s
Bureau and the protection of federal troops, African Americans acquired land, sought employment,
voted in large numbers, served as elected officials, and used public accommodations in the years
following the war. Most southern whites resented the federal presence and resisted efforts to equalize
the status of former slaves. President Andrew Johnson vetoed congressional renewal of the Bureau in
1866, and undercut its efforts by restoring most land to its former white owners. As the ex-Confederate
states rejoined the Union, Congress further curtailed the agency’s power and personnel, and it finally
ceased operations in 1872. Five years later, the Hayes-Tilden compromise led to the withdrawal of
federal troops, effectively ending all Reconstruction efforts in the South, sealing the fate of the vast
majority of African Americans for generations and ushering in a new era of racial and class inequality.
Southern states, with little federal resistance, enacted “Jim Crow” laws that segregated public spaces,
curtailed voting rights, and reestablished white political, economic, and social supremacy.

But debates over federalism returned during the Great Depression, leading both to an emboldened
national government with power to interfere on matters of interstate commerce to mold social policy,
and at the same time, a recognition that states’ rights would limit the New Deal’s intervention into the
southern economy and political hierarchy. These political battles, in which the federal government won
certain powers with an explicit compromise that it would not threaten southern institutions, set America
on a path-dependent course towards a vastly curtailed welfare state and one that differentiated on the
basis of race. To obtain the necessary support of southern Democrats in Congress for his legislative
agenda, President Franklin D. Roosevelt and northern Democrats agreed to a series of measures that
codified racial inequities into policy. Critical legislation such as the Wagner Act and Social Security Act
did not cover workers in occupations commonly filled by blacks, such as agricultural and domestic
workers, and enabled private and local actors to discriminate in their enactments and interpretations of
the policies. Approximately two thirds of black workers were not initially covered by critical pieces of

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New Deal legislation, at a time when 50 percent of blacks were unemployed, a proportion twice that of
whites. Consequently, while black Americans benefited in some ways from the New Deal, the policies
were severely limited in reach and, in many instances, served to systematically create racial segregation
and poverty in communities such as New Orleans. Labor laws and construction grants allowed unions to
exclude black workers through closed shops and contracts, the Federal Housing Act allowed banks and
home lenders to “redline” their home and business loan policies to exclude black communities, and
federal welfare laws allowed local governments to make determinations of need and assistance.

Southern states continued to resist federal efforts to combat segregation, discrimination, and the
increasing use of terror against blacks in the South well into the 1960s. Faced with civil rights activism, a
series of Supreme Court decisions, and critical new federal laws, conditions improved for blacks in the
“new south.” But, as Philip Klinkner and Rogers Smith have argued, this moment was brief—the
“unsteady march” toward racial equality quickly moved backward. Beginning with President Richard
Nixon, the ambitious plan of the Great Society to use federal funds to combat poverty and racial
inequality was curtailed. The Supreme Court retracted from its ambitious Equal Protection agenda,
instead privileging state and local boundaries that limited policies designed to reduce racial segregation
and inequality in employment, schools, and criminal justice. This was often a bipartisan effort,
witnessed by President Bill Clinton’s signing of welfare reform that cut federal funding sharply to those
in need of assistance. The legacies of racial and economic inequality, from slavery and segregation to the
exclusionary nature of federal aid, remain evident in every Southern state. Racial disparities in
Louisiana and New Orleans are certainly more extreme than they are in other states, but racial
inequality prevails in the former Confederacy, in no small part because of the ongoing invocation of
states’ rights to justify unequal treatment and to resist federal attempts to intervene.

It is important to recognize, however, that while states’ rights arguments have been used historically to
undergird southern racial and class inequalities, they have been invoked inconsistently. Like most
political ideologies in American politics, states’ rights is much less a fundamental and enduring
principle than a political foil that has been deployed opportunistically by political elites to advance their
interests and agenda. Southern conservatives have often invoked states’ rights to resist federal
intervention, but they have also been quick to disregard this principle when it has suited their needs, as
they did earlier this year when asking Congress to overrule a state court that allowed the removal of
Terri Schiavo’s feeding tube. Such inconsistency has historical roots that make clear that southern
invocations of the 10th Amendment have more to do with protecting their power than they do with
concerns about states’ rights. While many southern states endorsed the 10th Amendment during
constitutional debates, they also supported the Commerce Clause and the Full Faith and Credit
provisions of the Constitution—both strongly anti-state rights—in order to stop northern states from
taxing their products that were made with slave labor, and as a way of legally demanding the return of
slaves who escaped to northern free states.

Federalism then, may be a center of the debate, but it provides a smoke screen more than a concrete
barrier to political reform. The reason federalism debates are so powerful is because our national

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American (Lack of) Recognition of History and Structural Inequality

political institutions are fundamentally divided over race, a division that is as old as the nation itself. To
maintain racial hierarchies, southern Democrats and racial conservatives consistently invoke states
rights when it suits them. These interests, while a minority in American society, have always been
important pivots and veto players in the national political arena. Because our political institutions, such
as the Senate, the Electoral College, and the party system, are unduly beholden to these pivotal votes,
federal distinctions remain politically meaningful at a time when many scholars have argued that they
are antiquated and artificial. It is for this reason that even those political actors who support the
expansion of racial and economic justice have had to make political calculations that work against such
goals. This is perhaps most notable in the way that the two party system has been affected by the pivotal
role of the South. With brief exceptions, the two major political parties have been equal opportunity
ignorers of racial inequality going back to their formation in the 1820s. To win elections, parties need to
appeal to southern whites and racially conservative voters. Democrats as much as Republicans are
vividly aware of this, as the actions of national candidates from Bill Clinton to Al Gore to John Kerry
have emphatically illustrated. The poor in New Orleans only entered our television screens with Katrina,
in part because no major party presidential nominee has made race or poverty a campaign issue in
almost four decades.

Fifty years after Louis Hartz remarked that Americans were “born equal” and that, as a result, they have
no sense or interest in history or the broader development of ideas and inequities, it is not surprising
that the American response to New Orleans was viewed through an exceedingly narrow lens. Most
Americans were shocked by New Orleans and our media reflected this with pictures of the faces of
inequality capped with headings ending with question marks—How did this happen? Where did this
inequality come from? Who is to blame? The sense of wonderment is held only by some segments of the
American population, however. As is the case with many other issues, race has been the critical variable
in determining Americans’ perceptions and attitudes about Katrina’s aftermath, and about the way it
was handled by the government.

The American public is sharply divided along racial lines in its assessments of George Bush’s efforts to
help Katrina’s victims. Data from a recent poll by the Pew Research Center show that many more
African Americans (85%) than whites (63%) believe that President Bush did not do “all he could to get
relief efforts going quickly.” Moreover, race also has also shaped perceptions about why the response
was as slow and inadequate as it was. The poll results suggest that a vast majority of African Americans,
but very few whites, agree with hip-hop artist Kanye West’s charge that “George Bush doesn’t care about
black people,” and that America is set up “to help the poor, the black people, the less well-off as slow as
possible.” Echoing West’s sentiments, the Pew poll found that two-thirds of blacks (66%) agreed that the
government response to the hurricane would have been faster if “most of the victims had been white,”
compared to less than one-fifth (17 percent) of whites.2

The disjuncture between white and black attitudes on this question is illuminating not only for the

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wideness of the racial gap in responses, but also because the responses tell us about each group’s
understanding of the way in which race and racism structured individuals’ experiences of and the
government’s response to the hurricane. For white respondents, the question seemed to ask whether
overt racism had led the government to intentionally ignore black residents of New Orleans, leaving
them to suffer on purpose. This understanding is captured in First Lady Laura Bush’s denunciation of
West’s allegations as “disgusting,” and her statement that “President Bush cares about everyone in our
country.” Within this line of reasoning, unless President Bush, Michael Brown, and the Louisiana
National Guard had made explicit decisions to avoid helping or rescuing black victims of the hurricane,
no racial discrimination would have occurred.

For black respondents, however, the question was much broader, and far more subtle. Though not
disconnected from concerns about negative feelings about black people, intentional acts of
discrimination by individuals and government agencies and from the facts of the hurricane itself, black
responses are embedded within an understanding of what social theorists call structural racism. From
this perspective, the racialized impact of Katrina, though clearly more severe than anything in recent
memory, was nothing new but was instead yet another chapter in a long history in which the needs of
blacks have been ignored, and in which seemingly race-neutral policies have actually been very
specifically designed to disadvantage them, whether through provisions that excluded black workers
from social welfare protections or the use of “redlining” and other techniques that served to exclude
black Americans from government subsidies. Had anyone really been concerned about African
Americans and other poor residents of New Orleans, they would have anticipated the fact that many did
not own cars and would have arranged for transportation to help them leave the city as the storm
approached. (Although it should be noted that public officials have ignored just about every warning by
scientists, academics, and journalists of the impending disaster in New Orleans. Just last year, Mike
Davis forecasted exactly this chain of events in an article in Mother Jones magazine and his broader
books on ecological disasters, blaming directly government officials who have promoted harmful
policies for short-term benefit. A similarly prescient article appeared on the front page of the New
Orleans Times-Picayune only 3 years ago.) Instead, the plight of these residents was not even on the
President’s radar screen. Low-income and poor people always suffer more when disaster hits. Eric
Klinenberg’s recent book on the Chicago heat wave of 1995 shows the myriad ways in which African
Americans suffered most extensively from the record temperatures because of worse housing
conditions, less access to medical facilities, less attention by police, fire, and paramedics, and less urban
infrastructure designed to handle such emergencies. As the old axiom goes, “when America sneezes,
black people get pneumonia.”

In this sense, the experience of African Americans in New Orleans can serve as the “miner’s canary,” as
Lani Guinier and Gerald Torres argue. Similar to the way in which canaries alerted miners to the specter
of poisonous air, the fates that befall people who are disadvantaged by inequalities based on, for
example, race, class, and gender, are signifiers of society-wide inequalities. If policymakers and the
public heed the lessons of Katrina and make efforts to address the structural and institutional sources of
American inequality, perhaps the brunt of future disasters will not be borne by those who are the least

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Endnotes

able to endure their costs.

1 While these decisions have had disproportionate effects on African Americans in the southern states,
the exploitation of racial animosity also undermined the possibility of a comprehensive safety net that
would have benefited white poor and working-class southerners as well.

2 In addition to structuring responses, the immediate widespread reports by the media of gang violence,
mass rapes, and looting hearken back to similar tall tales about African American mayhem in the
aftermath of the civil war, the Chicago Fire, and the River Rouge Strike. Barbara Bush’s callousness
towards those suffering in relief centers similarly stems from embedded stereotypes of African American
cultural deficiencies when it comes to work ethic and responsibility.

Race and the Fourth Amendment
Devon W. Carbado*

This chapter employs “real life” scenarios to highlight how Fourth
Amendment law works on the ground. Few people, including
lawyers, journalists, legislators, educators, and community
organizers, understand the enormously important role Fourth
Amendment law plays in enabling the very thing it ought to
prevent: racial profiling and police violence. This chapter does not
tell the full story of Fourth Amendment law along the preceding
lines. Rather, my purpose here is to zone in on the specific body
of Fourth Amendment law that determines whether the Fourth
Amendment will even apply to the police conduct in question or
whether that conduct will escape Fourth Amendment scrutiny
altogether. I have two hopes for the chapter. One is that, whatever
your views about policing, you will leave the chapter feeling
like you have had a “teachable moment” about the range of
investigation tactics police officers can employ without triggering
the Fourth Amendment. My second hope is that you will employ
the chapter as a tool to educate others in the conduct of the work
you do, whether that work takes the form of “street law” sessions,
public forums, know-your-rights campaigns, legislative decision-
making, media education projects, community organizing, op-
eds, classroom teaching, or conversations with friends and family.

INTRODUCTION

Across the United States, many African-Americans believe that police
officers regularly approach and question African-Americans with no evidence
of wrongdoing. We hold this view either because we experience such without-
basis police contact directly or because we live that contact vicariously through
the experiences of our brothers and sisters, mothers and fathers, aunts and
uncles, and friends and neighbors. Without-basis police contacts, or what I will
sometimes call “pedestrian checks,” are part of our collective consciousness as
African-Americans. To borrow from Michael Dawson, they help to constitute
our “linked fate.”1

1. MICHAEL C. DAWSON, BEHIND THE MULE: RACE AND CLASS IN AFRICAN-AMERICAN
POLITICS (1994).

* The Honorable Harry Pregerson Professor of Law and Associate Vice Chancellor, BruinX, the
Office of Equity, Diversity, and Inclusion, University of California, Los Angeles.

153

What many African-Americans might not know is the long-standing role
the Supreme Court has played pushing pedestrian checks beyond the reach
of the Fourth Amendment. The exterior position pedestrian checks occupy
outside the scope of Fourth Amendment law accounts, at least in part, for the
interior position they occupy inside the lives of black people.

I should be clear to note that I am using the term “pedestrian checks” in a
rather specific sense. Some of you may have read the Department of Justice
Report on Ferguson, Missouri, which was published in the aftermath of
social upheaval and protest in Ferguson following the police shooting death
of Michael Brown, an African-American teenager. To those of you who have
not read the Ferguson Report, you should. It is a sobering look at a regional
criminal justice system in which racism and classism were bureaucratized as
normal features of governance. I reference the report here for a very narrow
reason: it includes a discussion of what Ferguson police officers regularly
referred to as “ped checks.” Here’s the relevant passage from the report:

This incident [involving a police officer seizing an African-
American man and running a warrant check without any evidence
that the man had engaged in any wrongdoing] is also consistent with
a pattern of suspicionless, legally unsupportable stops we found
documented in FPD’s [Ferguson Police Department’s] records,
described by FPD as “ped checks” or “pedestrian checks.” Though
at times officers use the term to refer to reasonable-suspicion-based
pedestrian stops, or “Terry stops,” they often use it when stopping
a person with no objective, articulable suspicion. For example,
one night in December 2013, officers went out and “ped. checked
those wandering around” in Ferguson’s apartment complexes. In
another case, officers responded to a call about a man selling drugs
by stopping a group of six African-American youths who, due to
their numbers, did not match the facts of the call. The youths
were “detained and ped checked.” Officers invoke the term “ped
check” as though it has some unique constitutional legitimacy. It
does not. Officers may not detain a person, even briefly,
without articulable reasonable suspicion.2

2. U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., INVESTIGATION OF THE FERGUSON POLICE
DEPARTMENT 18 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/
attachments/2015/03/04/ferguson_police_department_report_1.pdf. For discussions of Terry
stops and race-based decisionmaking, see Jeffrey Fagan, “Race and the New Policing,” in the
present Volume; Henry F. Fradella & Michael D. White, “Stop-and-Frisk,” in the present Volume;
and David A. Harris, “Racial Profiling,” in the present Volume.

Reforming Criminal Justice154

When the Ferguson Report speaks of pedestrian checks, then, it is referring
to instances in which Ferguson police officers seized people without any
evidence of wrongdoing in violation of the Fourth Amendment. While the
unconstitutional pedestrian checks the Ferguson Report describes should be
highlighted and condemned, I am referring to pedestrian checks of an altogether
different sort—police interactions that do not trigger the Fourth Amendment
and therefore do not need to be supported by any evidence of wrongdoing.

So that you appreciate the difference between my use of pedestrian checks
and the Ferguson Report’s use, you need to understand the basic analytical
structure of Fourth Amendment law. The Fourth Amendment protects us from
“unreasonable searches and seizures.”3 When police officers engage in conduct
that is search or seizure, the Fourth Amendment requires them to justify it.
Failure on the part of the government to offer the appropriate justification
renders that search or seizure unreasonable and therefore unconstitutional. The
Ferguson Report’s invocation of “ped checks” is intended to draw attention to
the fact that the Ferguson Police Department was performing unconstitutional
pedestrian checks by seizing and sometimes searching African-Americans
without any justification.

The focus of this chapter is different. My concern is with pedestrian checks
that do not trigger the Fourth Amendment and therefore do not require any
justification. Remember, every time the Court determines that a pedestrian
check is not a search or a seizure, the Court is ducking the question of whether
that pedestrian check is reasonable in the sense of requiring some justification.
To put that point slightly differently, when the Supreme Court concludes that
a pedestrian check is not a search or a seizure, the court is saying that police
officers may perform that pedestrian check without any basis—that is to say,
without a warrant, without probable cause, and without reasonable suspicion.
In short, without any justification whatsoever. Far from being illegal under
the Fourth Amendment, then, pedestrian checks that are neither searches nor
seizures do not implicate the Fourth Amendment at all.

The problem is even worse. The Supreme Court’s conclusion that a
pedestrian check is neither a search nor a seizure makes the question of
whether that pedestrian check is racially motivated entirely irrelevant for
Fourth Amendment purposes. Again, if police conduct is not a search or
a seizure, Fourth Amendment law has absolutely nothing to say about it,
whether that conduct is racially motivated or not. Pause for a moment and
think about what this means: If a pedestrian check does not trigger the Fourth

3. U.S. CONST. amend. IV.

Race and the Fourth Amendment 155

Amendment, police officers have discretion not only to initiate that pedestrian
check without any basis but to racially select whom they wish to subject to
that pedestrian check. You might think that the Equal Protection Clause of the
Fourteenth Amendment solves this problem. It does not, in large part because
for plaintiffs to win an equal protection claim, they must prove that the officer
acted intentionally.4 The burden of proof will almost always be impossible to
meet. So, you should put the Equal Protection Clause to one side, as does the
rest of this chapter. In the meantime, the remainder of the chapter highlights
the discretion Fourth Amendment law effectively gives to police officers to
target and engage African-American pedestrians without any basis. My hope
is that the examples I will offer paint a clear picture of the range of pedestrian
checks police officers can deploy against African-Americans without violating
the Fourth Amendment.

I. DECISION 1: TO FOLLOW

Assume that Tanya, an African-American woman, is walking home from
work at nine in the evening. Two officers observe her. They have no reason
to believe that Tanya has done anything wrong. Nonetheless, they decide to
follow her. Indeed, they follow her all the way home. They do so to ensure
that Tanya does not commit a crime (a sex crime, let’s say), and to arrest her
if she does. Remember, the officers have no objective reason to believe that
Tanya has done—or will do—anything wrong. There is no objective evidence,
in other words, that Tanya has ever engaged in prostitution. Nevertheless, they
follow her based solely on their gendered racial suspicion of black women as
sex workers.

The foregoing conduct would not trigger the Fourth Amendment.5 The
Supreme Court would conclude that Tanya has not been seized. Indeed, the
officers haven’t even approached her. That the officers’ decision to follow
Tanya was racially motivated along the gendered lines I have suggested does
not matter. The Fourth Amendment is not a bar to this form of racialized
surveillance.

4. Washington v. Davis, 426 U.S. 229 (1976).
5. See Florida v. Royer, 460 U.S. 491, 498 (1983) (suggesting that while police officers may
approach an individual without reasonable suspicion or probable cause based on the notion
that the individual is free to ignore the police). The Court has also addressed whether police
following people in public places constitutes a search and answered that question in the negative.
See, e.g., United States v. Knotts, 460 U.S. 276, 285 (1983).

Reforming Criminal Justice156

II. DECISION 2: TO APPROACH

Stipulate now that the police officers decide to approach Tanya. That alone
would not trigger Fourth Amendment protections. In this context as well, the
Court would conclude that Tanya has not been seized.6 Because following and
approaching Tanya is not conduct that implicates the Fourth Amendment,
the officer does not need a prior justification to do so. As with the previous
example, the outcome of this hypothetical remains the same if race influenced
the officers’ decision to approach Tanya.

III. DECISION 3: TO QUESTION WHEREABOUTS AND IDENTITY

But what if in the context of approaching Tanya, the officers decide to
question her? Assume, more specifically, that they ask Tanya the following
questions: “Do you live around here?” “What’s your name?” “Where are you
going?” “Where are you coming from?” “May I see your identification?” The
officers’ engagement7 with Tanya along the preceding lines still would not
constitute a seizure.

IV. DECISION 4: TO QUESTION ON A BUS

Assume that officers engage Tanya not while she is walking on the street but
as she boards a bus. Indeed, stipulate that the police specifically followed Tanya
on the bus to question her. Again, our assumption is that the officers have no
objective reason to believe that Tanya has done anything wrong. Could Tanya
now successfully argue that she has been seized? No.

This is a good place to describe more precisely how the Supreme Court
has defined what constitutes a seizure. The doctrinal standard is that a seizure
does not occur if the person feels free to decline officers’ requests or otherwise
terminate the encounter.8 The Supreme Court has repeatedly stated that the
mere fact that police officers question a person does not mean that that person
is seized.9 Under the Court’s view, suspects whom the police question are “free
to leave.”

One of the most striking articulations of this view appears in Florida v. Bostick.10
In that case, officers observed Bostick sitting in the back of a bus and proceeded

6. Florida v. Bostick, 501 U.S. 429, 434 (1990) (declaring that “a seizure does not occur
simply because a police officer approaches an individual”).
7. Id.
8. Id. at 436.
9. Id. at 434; see also Florida v. Royer, 460 U.S. 491 (1983); INS v. Delgado, 220 U.S. 210 (1984).
10. Bostick, 501 U.S. at 434.

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to question him.11 The government stipulated that the police officers had no
reason to believe that Bostick had done anything wrong.12 Thus, the government
could not argue that Bostick was seized and that the seizure was reasonable. The
thrust of the government’s argument, therefore, was that the officers’ conduct
did not implicate the Fourth Amendment, for Bostick was not seized.13 Thus, the
officers needed no justification to approach and engage Bostick.14

While the Bostick Court did not definitively decide the seizure question,
it made clear that “mere police questioning” does not constitute a seizure—
even if it occurs in the confined space of a bus.15 The Court maintained that
passengers on buses are constrained, not necessarily because of what police
officers do, but because of their decision to travel by bus. According to the
Court, the officers merely “walked up to Bostick … asked him a few questions,
and asked if they could search his bags.”16 The Court intimated that that is
not enough to transform a consensual bus encounter into a seizure.17 More
than a decade later, in United States v. Drayton,18 the Court made that point
explicit: police officers may question people on buses without triggering the
Fourth Amendment.19 Particularly remarkable about the Court’s conclusion
in Drayton is that the record revealed that the officer in the case had boarded
more than 800 buses in the past year to question passengers. Only five to seven
passengers declined to have their luggage searched.20

The Court’s reasoning in Bostick and Drayton would have even more
traction with respect to a person who is on the street, not on a bus. Indeed, in
both cases, the Court noted that had Bostick’s encounter occurred off the bus,
like the hypothetical I describe in Decision 3, it would be easy to conclude that
he was not seized.21 The Court’s reasoning in Bostick and Drayton suggests not
only that a police officer would not need to justify his decision to approach
and question Tanya on the street or on a bus, but also that his decision to do so
could be racially motivated because his subjective intent does not matter.

11. Id. at 446 (Marshall, J., dissenting).
12. Id. at 431, 433–34 (maj. op.).
13. Id. at 434.
14. Id.
15. Id.
16. Id. at 437.
17. Id.
18. United States v. Drayton, 536 U.S. 194 (2002).
19. Id. at 194.
20. United States v. Drayton, 231 F.3d 787, 790–91 (11th Cir. 2000).
21. Drayton, 536 U.S. at 195; Bostick, 501 U.S. at 434.

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V. DECISION 5: TO QUESTION ABOUT IMMIGRATION STATUS

Assume that the officers perceive Tanya to be a foreigner and question her
about her immigration status.22 One might surmise, notwithstanding what
I have said so far, that some forms of questioning, like questioning about
immigration status, might be so intrusive or intimidating that an officer’s
decision to pursue them would automatically trigger the Fourth Amendment.
One would be wrong to so conclude. Stipulate that the officers have no objective
reason to believe that Tanya is undocumented. Nevertheless, one of the officers
approaches Tanya and asks: “Do you speak English?” “How long have you been
in this country?” “Are you an illegal alien?” “May I see proof of citizenship?”
Police officers may ask these and other questions of Tanya without implicating
the Fourth Amendment.23

One of the most troubling examples of the Court’s conclusion that
questioning people about their immigration status does not trigger the Fourth
Amendment is INS v. Delgado. The case adjudicated the constitutionality of
so-called “factory sweeps”—the Immigration and Naturalization Service (INS)
practice of entering workplaces, with the employer’s consent, to question
workers about their immigration status.24 Today, such practices are carried out
by the Immigration and Customs Enforcement, or ICE.

Like the bus sweep in Bostick, the factory surveys in Delgado were conducted
without individualized suspicion. That is, in none of the surveys did the INS
have reason to believe that any particular worker was undocumented.25 Thus,
as in Bostick, the Court had to decide whether the law enforcement’s activity
constituted a seizure. Answering that question in the affirmative would have
made the INS’s conduct an unreasonable seizure, since it was not supported by
evidence that any individual person was undocumented.

The Court, per Chief Justice William Rehnquist, asked two questions: (1)
whether the individual workers whom the INS questioned were seized, and
(2) whether the INS’s conduct effectuated a seizure of the entire workforce.
He answered both in the negative. With respect to the first, Justice Rehnquist

22. These dynamics would affect Latinos who are not black. I include them here to disrupt
the tendency of framing blackness outside of the Latino experience. As for the issue of the
criminalization of immigration, see Jennifer M. Chacón, “Criminalizing Immigration,” in
Volume 1 of the present Report.
23. INS v. Delgado, 466 U.S. 210, 220 (1984) (holding that “factory sweep” questioning of
workers by immigration officers with additional officers positioned at exits did not constitute
seizure under the Fourth Amendment).
24. See Hiroshi Motomura, The Rights of Others: Legal Claims and Immigration Outside of
Law, 59 DUKE L.J. 1723, 1747-49 (2011) (discussing how workplace raids affect employee rights).
25. Delgado, 466 U.S. at 212.

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noted that the interactions were brief.26 The INS merely “asked one or two
questions.”27 Moreover, the questions that the INS asked focused on place of
birth, citizenship status, and proof of residency, and were “not particularly
intrusive.”28 According to Justice Rehnquist, the INS’s conduct “could hardly
result in a reasonable fear that respondents were not free to continue working
or to move about in the factory.”29 Thus, he concluded, the individual workers
whom the INS questioned were not seized.

Justice Rehnquist’s account sanitizes the episode, which involved between
20 and 30 INS agents. These agents wore their INS badges, carried handcuffs—
and they were armed.30 Some of the agents guarded the exits; others moved
systematically through the factory, row by row, “in para-military formation.”31
The entire episode lasted between one and two hours. At no time during any of
this did the agents inform the workers that they were free to leave.32 Presumably,
the workers inferred just the opposite, especially since the INS arrested several
of the workers who attempted to exit the factory.33 Indeed, as one worker
explained, “They see you leaving and they think I’m guilty.”34 Against this
backdrop, Justice Brennan is right to suggest in dissent that Justice Rehnquist’s
analysis is “rooted … in fantasy”35 and “striking … [in] its studied air of
unreality.”36

In addition to concluding that the individual workers whom the INS questioned
were not seized, Justice Rehnquist also held that the workplace as a whole was
not seized. He repeated his point that the mere questioning of individuals is
not a seizure.37 He then added that the fact that the questioning occurred in the
workplace does not necessarily change the analysis. According to Justice Rehnquist,
“[o]rdinarily, when people are at work their freedom to move about has been

26. Id. at 219.
27. Id. at 220.
28. Id. at 219–20.
29. Id. at 220–21.
30. Brief for Respondents at 4, INS v. Delgado, 466 U.S. 210 (1984) (No. 82-1271).
31. Id. at 17.
32. Delgado, 466 U.S. at 217.
33. Brief for Respondents, supra note 30, at 18.
34. Id. at 20 (testimony of one of the workers).
35. Delgado, 466 U.S. at 229 (Brennan, J., dissenting).
36. Id.
37. Id. at 216 (maj. op.).

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meaningfully restricted, not by the actions of law enforcement officials, but by the
workers’ voluntary obligations to their employers.”38 In other words, assuming the
employees in Delgado felt constrained, that sense of constraint derived from their
workplace responsibilities and not the INS’s actions.39

As Tracey Maclin has observed, Justice Rehnquist’s approach is tantamount
to “blam[ing] the victim,”40 The burden is placed not “on the government to
show justification for the intrusion [but] on the citizen to challenge government
authority.”41 Moreover, Rehnquist’s analysis discounts the ways in which law
enforcement’s presence alters how people experience social spaces. When,
for example, the INS agents in Delgado entered the factory, they transformed
that already confining space into a government-centered and more coercive
environment: an INS raid.42

The bottom line for Tanya is that whether she is on the street as a pedestrian
or at her workplace as an employee, the government may question her about
her immigration status without triggering the Fourth Amendment. Moreover,
were an officer to say, “I questioned Tanya because she looked like a Nigerian
immigrant in terms of her dress and appearance,” that racial motivation would
not violate the Fourth Amendment. In a related context, the Supreme Court
has said that “apparent Mexican ancestry” (whatever that means) can be a basis
for determining whether someone is undocumented.

38. Id. at 218.
39. Id. In its brief, the government advanced a similar argument: “Preliminarily, we note that
it is only in a theoretical sense that the work force here, or in any typical factory survey, can be
characterized as having a ‘freedom to leave’ that is restrained by the appearance of the INS. The
factory surveys in this case were conducted entirely during normal working hours. At such times
the employees presumably were obligated to their employer to be present at their work stations
performing their employment duties; accordingly, quite apart from the appearance of the INS
agents, the employees were not ‘free to leave’ the factory in any real sense.” Brief for Petitioners at
22–23, INS v. Delgado, 466 U.S. 210 (1984) (No. 82-1271).
40. Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the
Streets, 75 CORNELL L. REV. 1258, 1305 (1990).
41. Id. at 1306.
42. It is also important to note that at urban work sites such as the facilities raided in Delgado,
as opposed to farming or ranching operations, there is a greater likelihood that citizens and legal
residents work alongside illegal aliens. Asian immigrants also make up a substantial percentage
of the labor force at factories subject to immigration raids. In 1995, federal and state authorities
raided a garment factory in El Monte, California, where 72 Thai nationals were forced to work
18-hour days, seven days a week. The facility was surrounded by barbed wire to prevent escapes.
See Editorial, Slavery’s Long Gone? Don’t Bet on It, L.A. TIMES, Aug. 4, 1995, at B8.

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VI. DECISION 6: TO SEEK PERMISSION TO SEARCH

What if the officers approach Tanya, again without any objective reason to
believe that she has done anything wrong, and ask her for permission to search
her bag? Is Tanya now seized? Does the answer turn on whether the officer
informs Tanya of her right to refuse consent?

The Supreme Court has held that police officers need not inform people
of their right to refuse consent.43 Their failure to do so does not make a search
invalid. Nor does the failure to warn people of their right to refuse consent
turn an encounter into a seizure.44 Thus, consistent with Fourth Amendment
law, police officers may approach individuals whom they have no reason to
believe engaged in wrongdoing, and ask those individuals for permission to
search their persons or effects. Under such circumstances, people are not seized
because (ostensibly) they are free to say no and go about their business. That
people may not know that they have this right to refuse consent—or would
not feel empowered to exercise that right—is largely irrelevant for Fourth
Amendment purposes.

The case in which the Supreme Court developed this doctrine is Schneckloth
v. Bustamonte.45 The facts are these: A police officer, Officer Rand, stopped a car
after observing two burned-out lights.46 Robert Bustamonte was a passenger,
and five other men were in the car. Only one of the men, passenger Joe Alcala,
had identification.47 Officer Rand asked each man to exit the car.48 By this time,
two other officers had arrived.49 (Why other patrol cars were summoned to the
scene when the basis for the stop was a burned-out light, you tell me.) One
of the officers, Officer Rand, requested permission to search the car.50 Alcala
responded, “Sure, go ahead.”51 While there was no indication that Officer Rand
or the other two officers employed direct force to elicit Alcala’s consent, none
of the officers informed Alcala that he had the right to refuse consent.52 Upon
searching the car, the officers found three stolen checks under one of the seats.53
Bustamonte challenged the legality of the search, and lost.

43. See Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (1973).
44. Florida v. Bostick, 501 U.S. 429, 429 (1990).
45. 412 U.S. 218 (1973).
46. Id. at 220.
47. Id.
48. Id.
49. Id.
50. Id.
51. Id.
52. Id. at 222.
53. Id. at 220.

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Central to the Court’s conclusion that the consent search was constitutional
was the idea that “If the search is conducted and proves fruitless, that in
itself may convince the police that an arrest with its possible stigma and
embarrassment is unnecessary.”54 The logic here seems reasonable enough. But
adding race squarely into the analysis exposes some limitations in the Court’s
analysis. If African-Americans believe that police officers are likely to perceive
African-Americans as criminally suspect, they may feel extra pressure to say yes
to consent searches to disconfirm that stereotype. African-Americans might
also feel pressured to say yes to consent searches on the view that saying no
carries the risk of both prolonging the encounter and escalating the tension.

Of course, whites are also subject to pressures to comply with requests from
the police. The point is that, because of racial stereotypes of black criminality,
blacks are subject to a kind of surplus compliance. Blacks, as a general matter,
are going to be less trusting of the police, less comfortable in their presence, and
more concerned about their physical safety than whites. These fears, whether
justified or not, create added pressure for blacks to terminate police encounters
by giving up their rights, consenting to searches, and otherwise being overly
cooperative. None of these racial concerns figures in the Court’s analysis. What
concerns, then, did? The following quote provides a partial answer:

In situations where the police have some evidence of illicit activity,
but lack probable cause to arrest or search, a search authorized by
a valid consent may be the only means of obtaining important and
reliable evidence. In the present case for example, while the police had
reason to stop the car for traffic violations, the State does not contend
that there was probable cause to search the vehicle or that the search
was incident to a valid arrest of any of the occupants. Yet, the search
yielded tangible evidence that served as a basis for a prosecution, and
provided some assurance that others, wholly innocent of the crime,
were not mistakenly brought to trial. And in those cases where there
is probable cause to arrest or search, but where the police lack a
warrant, a consent search may still be valuable.55

54. Id. at 228.
55. Id. at 227-28.

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The passage is quite remarkable. It links the legitimacy of consent searches
to the fact that police officers often will not have the requisite justification—
reasonable suspicion, probable cause, or a warrant—to intrude on a person’s
privacy. This turns Fourth Amendment protections upside down; it is precisely
because consent searches do not require reasonable suspicion, probable cause,
or a warrant that they ought to be suspect.

Nor is the Court right in assuming that consenting to a search will “convince
the police that an arrest with its possible stigma and embarrassment is
unnecessary.”56 While exposing the interior of one’s bag to a police officer is one
way of saying, “I am not carrying drugs,” this innocence-signaling strategy will
not always be enough to dissipate an officer’s suspicions. To understand why,
let’s bring Tanya back into the analysis. Assume that a police officer perceives,
but does not have objective reason to believe, that Tanya is a drug dealer.
Assume that Tanya is carrying a bag and that the officer requests permission
to search it. Stipulate that Tanya says yes, and the officer searches the bag but
does not find any drugs. The officer’s suspicions of Tanya’s criminality will
not necessarily disappear. Tanya’s consent to the search of her bag will not
necessarily terminate the interaction. In fact, her consent may prolong it. The
officer may believe that Tanya granted permission to search her bag because
she is carrying drugs elsewhere on her person; the officer may further assume
that Tanya strategically consented to conceal her criminality.

Alternatively, the officer may know that Tanya’s race puts her in a vulnerable
position in that Tanya might be eager to terminate the encounter because of
her fear of the police and eager to prove her innocence because of her worry
that the officer perceives her to be criminally suspect. If the officer believes
that any of the preceding concerns motivated Tanya’s consent, he may request
permission to conduct another and more intrusive search: a search of Tanya’s
clothing. If Tanya does not consent to this second search, the officer’s suspicions
would presumably intensify. Why would a person who is not carrying drugs
grant permission to search her bag but not her person? Something like this
hypothetical played itself out in a Supreme Court case I mentioned earlier,
United States v. Drayton.57

In Drayton, three members of the Tallahassee Police Department—one
black and two white—boarded a bus just as it was about to depart. Working
from the back of the bus forward, the officers asked passengers questions as
to their travel destinations, their identity, and their personal belongings. The

56. Id. at 228.
57. 536 U.S. 194 (2002).

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“[d]efendants Drayton and Brown were seated next to each other a few rows from
the rear.”58 One of the officers identified himself as a police officer, informed the
defendants that he was part of a drug interdiction team, and asked whether they
had any luggage. Both responded in the affirmative. The officer then asked for
permission to search the bag, to which Brown responded, “Go ahead.”59 Another
officer searched the bag but no illegal substances were found.

If Brown’s consent was a privacy-compromising performance tactic to
disconfirm the assumption of his criminality and to end the encounter, the
strategy did not work. Indeed, it had the opposite effect. Upon learning that
Brown’s bag did not contain any illegal drugs, the officer requested permission
to conduct another, more intrusive search of Brown’s person: a pat-down. His
reason? He thought the defendants “were overly cooperative during the search
[of the bag].”60 In short, the fact that Brown and Drayton consented to the
search of their bag created, rather than eliminated, the officer’s suspicion and
prolonged, rather than terminated, the encounter. In this case, the officer’s
suspicions were confirmed: The pat-down of Brown produced incriminating
evidence, as did the subsequent pat-down of Drayton.61 The Court of Appeals
concluded that because neither search was consensual, the evidence should
have been excluded.62 The Supreme Court disagreed and ruled that the search
was consensual.63

Enter again Tanya. With Drayton in mind, it is fair to say that Tanya is
vulnerable to multiple consent search requests, and not just one. Saying yes to
an officer’s request for permission to search her bag won’t necessarily terminate
the encounter. It could lead to another request, this time for permission to
search Tanya’s person. Without more, the officer’s second request for permission
to search would not make the encounter a seizure. Thus, the officer would not
need any justification to seek that consent.

Nor, as stated earlier, does it matter whether the officer informed Tanya of
her right to refuse consent. Police officers are free to exploit a person’s lack of
knowledge with respect to their Fourth Amendment rights.

The question now becomes: Why would the Court interpret the Fourth
Amendment in such a police-friendly way? Why not require police officers to
inform people of their right to refuse consent? Is it really fair to say that a

58. United States v. Drayton, 231 F.3d 787, 789 (11th Cir. 2000).
59. Id.
60. Id.
61. See id. at 788-90.
62. See id. at 788.
63. See United States v. Drayton, 536 U.S. 194 (2002).

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person consents to something when they do not know they have a right to refuse
that consent? And even if people know their rights, wouldn’t a requirement
that police officers inform them of that right increase the likelihood that the
average person, and certainly the average black person, would feel empowered
to exercise it?

The Court was not oblivious to these questions and the concerns they
raise. But far more important to the Court was the worry that requiring police
officers to notify people of their right to refuse consent would impose too high
a burden on law enforcement. The Court seemed to imagine that police officers
would be required to employ something like the following script:

You have a right to refuse to allow me to search your home, and if
you decide to refuse, I will respect your refusal. If you do decide
to let me search, you won’t be able to change your mind later on,
and during the search I’ll be able to look in places and take things
that I couldn’t even if I could get a warrant. You have the right
to a lawyer before you decide, and if you can’t afford a lawyer we
will get you one and you won’t have to pay for him. There are
many different laws which are designed to protect you from my
searching, but they are too complicated for me to explain or for
you to understand, so if you think you would like to take advantage
of this very important information, you will need a lawyer to help
you before you tell me I can search.64

Many people would argue that requiring that kind of warning would be
impractical.65 Indeed, that is precisely what the government argued on appeal—
“that the very complexity of such warnings proves its unworkability.”66 But
to say that warnings of some sort should be required is not yet to establish
the nature of the warnings. In other words, one might conclude that police
officers should be required to warn people of their right to refuse consent and
reject the idea that the warnings would need to be extensive. The choice is not
between telling a person everything and telling her nothing. There is a middle

64. Brief for Petitioner at 21-22, Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (No. 71-
732) (quoting Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67 COLUM. L. REV.
130, 158 (1967)).
65. Bustamonte, 412 U.S. at 231 (arguing that “it would be thoroughly impractical to impose
on the normal consent search the detailed requirements of an effective warning”).
66. Brief for Petitioner, supra note 64, at 22.

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ground: Prior to conducting a consent search, police officers could be required
to inform a person of nothing more than “you have a right to refuse consent.”
Full stop. At the time Bustamonte was litigated, federal law enforcement officials
regularly dished such warnings.

But Tanya is unlikely to get them. Fourth Amendment law has created a
fiction that people can exercise rights they don’t even know they have. Under
Bustamonte, Tanya can unknowingly waive her Fourth Amendment right to
refuse an officer’s request for permission to search, and police officers are free
to exploit Tanya’s lack of knowledge. This does not mean that police officers
may actively coerce a consent out of Tanya. Fourth Amendment law doesn’t
allow that. But an officer may seek permission to search Tanya and her effects
knowing that Tanya may not know her rights or may not feel empowered to
exercise them.

To summarize where we are: Without any evidence of wrongdoing, police
officers may follow and approach Tanya. They may question her, including
about her immigration status. They may ask to search her person and her
effects, without informing her of her right to refuse consent. These pedestrian
checks are not subject to the constraints of the Fourth Amendment because
none of them are considered seizures. This analysis does not change if the
officers’ decisions along any of the preceding lines are racially motivated. Racial
profiling that does not constitute a search or seizure is racial profiling about
which the Fourth Amendment is unconcerned.

VII. DECISION 7: TO INFILTRATE

Assume for the next three scenarios that Tanya is Muslim and that the
government is interested in investigating whether she has engaged in terrorist
activity.67 Let’s first explore how Tanya could be affected by the freedom with
which the government may infiltrate mosques. Assume that Tanya regularly
attends a neighborhood mosque. Assume further that the government enlists
Mohammed (who goes by “Mo”), one of Tanya’s friends, to inform on her. As
before, the government has no evidence that Tanya has engaged in criminal
wrongdoing. The government’s view is that the fact that Tanya is Muslim and
regularly attends a mosque whose leader routinely and publicly criticizes U.S.

67. As with the point about Latinos, clearly Muslims who are not black would experience the
dynamics I describe. I frame the hypothetical this way to make clear that Muslim identity is one
of the categories through which blackness is interposed.

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foreign policy in the Middle East is reason enough to investigate her. Imagine
that Mo surreptitiously records every conversation he has with Tanya for six
months. Does this violate the Fourth Amendment? No. Indeed, Mo’s activity
would not even trigger the Fourth Amendment.

Unsurprisingly, if Tanya were to argue that she was seized, she would not
get very far. After all, Mo is Tanya’s best friend (or so Tanya believes), and
Tanya was not aware that Mo was cooperating with the government. Under
these circumstances, it stretches credulity to argue that a reasonable person in
Tanya’s position would not feel free to leave or otherwise terminate her many
interactions with Mo.

But what about the other Fourth Amendment trigger question? Has the
government searched Tanya or her conversation? No. The Supreme Court would
conclude that Mo’s conduct does not constitute a search. More specifically, the
Court would reason that Tanya assumed the risk that the person with whom
she had those interactions (Mo) was a government official.68 The burden is on
Tanya to choose her friends more carefully. That Mo surreptitiously recorded
the conversation does not matter.69 The point remains the same: The Fourth
Amendment does not protect us from “misplaced confidence”70 or “false
friends.”71 We assume the risk that the people with whom we interact will listen
to, record, and transmit our conversations,72 even when they are acting under
the direction of law enforcement.

Nor does it matter that the government’s decision to focus on Tanya was
racially and/or religiously motivated. The fact that Mo’s conduct does not trigger
the Fourth Amendment means that it is irrelevant, for Fourth Amendment
purposes, whether that conduct was racially or religiously motivated.

The freedom with which law enforcement can use informants to investigate
terrorism has become a profound problem for Muslim communities. As Amna
Akbar explains, “There is reason to believe that that there are informants at
each and every mosque in the United States.”73 The potential chilling effects
of the government’s use of informants cannot be overstated. It creates an
incentive for Muslims not to attend mosques, and to severely circumscribe
their interactions when they do.

68. See United States v. White, 401 U.S. 745, 753 (1971) (holding that conversations with
wired government informant are not protected by the Fourth Amendment).
69. Id. at 752.
70. Hoffa v. United States, 385 U.S. 293, 302 (1966).
71. On Lee v. United States, 343 U.S. 747, 757 (1952).
72. White, 401 U.S. at 751.
73. Amna Akbar, Policing “Radicalization,” 3 U.C. IRVINE L. REV. 809, 862 (2013).

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VIII. DECISION 8: TO CONDUCT VOLUNTARY INTERVIEWS

Assume that law enforcement still suspects Tanya of terrorism, though
they have no objective reason to believe that she is a terrorist. Here, again,
race and religious affiliation motivate their suspicion. Agents show up at her
house, knock on the door, and announce that they are the Federal Bureau of
Investigation (FBI).74 Tanya answers the door. FBI agent Nelson says, “Good
afternoon, Tanya. Would you mind accompanying us to the FBI’s office? We
are investigating terrorist activity and just want to make sure that you are not
involved.” Tanya accompanies the agents to the office, where they question her
for three hours and then indicate that she is “free to leave but that we might
follow up.” Embarrassed, humiliated, and concerned that the FBI might seek
to question her again, Tanya relays her experience to the American Civil
Liberties Union (ACLU) to ascertain whether the agency violated her Fourth
Amendment rights. She is surprised to learn that the answer is no and that the
FBI regularly employs what it refers to as “voluntary interviews.”

That the FBI refers to investigatory engagements of the sort Tanya
experienced as “voluntary interviews” is a window on how the Supreme Court
would respond to the practice.75 Likely, the Court would conclude that because
Tanya voluntarily went to the FBI’s office, she was not seized. Because the FBI
agents did not use a show of force or otherwise coerce Tanya into staying, she
was free to leave at any time. As with prior examples, the fact that Tanya did
not know her rights or may have felt disempowered to exercise them during
the FBI questioning does not change this outcome. “Mere questioning,” even
in the context of a police station, would not transform a voluntary encounter
into a seizure. In short, the Court would conclude that Tanya went, stayed, and
subjected herself to questioning at the FBI office of her own free will.

74. See Tracey Maclin, “Voluntary” Interviews and Airport Searches of Middle Eastern Men: The
Fourth Amendment in a Time of Terror, 73 MISS. L.J. 471, 479–510 (2003) (explaining that people
perceived to be Arab, Muslim, or Middle Eastern may not experience “voluntary” interviews as
consensual).
75. See, e.g., United States v. Ambrose, 668 F.3d 943, 956–59 (7th Cir. 2012) (relatively
restrictive security requirements at FBI building did not transform noncustodial voluntary
interview into a custodial interview).

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What if Tanya could demonstrate that, in fact, she exercised no such free
will? Subjectively, she felt compelled both to accompany FBI agents to the
station and to answer their questions while she was there. If you’ve recalled the
doctrinal test for a seizure, you will recognize that Tanya’s subjective feelings
are not dispositive.76 The inquiry concerns not what Tanya subjectively felt but
what a reasonable person under the circumstances would have felt.77

But that still leaves a central question: Upon what basis would the Court
conclude that a reasonable person in Tanya’s position would not feel free to
leave a “voluntary interview”? After all, one could argue that no one would feel
free to leave the FBI office under the circumstances I have described—and few,
if any, of us would have felt free to decline the officers’ invitation to accompany
them in the first place. This sense of constraint would be all the more salient if
Tanya is, or is perceived to be, a Muslim.

To put these points more doctrinally, even if we discounted Tanya’s
subjective feelings and interpreted the “free to leave” test in more objective
terms by asking the standard question—whether a reasonable person would
have felt free to leave?—or a more particularized one—whether a reasonable
Muslim would have felt free to leave?—a strong argument can be made that the
answer in each case is no.

But I have already said that the Court could conclude that Tanya has not
been seized. Two structural features of the seizure analysis help to explain why.
First, the free-to-leave framework is a normative inquiry rhetorically disguised
as an empirical one. When the Court asks “whether a reasonable person would
feel free to leave or otherwise terminate the encounter,” it is really asking
whether a reasonable person should feel free to leave or otherwise terminate
the encounter. In every Supreme Court decision in which the question is
whether a person has been seized, the Justices construct the very thing they
purport empirically to locate—the reasonable person. Applying this insight to
our hypothetical, the legal conclusion that a reasonable person is not seized in
the context of a voluntary interview is a normative position that a reasonable
person should not feel seized.

76. See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play no
role in ordinary, probable-cause Fourth Amendment analysis.”).
77. See, e.g., United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“We conclude that a
person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of
the circumstances surrounding the incident, a reasonable person would have believed that he
was not free to leave.”).

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Consider now the second structural feature of the seizure doctrine that makes
it difficult to argue that Tanya’s “voluntary interview” constitutes a seizure.
After an early nod in the direction of factoring race into the seizure analysis,78
the Supreme Court has never since taken race into account in determining
whether a person is seized, effectively adopting a colorblind approach to the
seizure analysis.79 This colorblind approach is particularly striking not only
because the seizure test is a “totality of the circumstances” inquiry80 (why isn’t
race considered a part of the “totality of the circumstances”?), but also because
in a relatively recent opinion the Court concluded that age is a part of the
“totality of the circumstances.” According to the Court:

In some circumstances, a child’s age “would have affected how a
reasonable person” in the suspect’s position “would perceive his
or her freedom to leave.” That is, a reasonable child subjected to
police questioning will sometimes feel pressured to submit when
a reasonable adult would feel free to go. We think it clear that
courts can account for that reality without doing any damage to
the objective nature of the custody analysis.81

The foregoing reasoning applies to race. To appreciate how, substitute race
for age throughout the passage above, focusing specifically on black and white
experiences. Under this thought experiment, the quote now reads:

In some circumstances, a person’s race “would have affected how a
reasonable person” in the suspect’s position “would perceive his or
her freedom to leave.” That is, a reasonable black person subjected
to police questioning will sometimes feel pressured to submit
when a reasonable white person would feel free to go. We think
it clear that courts can account for that reality without doing any
damage to the objective nature of the custody analysis.

78. But see id. at 545 (observing that race is “not irrelevant” to whether a person has been
seized).
79. Devon Carbado, (E)racing the Fourth Amendment, 100 MICH. L. REV. 968 (2002) (arguing
that the Court applies the Fourth Amendment with an assumption of race neutrality, that under
this jurisprudence neither the way police engage people nor the way people interact with the
police are shaped by race, and that race only becomes doctrinally relevant when an officer is
overtly racist in her actions).
80. See, e.g., J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011) (reaffirming the Court’s
traditional objective test for custody based upon totality of the circumstances, but extending it
to include a child’s age among the factors).
81. Id. at 271–72.

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That I am encouraging this race/age substitution is not to suggest that
blacks are to whites what children are to adults. I am mindful of the racial
infantilization of black people under both slavery and Jim Crow. My point in
substituting race for age is simply to note that even if one thinks that age is
more relevant than race in determining whether a person is seized, the claim
that race is irrelevant is difficult to sustain.

The Court’s elision of race should trouble us. It takes off the table an
important factor that could heighten a person’s sense of constraint in the
context of a police encounter. Because, for example, whites and African-
Americans are not similarly situated with respect to how their racial identity
might affect this sense of constraint, the Court’s failure to consider race is not
race-neutral. It creates a racial preference in the seizure doctrine for people
who are not racially vulnerable to, or who do not experience a sense of racial
constraint in the context of, interactions with the police. Black people, across
intraracial differences, are likely to feel seized earlier in a police interaction
than whites, likely to feel “more” seized in any given moment, and less likely to
know or feel empowered to exercise their rights. With reference to black men,
Cynthia Lee puts the point this way:

A young black male who has grown up in South Central Los
Angeles knows that if he is stopped by a police officer, he should do
whatever the officer says and not talk back unless he wants to kiss
the ground. This young man may not feel free to leave or terminate
the encounter with the officer, but if the reviewing court believes
the average (white) person would have felt free to leave, then the
encounter will not be considered a seizure and the young black
male will not be able to complain that his Fourth Amendment
rights have been violated.82

Lee’s point pertains to blacks more generally. The racial asymmetry she
describes is why Paul Butler describes the Fourth Amendment with more racial
specificity as “the white Fourth Amendment.”83 His point is that the Supreme
Court’s colorblind interpretation of the Fourth Amendment ends up protecting
whites more than it does people of color.

The Supreme Court does not take any of this into account. Its failure to do so
elides a particular kind of precarity: racial insecurity. By racial insecurity I mean a
racial sense of exposure, anxiety, and vulnerability that some people experience

82. Cynthia Lee, Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness
Analysis, 81 MISS. L.J. 1133, 1152 (2012).
83. See Paul Butler, The White Fourth Amendment, 43 TEX. TECH. L. REV. 245, 250 (2010).

Reforming Criminal Justice172

in the context of police encounters.84 Whites generally do not experience racial
insecurity because whites generally are neither disproportionately targeted by
the police nor burdened by the concern that their race exposes them to police
surveillance, social control, and violence.

Certainly, incorporating race into the seizure analysis would not be a simple
endeavor. Would that entail adopting a “reasonable black person” standard
when the suspect is black, a “reasonable Latino” standard when the suspect is a
Latino, and a “reasonable Muslim” standard when the suspect is Muslim? Not
necessarily. Such particularized standards could get very messy very quickly.
Thus, I am not advocating an identity-specific approach. It bears mentioning
that when the Court included age in the custody analysis, it did not adopt a
16-year-old standard or a 15-year-old standard or a 13-year-old standard. The
Court simply noted, “[a] child’s age is far ‘more than a chronological fact.’ It is a
fact that ‘generates common sense conclusions about behavior and perception.’
Such conclusions apply broadly to children as a class.”85 Suffice it to say that
these points can be made about race as well.86

My suggestion that the Court take race into account in determining whether
a person is seized is modest given that the seizure analysis is a “totality of the
circumstances” inquiry.87 I am simply proposing including race as one of the
contextual factors that guide the Court’s analysis. I am not the only one to
advance this position. More than two decades ago, Tracey Maclin articulated a
similar recommendation:

My tentative proposal is that the Court should disregard the notion that
there is an average, hypothetical, reasonable person out there by which
to judge the constitutionality of police encounters. When assessing the
coercive nature of an encounter, the Court should consider the race of
the person confronted by the police, and how that person’s race might
have influenced his attitude toward the encounter.88

84. For a discussion of racial anxiety, see L. Song Richardson, “Police Use of Force,” in the
present Volume.
85. J.D.B., 564 U.S. at 261.
86. See generally Russell K. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093 (2008)
(discussing how race creates different common-sense understandings for black and white
Americans).
87. See Florida v. Bostick, 501 U.S. 429, 437 (1991).
88. Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts About Fourth
Amendment Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243, 250 (1991).

Race and the Fourth Amendment 173

Maclin goes on to link his argument to the holistic nature of the seizure
framework:

Currently, the Court assesses the coercive nature of a police
encounter by considering the totality of the circumstances
surrounding the confrontation. All I want the Court to do is to
consider the role race might play, along with the other factors it
considers, when judging the constitutionality of the encounter.89

In short, both Maclin and I are simply urging the Court to take the totality-of-
the-circumstances test seriously by incorporating race into the analysis.

To return to my hypothetical, taking race into account might mean asking,
among other things, whether widespread perceptions of Muslims as terrorists
could cause someone in Tanya’s position to feel compelled to acquiesce to
the FBI’s request for a voluntary interview. The Court might well answer that
question in the negative (recall my earlier point that, as a substantive matter,
the seizure analysis is normative, not empirical). But quite apart from how
the Court would ultimately resolve the issue, its engagement with race would
make it a matter of doctrinal concern, and this in turn would shape how, in
the public arena, we discuss “voluntary interviews” and other surveillance
practices the government deploys against Muslims and others. As things now
stand, Tanya doesn’t get the benefit of this potential discourse effect because
Tanya’s interaction with the FBI is not a Fourth Amendment event. As such, the
interaction requires no justification and generates no juridical debates about
reasonableness that could spill over into the public domain.

That the Fourth Amendment would not protect Tanya from “voluntary
interviews” does not answer whether some other procedural safeguard offers
protection. One might surmise that Miranda would be helpful in this context,
particularly because the questioning occurred at the FBI’s office. In fact,
however, Tanya could not invoke the Miranda protections. For one thing, the
state is not seeking to admit Tanya’s statements against her—thus, there is no
self-incrimination issue.90 For another, the Court would conclude that Tanya
was not in custody, a necessary predicate for the application of Miranda.91 The
test for whether a person is in custody is whether that person is formally under
arrest or experiencing its functional equivalent.92 Because, arguably, Tanya
wasn’t even seized, it is easy to conclude that she was not in custody.

89. Id. at 268–69 (emphasis in original).
90. See Miranda v. Arizona, 384 U.S. 436 (1966). The opinion is grounded in the Fifth
Amendment prohibition against compelled self-incrimination. See id. at 439–42, 457–58, 467–74.
91. See Berkemer v. McCarty, 468 U.S. 420, 429 (1984).
92. See id. at 441–42.

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Similarly, the Sixth Amendment right to counsel would not help. Its
procedural framework applies only when the state has commenced formal
proceedings against a person.93 Finally, because the Supreme Court would
perceive “voluntary interviews” as consensual encounters, arguments against
the practice that invoke due process also would fail.94 The reality, then, is that
Tanya is stuck with the Fourth Amendment, even as it offers her no protections
from the racially motivated “voluntary interview” she experienced.

IX. DECISION 9: TO CONDUCT COMPUTER SURVEILLANCE

Assume now that the police, still suspecting Tanya of aiding or abetting
terrorism, monitor the Internet websites she visits and track to and from
whom she sends and receives e-mail. Yet again, race and religious affiliation
form the sole basis for their suspicion. Moreover, the Fourth Amendment
is not implicated, because neither of these surveillance activities is legally
construed as a search or seizure. Online addresses used during Internet surfing
or online communication are considered public information, unlike the actual
content of communications, and courts have analogized the collection of such
information to the government’s long-established right to monitor telephone
transmission records and postal addresses/addressees appearing on the outsides
of sealed envelopes.95

X. DECISION 10: TO INVESTIGATE TO VERIFY WELFARE ELIGIBILITY

Assume now that Tanya has applied for welfare benefits. Her county has a
program requiring that all prospective welfare recipients submit to mandatory
home visits by county social workers to verify the recipients’ eligibility for
welfare benefits. The county welfare agency notifies Tanya in advance that the
inspection visit will occur at some point during the following week, between
the hours of noon and five in the afternoon. When the social workers visit
Tanya’s home, they find a small bag of marijuana owned by Tanya’s son on

93. See Massiah v. United States, 377 U.S. 201, 204–06 (1964).
94. To bring a due process claim, Tanya would have to argue that government’s conduct was
“overreaching,” “oppressive,” and “coercive.” Colorado v. Connelly, 479 U.S. 157, 163–64, 167 (1986).
95. See, e.g., United States v. Forrester, 512 F.3d 500, 504, 505, 509–11 (9th Cir. 2008)
(analogizing police internet surveillance to telephone pen registers, which were held not
to constitute Fourth Amendment searches in Smith v. Maryland, 442 U.S. 735 (1979)); see
also Christopher Slobogin, “Policing, Databases, and Surveillance,” in the present Volume;
Surveillance Under the PATRIOT Act, ACLU, https://www.aclu.org/infographic/surveillance-
under-patriot-act [https://perma.cc/NW9Z-WR2H]. Moreover, in certain situations, such as
border crossings, police may seize computer hard drives for forensic examination based only on
reasonable suspicion. See, e.g., United States v. Cotterman, 709 F.3d 952, 968, 970 (9th Cir. 2013);
United States v. Saboonchi, 990 F. Supp. 2d 536, 571 (D. Md. 2014).

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the floor of his bedroom. Per the terms of the county program, they report
this finding to county prosecutors. Although the district attorney declines
to prosecute, the county welfare agency uses the incriminating evidence as a
basis to disqualify Tanya from welfare eligibility. Tanya cannot claim Fourth
Amendment protection from the social workers’ search, because courts,
including the Supreme Court, have held either that such investigations do not
constitute a Fourth Amendment “search,” or else that they represent a “special
needs” exception to the Fourth Amendment that is allowable so long as the
primary purpose of the search is justifiable for reasons other than strictly law
enforcement purposes.96

XI. DECISION 11: TO CONDUCT SURVEILLANCE
OF HOMELESS DWELLING

Within months of being found ineligible for welfare benefits, Tanya is
evicted from her apartment and finds herself homeless. She ultimately joins
other homeless people living in makeshift structures made from tarps and
cardboard boxes in the Skid Row area of town. Like many other cities, Tanya’s
city has an ordinance against obstruction of municipal streets and sidewalks,
but her “home,” and the rest of the homeless tent city, intrudes a few feet onto
a city sidewalk. Police officers appear at the tent city to investigate the theft
of merchandise from a nearby business. The officers may freely look inside
Tanya’s dwelling, and may even pull aside a tarp flap or piece of cardboard to

96. Griffin v. Wisconsin, 483 U.S. 868, 872–76 (1987) (warrantless search of probationer’s
home comes under “special needs” exception to Fourth Amendment); Wyman v. James, 400 U.S.
309, 317–19 (1971) (mandatory home visit by welfare workers was not a Fourth Amendment
search, and even if it were, it would have been reasonable); Sanchez v. San Diego, 464 F.3d
916, 920–26 (9th Cir. 2006) (applying both Wyman and Griffin to San Diego County welfare
verification program).

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do so; any evidence they see within will be, constitutionally, fair game. Courts
generally have held that there is no reasonable expectation of privacy in an
unauthorized dwelling illegally erected on public land, so police surveillance
of such dwellings does not constitute a search under the Fourth Amendment.97

XII. DECISION 12: TO CHASE

Assume that Tanya has had all the foregoing interactions with the police—
and on more than one occasion. She does not want to have another encounter
in which the police will presume her to be a criminal. Tanya is worried that she
will be forced to compromise her rights and answer questions or consent to a
search to prove that she is innocent. She believes that her failure to cooperate
could ultimately lead to her arrest. While Tanya has not herself been arrested
for refusing to cooperate with the police, many of her friends—men and
women—in the neighborhood have been. Plus, for at least a decade, black
women in the neighborhood have been complaining that police officers use
the stop-and-frisk practice as a mechanism to engage in sexual harassment.
Tanya thus decides that the next time she observes a police officer, she is going
to avoid that officer altogether—by running away if necessary.

That is what she does one day. The police officers chase Tanya down the
street, shouting, “Stop, it’s the police!” as they do so. Is Tanya now seized? No.
The fact that she is not formally under the control of the police in the sense of
submitting to authority or being apprehended means that she is not seized.98
Thus, police officers are free to chase Tanya, even under circumstances where
they have no reason to think she has engaged in wrongdoing—and even if their
primary reason for doing so is the fact that she is a black woman.

The problem is even worse. If Tanya is running in a “high-crime area,” the
officer is pretty close to having reasonable suspicion to justify stopping her.
To back up: initially the officer has no reason to believe that Tanya has done
anything wrong. Initially, Tanya has the right to avoid the police. To put the point

97. See, e.g., People v. Thomas, 38 Cal. App. 4th 1331, 1335 (1995) (“[A] person who occupies
a temporary shelter on public property without permission and in violation of an ordinance
prohibiting sidewalk blockages is a trespasser subject to immediate ejectment and, therefore, a
person without a reasonable expectation that his shelter will remain undisturbed.”); United States
v. Ruckman, 806 F.2d 1471, 1472–74 (10th Cir. 1986) (no reasonable expectation of privacy in
dwelling built in a cave on federal land); State v. Tegland, 269 Or. App. 1, 10–11 (2015) (“[W]here
erecting a structure in the public space is illegal and the person has been so informed and told
that the structure must be removed, there is no ‘reasonable expectation of privacy’ associated
with the space.”); People v. Nishi, 207 Cal. App. 4th 954, 962–63 (2012) (repeated removal by law
enforcement from campsite occupied illegally tends to negate legitimate expectation of privacy
in that location).
98. California v. Hodari D., 499 U.S. 621 (1991).

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doctrinally, she is “free to leave.” But if Tanya exercises that right by running away,
the officer may draw an adverse inference from her decision to flee. If Tanya is
running in a “high-crime area,” which several scholars have suggested is code for
a predominantly black or brown neighborhood,99 the officer may now have a
basis to stop her, at least according to Supreme Court law.100

A very recent opinion by the highest court in Massachusetts challenges
the idea that running from the police necessarily makes a person a suspect.
According to the court:

[T]he finding that black males in Boston are disproportionately
and repeatedly targeted for FIO [“field interrogation observation”]
encounters suggests a reason for flight totally unrelated to
consciousness of guilt. Such an individual, when approached by
the police, might just as easily be motivated by the desire to avoid
the recurring indignity of being racially profiled as by the desire to
hide criminal activity.101

The Supreme Court has not embraced the foregoing reasoning, and it
remains to be seen whether other jurisdictions will. What this mean for Tanya
if she runs from the police is quite demoralizing: An officer’s decision to chase
her will not amount to a seizure, so the officer is free to do so even if, prior to
the chase, he has no reason to believe that Tanya did anything wrong. Moreover,
if Tanya is subsequently seized—either because the officer apprehends her or
because Tanya stops running and submits to the officer’s authority102—a court
may conclude that that seizure is reasonable, particularly if Tanya is running in
a “high-crime area.”

You might be thinking that the scenario is not as dire as my hypothetical
suggests. After all, Tanya’s options are not limited to running away or remaining
in place. There’s a third way. Tanya could avoid the police by walking. Doing so
would not be considered evasive behavior.

99. See Paul Butler, The White Fourth Amendment, 43 TEX. TECH. L. REV. 245, 254 (2010) (“The
police have more power in high-crime neighborhoods than in low-crime neighborhoods.”); see
also Andrew Guthrie Ferguson, Crime Mapping and the Fourth Amendment: Redrawing “High-
Crime Areas,” 63 HASTINGS L.J. 179, 183 (2011); Margaret Raymond, Down on the Corner, out in
the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60
OHIO ST. L.J. 99 (1999).
100. Illinois v. Wardlow, 528 U.S. 119 (2000). Importantly, Wardlow does not say expressly that
fleeing in a high-crime area equals reasonable suspicion, but it comes pretty close.
101. Commonwealth v. Warren, 475 Mass. 530, 539 (2016). An FIO is a “field interrogation
observation,” in which an officer approaches a person and asks why they are in a particular area.
Id. at 532 n.5.
102. Hodari D., 499 U.S. at 621.

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Let’s pursue this idea. Assume that Tanya does indeed walk away upon
observing the officers. The officer would be perfectly free to follow Tanya
(remember, the act of following a person does not trigger the Fourth
Amendment). The officers could also question Tanya as they are following her
(remember, the act of questioning does not, without more, trigger the Fourth
Amendment). Technically, Tanya is “free to leave.” But how is she to exercise
that freedom if the officer is following and questioning her? Moreover, will
Tanya even know that she is “free to leave”? At some point, Tanya is likely to
simply “consent” to whatever the officer requests—a search, to produce her
identification, to answer his questions—ostensibly of her own free will.

XIII. DECISION 13: TO SEIZE

In each of the foregoing examples, our assumption is that Tanya has not
been seized. But let’s now suppose that the officer seizes Tanya by, for example,
compelling, and not merely asking, her to produce her identification. Stipulate
that this violates the Fourth Amendment in the sense of constituting an
unreasonable seizure because the officer has no evidence that Tanya engaged in
wrongdoing. After obtaining Tanya’s identification, the officer runs her name
through a warrant database and discovers that Tanya has an outstanding warrant
for a parking violation that she neglected (or could not afford) to pay. The officer
handcuffs Tanya, arrests her, and then transports her to the station house.

Assume that Tanya argues that her arrest is unconstitutional. Her claim is
that but for the officer’s decision illegally to seize her and demand that she
produce her identification, the officer would not have discovered the warrant
for her parking ticket. To put this point in the language of Fourth Amendment
law, the arrest was the “fruit of the poisonous tree” (the illegal seizure).103

Tanya could very well lose that argument, particularly if a court concludes
that the officer’s unconstitutional seizure of Tanya was a reasonable mistake.104
Under Fourth Amendment law, police officers not only have tremendous

103. Wong Sun v. United States, 371 U.S. 471, 488 (1963).
104. See Utah v. Strieff, 136 S. Ct. 2056 (2016). In Strieff, an officer stopped someone without
reasonable suspicion, demanded their identification, ran that information through a warrant
database, and subsequently arrested the person based on the discovery that the person had an
outstanding warrant. Id. at 2060. A search incident to arrest uncovered drugs. Id. The defendant
moved to suppress the drugs on the ground that it was the fruit of an illegal seizure. Id. The Court
concluded that suppression was not warranted because the officer’s mistake as to reasonable
suspicion was not flagrantly unlawful and because the discovery of the warrant acted as an
intervening act between the illegal seizure and the discovery of the evidence. Id. at 2064.

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discretion, they have broad latitude to make mistakes.105 Were a court to conclude
that the officer’s unconstitutional seizure of Tanya was a reasonable mistake,
it would also likely conclude that the officer’s discovery of the outstanding
warrant effectively cured the unconstitutional seizure in the sense of being a
separate “intervening act.” If you are confused by that argument, you should
be. How does a warrant whose existence was discovered by an unconstitutional
seizure become an intervening act—something that happened—between the
unconstitutional seizure and the discovery of the warrant? The unconstitutional
seizure of Tanya, not something else, led to the discovery of the warrant, and
the warrant was the basis for Tanya’s arrest.

The foundational case on how we should think about an intervening act,
Wong Sun v. United States,106 provides a more sensible way of thinking about
causation and the “fruit of the poisonous tree” analysis. Simplifying the case,
Wong Sun involved the admissibility of two confessions.107 Let’s call these
confessions Statement 1 and Statement 2. Without too much difficulty, the
Court concluded that Statement 1 was inadmissible because it was the product
of an unreasonable seizure. Not so with respect to Statement 2. The defendant
had argued that Statement 2 should be excluded as the fruit of the same
poisonous tree that produced Statement 1—to wit, the unreasonable seizure.

The Court disagreed, pointing to, among other things, the fact that the
defendant voluntarily showed up to the station house two days after Statement
1 and provided Statement 2. His decision to do so, reasoned the Court, was an
“intervening act” that broke the chain of causation between the initial illegal
seizure that produced Statement 1 and the defendant’s utterance of Statement 2.

No such intervening act applies to my hypothetical. Instead, you have a line of
causation from an unconstitutional seizure (the officer’s decision to stop Tanya
without reasonable suspicion), to the discovery of the outstanding warrant,
to Tanya’s arrest. The chain of causation between the officer’s illegal seizure of
Tanya and her arrest is like the chain of causation between the illegal seizure
in Wong Sun and Statement 1; her illegal seizure and arrest bear virtually no
resemblance to the illegal seizure and Statement 2 in Wong Sun. Nevertheless,

105. See, e.g., Maryland v. Garrison, 480 U.S. 79 (1987) (finding reasonable an officer’s mistake
as to the existence of two apartments on the third floor of a building).
106. Wong Sun, 371 U.S. at 471.
107. In fact, there were multiple defendants in the case and other evidentiary issues that we
need not engage.

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because of a recent Supreme Court case that effectively expands the meaning of
an intervening act,108 Tanya’s argument that her arrest is unconstitutional—the
“fruit of the poisonous tree” of an illegal seizure—could fall on deaf ears.

An African-American’s vulnerability to a legal arrest that began as an illegal
seizure is quite real given how many jurisdictions have engaged in what I call
“predatory policing”—the utilization of policing as a mechanism to raise
revenue for cities generally and police departments specifically.109 Predatory
policing includes issuing citations to people for minor infractions, which,
when unpaid, result in the issuance of a warrant. The number of warrants
that police officers issue in any given year may surprise you. Consider, for
example, Ferguson Missouri. Ferguson’s population numbers 21,000. As of
2014, Ferguson had issued 90,000 summonses and citations; and in 2013 alone,
Ferguson issued 9,007 warrants.110

Against the background of that many outstanding warrants, police officers
have an incentive not only to follow people and ask them for their identification
(which many people will “voluntarily” turn over on the assumption that they
have to), but also to demand their identification (when people refuse to comply
or assert their rights). If it turns out that the person the officer stops does not
have an outstanding warrant, the officer will simply send that person on her
way. At worst for the officer, that person will file a formal complaint. Chances
are, she won’t even do that. Certainly, she won’t file a lawsuit. Would you? If the
officer’s license check reveals that the person has an outstanding warrant, the
officer will be able not only to arrest the person, but also to subject the person
to a number of additional intrusions. The bottom line is that even though
the officer had no reason to believe that Tanya did anything wrong when he
approached her, he could end up with a legitimate basis on which to arrest her.

CONCLUSION

That I have employed hypotheticals to frame this chapter does not mean
that pedestrian checks of the sort I have described are a hypothetical problem.
They are not. Just ask any African-American. Likely, they will have a story to
tell about themselves or someone they know. Moreover, the hypotheticals are
grounded in Supreme Court cases in which many of the litigants are black.
Take a look at Figure 1 below. The left column lists some of the pedestrian

108. See Strieff, 136 S. Ct. at 2056.
109. Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes,
104 GEO. L.J. 1479, 1489 (2016); see Beth A. Colgan, “Fines, Fees, and Forfeitures,” in Volume 4 of
the present Report.
110. U.S. DEP’T OF JUSTICE, supra note 2, at 7, 55.

Race and the Fourth Amendment 181

checks that the Supreme Court has ruled are not a search or a seizure; the
middle column reveals the case and year in which the Court rendered that
ruling; and the column to the right notes the race of the litigant in the case.

Figure 1: Supreme Court Cases Involving Black Litigants

One might say, borrowing from Toni Morrison, that Figure 1 tells a story about
Supreme Court decision-making “on the backs of blacks.”111 The point being
that, in deciding whether police conduct triggers the Fourth Amendment, the
Court regularly adjudicates cases that involve and impact African-Americans
without expressly engaging how members of that community perceive and
experience the police.112 The question then becomes whether the rest of Fourth
Amendment law looks any better. The short answer, distressingly, is no, as my
book, again using mostly hypotheticals, The 4th: From Stopping Black People to
Killing Black People, will discuss in greater detail.

RECOMMENDATIONS

I have two hopes for the chapter. One is that, whatever your views about
policing, you will leave the chapter feeling like you have had a “teachable
moment” about the range of investigation tactics police officers can employ
without triggering the Fourth Amendment. My second hope is that you will
employ the chapter as a tool to educate others in the conduct of the work you
do, whether that work takes the form of “street law” sessions, public forums,

111. Toni Morrison, On the Backs of Blacks, TIME, Dec. 2, 1993, at 57.
112. This is another moment to remind the reader that I am not suggesting that blacks are the
only racial group who are impacted by the Court’s seizure analysis. Note, for example, that the
case establishing the idea that law enforcement may question a person about their immigration
status without implicating the Fourth Amendment involved Latina/o litigants.

Reforming Criminal Justice182

know-your-rights campaigns, legislative decision-making, media education
projects, community organizing, op-eds, classroom teaching, or conversations
with friends and family.

There are four more specific recommendations that flow from the Fourth
Amendment problems this chapter describes:

1. Messaging to police officers. Over the past few years, there has been
quite a bit of discussion about whether police officers should be trained
on implicit bias and de-escalation techniques. The consensus is they
should. This chapter suggests that police officers should be “trained” in
another sense: We should encourage them not to employ the power the
Fourth Amendment effectively gives police officers to force interactions
with people with little or no basis. Much of our engagement with law
enforcement assumes that the police conduct that we find troubling is
inconsistent with the United States Constitution. As this chapter makes
clear, that assumption is flawed. “Bad” policing and constitutional policing
are not the same thing. Thus, our collective message to police officers
should be: Just because the Constitution allows you to do X, doesn’t mean
you should.

2. Police administrative procedures and protocols. Consistent with the
above, police departments should be clear in their training materials
and regulatory and administrative guidelines about where their internal
governance protocols are more stringent than Fourth Amendment law.

3. State law. State law decision-makers—including judges and legislatures—
should take seriously that Fourth Amendment law sets the floor with
respect to the scope of our privacy and security from governmental
intrusions. That is to say, state law can provide more protections than
Fourth Amendment law affords.

4. Community organizing and social protest. Although the foregoing
suggestions are decidedly modest, likely they will not occur without
political organizing and social protest. In other words, a “bottom up”
approach to social change is required. To appreciate what a relatively
narrow but important version of this strategy might look like, think about
the LGBTQ movement for marriage equality. Proponents for marriage
equality pushed cities, state courts, and state legislatures to legitimize
same-sex marriage well before the Supreme Court did the same. There
was nothing particularly radical about this strategy; it just didn’t overly
rely on the Supreme Court or even litigation.

Race and the Fourth Amendment 183

Advocates against police violence should, at a minimum, adopt a similar
“bottom up” strategy. This chapter can help them do precisely that. Specifically,
community organizers, political activists, policymakers and litigators can
employ the race and Fourth Amendment story this chapter tells to generate
on-the-ground political activity directed at moving the important levers of
change I highlighted above: (1) police department rules and regulations, (2)
municipal laws and ordinances, (3) state legislation, and (4) state supreme
court decision-making.

Reforming Criminal Justice184

On June 7, 1892, Homer Plessy waited at the Press Street railroad depot
in New Orleans. He had a first-class ticket for a thirty-mile trip to Covington,
Louisiana. The train arrived on time at 4:15 in the afternoon, and the nicely
dressed, well-groomed young man entered the first-class carriage, took a seat,
gave his ticket to the conductor, and boldly spoke words that led to his ar-
rest and trial in a court of law. Although he looked white, Homer Plessy an-
nounced that he was a “colored man.” According to Louisiana law, he was
an “octoroon”—a person whose ancestry is one-eighth black. The conductor
ordered Plessy to sit in a separate car reserved for nonwhite passengers. When
he refused, the conductor summoned a policeman, who arrested the disobedi-
ent passenger for breaking a state law.

Because it was against the law in Louisiana for a “colored” person to sit
with whites in a railroad car, Homer Plessy had become a criminal. So on this
fateful day he did not travel to the town of Covington, the destination printed
on his railway ticket. In fact, Plessy had never intended to go there. Instead, he
started a journey to seek justice through the Louisiana courts, and if necessary
at the U.S. Supreme Court.

Plessy’s trip was part of a carefully made plan to use the highest law of his
country, the U.S. Constitution, to overturn a racist law of his home state, Loui-
siana. Plessy reached his final destination in 1896, when the U.S. Supreme
Court agreed to decide his case.

In 1890, the Louisiana General Assembly had enacted the Separate Car
Law. According to this statute “all railway companies carrying passengers in
their coaches in this State, shall provide equal but separate accommodations,
for the white, and colored races….No person or persons, shall be permitted to
occupy seats in coaches, other than the ones assigned to them on account of
the race to which they belong.” This law empowered the train conductors “to
assign each passenger to the coach or compartment used for the race in which
such passenger belongs.” If any passengers refused to sit in their assigned
places, they were liable to a fine or imprisonment. There was one exception:
“Nothing in this act shall be construed as applying to nurses attending chil-
dren of the other race.”

On September 31, 1891, a group of prominent Creole men in New Orleans
formed the Citizens’ Committee to Test the Constitutionality of the Separate
Car Law. The Creoles, people of mixed French, Spanish, and African heritage,
belonged to a community that had originated and thrived in Louisiana long
before the United States purchased that territory from France in 1803. Many
of the older Creoles were well-educated, highly respected members of New
Orleans society, and had not been slaves before the Civil War.

6
Separate but Not Equal

Plessy v. Ferguson (1896)

Separate but Not equal 53

Plessy v. Ferguson (1896)

• 163 U.S. 537 (1896)
Decided: May 18, 1896

Vote: 7–1

Opinion of the Court: Henry B.
Brown

Dissenting opinion: John Marshall
Harlan I

Not participating: David Brewer



These Creoles and their children had experienced a large measure of tolera-
tion in their dealings with white residents of New Orleans after the Civil War.
Thus they particularly resented the Separate Car Law, claiming that it violated
the Thirteenth and Fourteenth Amendments of the Constitution, and they vowed
to overturn it through legal action in the state or federal courts.

The Thirteenth and Fourteenth Amendments were enacted after the Civil
War to ensure that black Americans had rights equal to those enjoyed by whites.
The Thirteenth Amendment abolished “slavery or involuntary servitude” for
everyone but convicted criminals. The Fourteenth Amendment provided that
“persons born or naturalized in the United States…are citizens of the United
States and of the State wherein they reside.” Further, state governments were
prohibited from violating “the privileges and immunities of citizens of the Unit-
ed States,” and no state could “deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.” The Creole leaders of New Orleans did not believe
that Louisiana’s Separate Car Law was compatible with the literal meaning of
the Thirteenth and Fourteenth Amendments.

Homer Plessy’s case was not the first one planned by the Citizens’ Com-
mittee to test the constitutional validity of the Separate Car Law. Rather, Daniel
Desdunes, a young Creole man whose ancestry was one-eighth African and sev-
en-eighths European, was the voluntary protagonist in the first case contrived by
the committee. On February 24, 1892, Desdunes boarded a train in New Orleans
bound for Mobile, Alabama. He took a seat in the white coach, announced his
identity as a colored man, and was arrested for violating the state law. His case
was dismissed when the Louisiana Supreme Court ruled that the Separate Car
Law could not constitutionally be enforced against passengers traveling across
state boundaries, because only the Congress had power under the Constitution’s
commerce power (Article 1, Section 8) to regulate interstate transportation.
Plessy, however, had been an intrastate passenger when he was arrested, and his
case went forward.

The Citizens’ Committee invited Albion Tourgée, a New York State resident
and a nationally recognized advocate for the rights of black Americans, to join
local attorney James C. Walker as counsel for Daniel Desdunes in the first case
to test the Separate Car Law. Tourgée and Walker also represented Plessy.

The issue in Plessy’s case was straightforward. Did the Louisiana Separate
Car Law violate the rights guaranteed to Plessy by the Thirteenth and Fourteenth
Amendments? Judge John Howard Ferguson presided at the state district court
that originally heard Plessy’s case and ruled against him. Plessy appealed to the
Louisiana Supreme Court, which ruled that the state government had the power
to regulate transportation strictly within the state’s borders and that “separate
but equal” accommodations for persons of different races did not violate the
U.S. Constitution. The U.S. Supreme Court accepted Plessy’s appeal of the
state’s decision, and the federal case of Plessy v. Ferguson was decided nearly
four years later, because Plessy’s lawyer, Albion Tourgée, acted very slowly to
move the case forward.

At first, Tourgée thought the Court’s delay in hearing arguments on Plessy’s
case would be a tactical advantage. He hoped to use the time to influence pub-
lic sentiment in support of his client. But this strategy did not succeed because
the tide of public opinion was turning strongly against him. The Louisiana law
mandating racial segregation in railroad cars was only one of many instances of
legalized racial discrimination against black Americans in southern states that

54 the purSuit of JuStice

were enacted after the federal government abandoned its post–Civil War poli-
cies to protect formerly enslaved persons. Most pronounced in the South, this
anti–African American trend was also visible in other sections of the country.
For example, there were unchallenged laws segregating blacks and whites on
public conveyances not only in Florida and Alabama, but also in Pennsylvania,
among other places throughout the country. And racial segregation in public
schools, which had long existed under the authority of Congress in the District
of Columbia, was increasingly practiced not only in the South but in other re-
gions, too. Thus, the social context within which the Court would make its deci-
sion seemed quite unfavorable to Plessy’s cause.

Despite the long odds against him, Albion Tourgée was determined to dem-
onstrate the validity of his client’s case. So on April 13, 1896, Tourgée joined
Samuel F. Phillips, an old friend and prominent Washington, D.C., lawyer, to
present oral arguments for Plessy to the Supreme Court.

Lawyers for Louisiana had maintained that the Separate Car Law was a
constitutional exercise of the state’s power to maintain public health and safety
reserved to it by the U.S. Constitution’s Tenth Amendment. They claimed that
indiscriminant mingling of blacks and whites in public conveyances was a po-
tential threat to the public good that the state was obligated and authorized to
maintain. Furthermore, they insisted, their state’s law was consistent with the
Fourteenth Amendment’s equal protection clause because the separate accom-
modations for blacks and whites were equal. As “separate but equal” was the
foundation of the state’s argument, the case became known by this phrase.

Tourgée and Phillips countered their adversaries’ argument by stressing
the incompatibility of the Louisiana Separate Car Law with the Thirteenth and
Fourteenth Amendments. The state statute, Tourgée claimed, violated the Thir-
teenth Amendment because it was “designed to discriminate against the colored
citizens” and thereby “reduce them to a dependent and servile condition.” Racial
segregation, argued Tourgée, was “coincident with the institution of slavery”
because “slavery was a caste, a legal condition of subjection to the dominant
class.” He said the Separate Car Law established a new type of “bondage quite
separable from the incident of ownership.”

Tourgée scorned the Louisiana law’s claim of “equal but separate accom-
modations” for the segregated passengers and asserted that any legally enforced
form of racial separation violated the equal protection clause of the Fourteenth
Amendment. The intention of the Louisiana law, argued Tourgée, was not to
promote public health and safety, as the statute’s advocates claimed, but to
promote a sense of superiority among whites at the expense of blacks. He ex-
claimed, “Justice is pictured as blind and her daughter, the law, ought at least to
be color-blind.” Thus, Tourgée claimed, laws requiring racial discrimination are
inherently unjust and unconstitutional.

To the dismay of Albion Tourgée, Homer Plessy, and the New Orleans Citi-
zens’ Committee, the Supreme Court ruled against them. In his opinion for the
Court’s majority, Justice Henry B. Brown first of all narrowly interpreted the
Thirteenth Amendment by holding that it prohibited only the institution of slav-
ery and was not relevant to other race-based distinctions. Brown said that a law
“which implies merely a legal distinction between the white and colored races…
has no tendency to…re-establish a state of involuntary servitude.” Thus, accord-
ing to Brown, the Separate Car Law did not violate the Thirteenth Amendment.

Next, Justice Brown rejected the claim that Louisiana had violated the
Fourteenth Amendment’s requirement for “equal protection of the laws.” He

Separate but Not equal 55

acknowledged that the purpose of the amendment was “to enforce the absolute
equality of the two races before the law.” But, he added, “it could not have been
intended to abolish distinctions based upon color, or to enforce social, as distin-
guished from political equality, or a commingling of the two races upon terms
unsatisfactory to either.” Thus, Brown made a sharp distinction between social
and political equality and argued that a state law providing “separate but equal”
facilities for blacks and whites did not violate political equality, or the equal sta-
tus of citizens, and therefore was compatible with the Fourteenth Amendment.

He noted, “the establishment of separate schools for white and colored chil-
dren [in several southern and northern states], which has been held to be a valid
exercise of the legislative power even by courts of States [such as Massachu-
setts] where the political rights of the colored race have been longest and most
earnestly enforced.” By this standard, argued Brown, “we cannot say that a law
which authorizes or even requires the separation of the two races in public con-
veyances is unreasonable.”

According to Justice Brown, it was a reasonable policy for the public good
to provide “separate but equal” facilities for persons of different races. After all,
both whites and blacks were equally prohibited from sitting in the railway cars
assigned to the other race. And the different carriages, though separate, equally
accommodated the needs of each racial group. He emphatically rejected the
claim that racially segregated facilities implied inferiority or superiority of one
race relative to the other. Justice Brown wrote,

We consider the underlying fallacy of the plaintiff ’s argument to consist in the
assumption that the enforced separation of the two races stamps the colored race
with a badge of inferiority. If this be so, it is not by reason of anything found in
the act, but solely because the colored race chooses to put that construction upon
it….
Laws permitting, and even requiring their separation in places where they are
liable to be brought into contact, do not necessarily imply the inferiority of either
race to the other, and have been generally, if not universally, recognized as within
the competency of the state legislatures in the exercise of their police power.

Justice Brown maintained that the Fourteenth Amendment was not intended

to enforce social equality or to abolish distinctions based on race. He wrote, “If
the two races are to meet upon terms of social equality, it must be the result of
natural affinities, a mutual appreciation of each other’s merits and a voluntary
consent of individuals.” In conclusion, he justified his interpretation of the Four-
teenth Amendment with this statement: “If the civil and political rights of both
races be equal one cannot be inferior to the other civilly or politically. If one race
be inferior to the other socially, the Constitution of the United States cannot put
them upon the same plane.”

The lone dissenter in this case, Justice John Marshall Harlan, strongly criti-
cized the opinion of the Court. Although he had been a slaveholder in Kentucky
before and during the Civil War, Harlan subsequently developed an unyielding
commitment to the equal rights of blacks and whites, which were guaranteed by
the Constitution.

Taking a cue from Tourgée’s presentation to the Court, Justice Harlan wrote,
“Our Constitution is color-blind, and neither knows nor tolerates classes among
citizens.” He insisted that the “separate but equal” doctrine established by the
Court in the Plessy case was not compatible with the Fourteenth Amendment’s
guarantees of personal liberty and equal legal protection. Finally, he criticized

56 the purSuit of JuStice

Justice Brown’s attempt to justify the Separate Car Law as reasonable. Harlan
said it is the responsibility of the political branches of government to determine
whether a public policy is reasonable. By contrast, it is the Court’s duty to deter-
mine the constitutionality of statutes, not their reasonableness, and the state law
at issue, he held, was manifestly at odds with the words of the

U.S. Constitution.
Justice Harlan presciently declared that the Plessy decision would become
a precedent in support of racial segregation. For the next fifty-eight years,

the “separate but equal” doctrine established by the Court in Plessy v. Fergu-
son was “settled law,” that is, it was a well-established precedent that guided
subsequent decisions of the Court. Consequently, the precedent set by Plessy
bolstered pervasive state-ordered racial segregation throughout the South and in
some other parts of the country as well.

It seems incredible to us today to recall that state laws required black per-
sons to use separate toilets, water fountains, streetcars, and waiting rooms. They
had to attend separate schools and were segregated from whites in prisons, hos-
pitals, hotels, restaurants, parks, theaters, cemeteries, and other public facilities.
“Separate but equal” was the law, but the reality of racial segregation usually
was very unequal facilities for black Americans, which handicapped them se-
verely in all facets of life, irrespective of the Constitution’s lofty guarantees of
equal rights to liberty and justice for all. Legal challenges to racial segregation
were defeated in the courts, where the Plessy precedent prevailed until it was
overturned unanimously by the U.S. Supreme Court in the 1954 case of Brown
v. Board of Education.

Homer Plessy, although he courageously resisted an unjust law, failed to
achieve justice in his own time. And John Marshall Harlan, strong and brave in
his sharp dissent against a popular Supreme Court opinion, endured public con-
tempt and repudiation. In the long term, however, they inspired others to fulfill
their common quest for equal justice under the Constitution; and today Plessy
and Harlan, not their adversaries, have an honored place in our history.

Separate but Not equal 57

“Our Constitution is Color-Blind”
Justice John Marshall Harlan wrote one of the greatest dissenting opinions in the

history of the Supreme Court in response to the majority’s decision in Plessy v. Ferguson.
This former slaveholder from Kentucky fervently defended the constitutional rights of black
Americans, many of whom had once been slaves. A product of his times, Harlan harbored
racially biased opinions, as certain sentences in this dissenting opinion indicate. But his
commitment to constitutional principles and values, the very idea of equal rights under the
law, superseded any reservations he may have held about the capabilities or character of
nonwhite Americans. Most of all, he rejected the very idea of a color-conscious interpreta-
tion of the U.S. Constitution. Rather, he believed that racial identity was not relevant to
constitutional guarantees of civil rights and liberties.

Justice Harlan predicted accurately the deplorable consequences of the Court’s deci-
sion in the Plessy case, foreseeing that this decision one day would be viewed almost as
negatively as the Court’s 1857 ruling in Scott v. Sandford. Harlan also was well aware
that the majority of Americans in his time disagreed with him on issues of race relations,
but he looked beyond the responses of his contemporaries. His dissent was an appeal to
Americans of the future, who might be sufficiently inspired and instructed by his words to
correct the mistakes of the past and achieve durable justice in the relationships of black
and white Americans.

58 the purSuit of JuStice

In respect of civil rights, common to all citi-
zens, the Constitution of the United States does not,
I think, permit any public authority to know the race
of those entitled to be protected in the enjoyment of
such rights. Every true man has pride of race, and
under appropriate circumstances when the rights of
others, his equals before the law, are not to be af-
fected, it is his privilege to express such pride and to
take such action based upon it as to him seems prop-
er. But I deny that any legislative body or judicial
tribunal may have regard to the race of citizens when
the civil rights of those citizens are involved. Indeed,
such legislation as that here in question, is incon-
sistent not only with that equality of rights which
pertains to citizenship, National and State, but with
the personal liberty enjoyed by every one within the
United States….

It was said in argument that the statute of Loui-
siana does not discriminate against either race, but
prescribes a rule applicable alike to white and col-
ored citizens. But this argument does not meet the
difficulty. Every one knows that the statute in ques-
tions had its origin in the purpose not so much to ex-
clude white persons from railroad cars occupied by
blacks, as to exclude colored people from coaches

occupied by or assigned to white persons….The fun-
damental objection, therefore, to the statute is that it
interferes with the personal freedom of citizens….

If a State can prescribe, as a rule of civil conduct,
that whites and blacks shall not travel as passengers
in the same railroad coach, why may it not so regu-
late the use of the streets of its cities and towns as to
compel white citizens to keep on one side of a street
and black citizens to keep on the other? Why may
it not, upon like grounds, punish whites and blacks
who ride together in street cars or in open vehicles on
a public road or street? Why may it not require sher-
iffs to assign whites to one side of a court-room and
blacks to the other? And why may it not also prohibit
the commingling of the two races in the galleries of
legislative halls or in public assemblages convened
for the consideration of the political questions of the
day? Further, if this statute of Louisiana is consistent
with the personal liberty of citizens, why may not the
State require the separation in railroad coaches of na-
tive and naturalized citizens of the United States, or
of Protestants and Roman Catholics?…

The white race deems itself to be the domi-
nant race in this country. And so it is, in prestige, in
achievements, in education, in wealth and in power….

Separate but Not equal 59

the Constitution….The destinies of the two races, in
this country, are indissolubly linked together, and the
interests of both require that the common govern-
ment of all shall not permit the seeds of race hate to
be planted under the sanction of law….

The arbitrary separation of citizens on the ba-
sis of race, while they are on a public highway, is a
badge of servitude wholly inconsistent with the civil
freedom and the equality before the law established
by the Constitution. It cannot be justified upon any
legal grounds.

. . . We boast of the freedom enjoyed by our
people above all other peoples. But it is difficult to
reconcile that boast with a state of the law which,
practically, puts the brand of servitude and degrada-
tion upon a large class of our fellow citizens, our
equals before the law. The thin disguise of “equal”
accommodations for passengers in railroad coaches
will not mislead any one, nor atone for the wrong
this day done….

I am of opinion that the statue of Louisiana is in-
consistent with the personal liberty of citizens, white
and black, in that State, and hostile to both the spirit
and letter of the Constitution of the United States. If
laws of like character should be enacted in the sev-
eral States of the Union, the effect would be in the
highest degree mischievous….

For the reasons stated, I am constrained to with-
hold my assent from the opinion and judgment of
the majority.

But in view of the Constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class or citizens. There is no caste here. Our Consti-
tution is color-blind, and neither knows nor tolerates
classes among citizens. In respect of civil rights, all
citizens are equal before the law. The humblest is the
peer of the most powerful. The law regards man as
man, and takes no account of his surroundings or of
his color when his civil rights as guaranteed by the
supreme law of the land are involved. It is, therefore,
to be regretted that this high tribunal, the final expos-
itor of the fundamental law of the land, has reached
the conclusion that it is competent for a State to reg-
ulate the enjoyment by citizens of their civil rights
solely upon the basis of race.

In my opinion, the judgment this day rendered
will, in time, prove to be quite as pernicious as the de-
cision made by this tribunal in the Dred Scott case….
The recent amendments of the Constitution [Thir-
teenth, Fourteenth, and Fifteenth], it was supposed,
had eradicated these principles [of the Dred Scott
decision] from our institutions. But it seems that we
have yet, in some of the States, a dominant race— a
superior class of citizens, which assumes to regulate
the enjoyment of civil rights, common to all citizens,
upon the basis of race. The present decision…will not
only stimulate aggressions, more or less brutal and
irritating, upon the admitted rights of colored citi-
zens, but will encourage the belief that it is possible,
by means of state enactments to defeat the beneficent
purposes which the people of the United States had
in view when they adopted the recent amendments of

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A J O U R N A L O F I D E A S , A N A L Y S I S , A N D D E B A T E

DECEMBER 28, 2015

 Black Lives Matter: Toward a Modern Practice of Mass Struggle

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Born as a Twitter hashtag, Black Lives Matter has evolved into a potent alternative to the political paralysis and
isolation that racial justice proponents have faced since the election of Obama. In just over two years, the young
movement has reinvigorated confrontation politics, giving voice to a popular and righteous rage, establishing a new
touchstone of grassroots resistance, and ending the acquiescence that has crippled progressive forces in the age of
Obama. The upsurge, which has centered on the crucial, galvanizing issue of police misconduct, also shows signs of
addressing larger questions of social inequity. With continued momentum, Black Lives Matter may help reverse the
coun teroffensive against workers and people of color that has defined the long aftermath of the 1960s and 1970s
liberation struggles.1 To surpass the relatively ephemeral accomplishments of precursors such as Occupy Wall Street,
how ever, the emerging movement must draw on and modernize the creative traditions of popu lar insurgency. It
must become a sustained, truly mass struggle, confronting ferocious backlash and overcoming multiple challenges
while developing its considerable strengths.

Black Lives Matter began, quite modestly, as #BlackLivesMatter. The hashtag was created in 2013 by Patrice Cullors,
Alicia Garza, and Opal Tometi—California and New York-based organizers active in incarceration, immigration, and
domestic labor campaigns—after the acquittal of George Zimmerman for the murder in Florida of seventeen-year-old
Trayvon Martin. The slogan’s deeper significance as the rallying cry for an incipient movement crystal lized in 2014
during the Ferguson, Missouri uprisings against police brutality. In the words of activists, the hashtag leapt from
social media “into the streets.” Black Lives Matter, which Garza has called “a love note” to black com munities, now
serves as shorthand for diverse organizing efforts—both sporadic and sus tained—across the country. The most
recogniz able expression of widespread black outrage against police aggression and racist violence, the phrase has
engendered a spirited, if decen tralized, movement.

Birth of a Contemporary Human Rights Movement

The variety of local campaigns associated with Black Lives Matter confounds attempts to por tray the movement in
fine detail. Still, the con tours of a modern human rights struggle are discernible. Black Lives Matter is youthful,
though it has reenergized older activists who are eager to connect with a new generation of organizers. It arises from
an organic black pro test tradition, while drawing impassioned par ticipants of all colors. Its leadership departs
sharply from the model of the singular, charis matic clergyman or politician. Founded by black women, two of whom
are queer, the movement has galvanized an array of grass-roots activists in multiple communities. Few are full-time
organizers, though many have had encounters with racialized policing or other wise are personally affected by mass
incarcera tion. Many are also feminist, LGBTQ, working-class or low-income, social media savvy, and streetwise. Like
other members of the movement, they are waging an unpreten tious, democratic, militant crusade, determined to
remain autonomous both from the American political establishment and from old guard leaders, such as Jesse
Jackson and Al Sharpton, seen as more invested in punditry than in popu lar struggle.2

It is this commitment to independence and militancy that has shaped the tactics of the movement. Demanding
accountability for rac ist violence and an immediate end to the murder of black people at the hands of the state, Black
Lives Matter activists have used a host of dis ruptive techniques to advance their cause. Their mainstay has been
occupation—of highways, intersections, sporting events, retail stores, malls, campaign events, police stations, and
municipal buildings. They have organized “die ins,” marches, and rallies in multiple cities, viewing creative
disturbance as a means of dra matizing routine attacks on black life.3 Tellingly, the mantra of such demonstrations
has evolved from “Hands up, don’t shoot!” to the more emphatic “Shut it down!” Whether the move ment
categorically rejects—or simply mis trusts—electoral politics remains unclear. What is evident is that most Black
Lives Matter adherents recognize the inherent shortcomings of appeals to politicians, the courts, and other
“acceptable” channels of redress, and have wholeheartedly embraced the arena of the street.

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Political Tendencies within the Movement

This bold strategy has by no means stopped or even slowed the crescendo of violence. The achievements of Black
Lives Matter are nevertheless striking. First, the movement has remained largely unfettered by “respectability
politics,” the belief that subjugated groups can win support for their cause simply by adhering to conventional
standards of decorum. As expo nents of Black Lives Matter are keenly aware, rituals of propriety will not dignify dark
skin that society as a whole detests and degrades. Movement participants have refused to engage in victim blaming.
They have resisted dead-end narratives that emphasize “black-on-black crime” or that prescribe cultural
rehabilitation while eschewing righteous dissent. (Such per spectives reinforce the racist premise that black pathology
—not white supremacy—is chiefly responsible for the state’s systematic assault on black people.)

They have amassed concrete victories, too. Scattered instances of police officers being charged and disciplined for
misconduct suggest that popular outcry can help force concessions from even the most repressive system.4 The
movement’s real success, however, lies in popu larizing radical discourse and providing a vibrant model of democratic
participation. As the move ment’s founders have written, When we say Black Lives Matter, we are broadening the
conversation around state violence to include all of the ways in which Black people are intentionally left powerless at
the hands of the state. We are talking about the ways in which Black lives are deprived of our basic human rights and
dignity . . . How Black women bearing the burden of a relentless assault on our children and our families is state
violence. How Black queer and trans folks bear a unique burden from a hetero patriarchal society that disposes of us
like garbage and simultaneously fetishizes us and profits off of us, and that is state violence.5

Such rhetoric suggests that far-reaching change—not the mere amelioration of police abuse—is the objective.

Black Lives Matter’s elements of spontane ity and self-organization reflect a grassroots surge rather than a measured
and conciliatory airing of grievances. Although by no means consistent or complete, its attempts to center those
closer to the margins—women, queer people, and various non-elites—through the production of blogs, reports,
missives, and by simply invoking the names of unsung victims of police violence (“Say Her Name,” as a related
campaign is dubbed), signal an ethos of inclusiveness and a desire for a fundamental rearrangement of power
relations.

Similar traits have defined past social move ments. One thinks immediately of the uncom promising spirit of the civil
rights–Black Power era, and particularly of the militancy of the Student Nonviolent Coordinating Committee
(SNCC). Like Black Lives Matter participants, SNCC’s young members also belonged to a generation radicalized by a
shocking, highly publicized murder—the 1955 killing of Emmett Till by southern racists. Other historical analo gies
may be drawn. The street insurrectionists (labeled “rioters”) of the 1960s in some ways anticipated modern activists
who face milita rized police in urban centers.

In the current generation of protests, one detects resonances of Black Power’s insistence on self-definition and
human rights rather than on mere social inclusion. Of course, determination to preserve black life in the face of white
suprem acist violence has always been a radical principle, from the anti-lynching crusades of Ida B. Wells around the
turn of the twentieth century, to the Negro Silent Protest Parade of 1917, to the pro tests surrounding the Scottsboro
Boys case of the 1930s, to the 1951 We Charge Genocide petition by the Civil Rights Congress, to the exertions of the
Deacons for Defense and the Black Panthers at the peak of the postwar movement. What ani mated these struggles—
and those of countless leftist and labor causes—was their insurgent nature and the uncompromising character of
their rank and file participants, traits that Black Lives Matter exemplifies.6

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The Struggle for Racial Justice in the Age of Obama

That said, calling “the movement for black lives” (a broad designation encompassing the many formations informally
linked to Black Lives Matter) a “new civil rights movement” may obscure how dramatically the social land scape has
shifted in recent decades. If Obama’s presence in the White House symbolizes accep tance by many Americans of the
ideal of a mul tiracial society, the modern era also has witnessed the construction of a mass incarcera tion regime that
viciously targets black commu nities. Dominant conceptions of “race relations” posit interpersonal relations, or the
visibility of black elites, as critical indexes of progress. Such measures obscure both the persistence of sys temic
racism and the extent to which racialized practices have fueled the explosive growth of the carceral state. Enforcing
racial hierarchy has been a central task of policing since the days of slave patrols. Today, however, the criminal jus –
tice system performs social control tasks—the regulation of black bodies, the harnessing of black surplus labor in the
name of corporate profit—once fulfilled by Jim Crow segregation and other overt forms of discrimination.7

Ironically, the sheer scope and intrusiveness of the modern carceral state provide distinct opportunities for
organizers. By confronting racist patterns of policing, Black Lives Matter is addressing a reality that touches the lives
of a wide segment of people of color. Structural rac ism in the post-segregation era generally has lacked unambiguous
symbols of apartheid around which a popular movement could cohere. Yet mass incarceration and the tech niques of
racialized policing on which it depends—“broken windows,” stop-and-frisk, “predictive policing,” and other extreme
forms of surveillance—have exposed the refurbished, but no less ruthless, framework of white supremacy. In poorer
black and brown commu nities, recognition that cops serve primarily to monitor and subjugate rather than “to serve
and protect” has fostered both deep resentment and radical, oppositional consciousness.8

It has also created the potential for multira cial, class-conscious movements. However, despite the emergence of
Black Lives Matter offshoots such as “Native Lives Matter,” no national alliance of people of color has coalesced on
the issue of police violence. More extensive collaboration with Latinos and undocumented populations—both groups
that have participated in Black Lives Matter protests—would signal a major victory for the movement. For the
moment, the relative diversity of many Black Lives Matter formations has yet to engender a consciously multiracial
political surge from below, as in the “rainbow radicalism” that marked some phases of Black Power organizing
during the 1960s and 1970s. Lingering intereth nic tensions and divisions, as well as the bur dens of daily economic
survival, continue to militate against the rebirth of such an expansive “rights” consciousness and ethic of solidarity.
The existing movement has drawn the backing of white leftists and certain student organiza tions. Yet confrontations
between Black Lives Matter proponents and presidential hopeful Bernie Sanders, in which activists interrupted
campaign events to demand more robust engagement with questions of structural racism, have elicited deep hostility
from some of the candidate’s supporters. Thankfully, such interventions have revived debate about the dynamics of
race and class (and the role of white privilege) in American progressive politics.9

The relationship of Black Lives Matter to white working-class and poor people, who also face elevated rates of police
abuse, remains unclear. The false universality of the assertion that “All Lives Matter” appeals to many white workers,
especially those inclined to dismiss black claims in the name of a fictive post-racial ideal. However, racially diverse
groups of workers, including active members of the Fight for $15 minimum wage campaign, have joined Black Lives
Matter protests. (Collaboration between the movements has remained informal and fairly sporadic.) And although
labor as a whole is split on the issue, some unions with large memberships of people of color have urged the AFL-CIO
to withdraw its support for police unions, which often serve as mecha nisms for suppressing civilian challenges to,
and oversight of, law enforcement. The Service Employees International Union (SEIU) has issued statements of
support for Black Lives Matter, but has yet to grant the movement the vigorous backing it has offered the Fight for
$15 struggle. Complicating the relationship between labor and the movement for black lives is the reality that the

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livelihood of some work ers (e.g., prison guards) depends on the carceral state. Ultimately, Black Lives Matter may
help intensify the growing pressure on the contem porary labor movement to revive its social jus tice roots. As a
whole, however, Black Lives Matter activists have largely neglected to engage progressive trade unionism or to iden –
tify labor as a major ally.10

Internal Divergences and External Threats

Even as it contemplates external alliances, Black Lives Matter is grappling with its own internal tensions. The
movement has avoided ties to mainstream electoral politics, which has long been a barren realm for the pursuit of
gen uinely progressive visions of transformation. Upon learning of their formal endorsement by the Democratic Party
last fall, Black Lives Matter organizers promptly repudiated the statement of support and reaffirmed their com –
mitment to autonomy. Yet elements within the movement (thus far not organized as distinct cliques) clearly wish to
converse with, rather than merely confront, elites such as Hillary Clinton. A robust skepticism toward—rather than a
strategic or ideological aversion to— electoral politics appears to characterize much of the movement. (This is an area
of real poten tial conflict in the future.) Although many Black Lives Matter exponents see exerting mass pressure as
their sole imperative, others have begun to formulate specific policy demands. Time will tell whether this impulse
leads to substantive reform or merely to a con servative transition “from protest to politics.”11

Some organizers wish to transcend reform ism altogether and pursue a revolutionary path. Leftists within and
beyond Black Lives Matter have urged the movement to confront its ideo logical contradictions (including relatively
ambiguous stances on electoral politics and the principle of class struggle), disavowing any trace of collaboration
with the ruling class and identifying capitalism itself—and not merely white supremacy—as the enemy. Leaders of
the movement have displayed signs of a race-class analysis that acknowledges the inseparability of economic justice
and black liberation. (A Black Lives Matter website identifies both black pov erty and “genocide” as forms of state vio –
lence.)12 However, the movement has yet to articulate a clear analysis of the economic underpinnings of white
supremacy. Until it does so, it is unlikely to develop a specific agenda of social redistribution with which to bolster its
promising rhetoric of systemic change.

Questions of gender and sexuality appear to have generated the most significant fissures within Black Lives Matter.
Although black women have been on the forefront of the move ment, some supporters continue to frame the struggle
in terms of a putatively masculine prerogative of self-defense. The corporate media, for its part, consistently presents
police brutality and extrajudicial killing as crises primarily for black men. By organizing vigils, rallies, and other
events in the name of murdered women and girls, campaigns such as “Say Her Name” have fought the erasure or
marginalization of the stories of black women, who face stunning rates of police assault and incarceration.

LGBTQ activists have used similar tactics to battle marginalization, even as they toil on the frontlines of struggle.
Queer participants staged a constructive intervention during the Movement for Black Lives National Convening in
Cleveland last summer, taking to the stage during one session to decry what they saw as elements of transphobia and
heterosexism within the larger movement.13 Willingness to reassess patriarchal and heteronormative lead ership, it
seems, will be a major test of Black Lives Matter’s long-term viability.

The competing political tendencies within Black Lives Matter have yet to become full-fledged factions. External
opposition remains by far the greatest threat to the movement. The very phrase “black lives matter” has elicited
tremen dous anger and scorn in some quarters. (GOP candidates such as Ted Cruz have rallied their political base
simply by reveling in the back lash.) Protesters in Ferguson, Baltimore, and elsewhere have been labeled “looters” and
“thugs.” (The latter term appears to be the racial code word of the moment.) Conditioned to accept the premise of

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black criminality, a large portion of white America instinctively reads black demands as cases of cynical, special
plead ing. Many Americans continue to practice the art of evasion, embracing expressions such as “All Lives Matter,”
“Police Lives Matter,” and most bizarrely, “Southern Lives Matter” (a response to criticism of the display of
Confederate flags).

Even avowed opponents of anti-black violence have condemned militant resistance, choosing instead to issue “calls
for healing and injunctions against anger.”14 Like “All Lives Matter,” such appeals seek to deflect, discredit, or
suppress black protest.

Police themselves have been the most forceful agents of the Black Lives Matter backlash. The anti-racist movement is
facing the kind of intense state repression that crushed Occupy Wall Street. Police spokespeople and apologists have
encour aged the demonization of the struggle, and have propagated the absurd claim that Black Lives Matter actually
provokes assaults on cops. Meanwhile, the apparatuses of state violence have mobilized for a disgracefully one-sided
war. Urban police forces have repeatedly confronted unarmed protesters with military-grade weap onry, a symptom
of despotism that Americans seem to tolerate only because the most visible targets of such deployments are black.
Anticipating further unrest, some law enforce ment agencies have amassed a fearsome arsenal, including acoustic
cannons, weaponized drones, and the foul smelling “skunk spray” used by the Israeli military in the subjugation of
Palestinians. It is not surprising to learn that U.S. police and military forces view Black Lives Matter protest ers as
enemy combatants, subject them to exten sive surveillance, and discuss their conquest in precisely the terms of a
colonial occupation.15

These acts of coercion show no signs of cow ing the resistance. Black Lives Matter, though still young, has entered a
decisive phase. Whether it can expand its popular base will depend on its capacity to strengthen links to other
embattled groups and grassroots movements, explicitly address the spate of violence against transgender people of
color, and develop a firm ideological foundation while retaining its resiliency and élan. If it can do so, the movement
may well pose a deeper challenge to existing social and political arrangements, prefiguring a more humane future
and forging a theory and practice of mass struggle for our time.

 

Notes

1. See Naomi Klein, The Shock Doctrine: The Rise of Disaster Capitalism (New York: Picador, 2007).

2.Jamilah King, “#blacklivesmatter: How Three Friends Turned a Spontaneous Facebook Post into a Global
Phenomenon,” The California Sunday Magazine, January 3, 2015, available at
https://stories.californiasunday.com/2015 03-01/black-lives-matter/; Brit Bennett, “Ta-Nehisi Coates and a
Generation Waking Up,” New Yorker, July 15, 2015, available at http://www.newyorker.com/culture/cultural –
comment/ta-nehisi-coates-and-a-generation waking-up; Glen Ford, “Tamir Rice and the Meaning of ‘No Justice—No
Peace,’” Black Agenda Report, June 17, 2015, available at http://www.blackagendareport.com/tamir_rice_
no_justice_no_peace; Khury Petersen-Smith, “Black Lives Matter: A New Movement Takes Shape,” International
Socialist Review, Spring 2015, available at http://isreview.org/issue/96/ black-lives-matter; “Rev. Sekou on Today’s
Civil Rights Leaders: ‘I Take My Orders from 23-Year-Old Queer Women,’” Yes! Magazine, July 22, 2015, available at
http://www.yesmag azine.org/peace-justice/black-lives-matter-s favorite-minister-reverend-sekou-young-queer;
Alicia Garza, “A Love Note to Our Folks,” N+1 Magazine, January 20, 2015, avail able at

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https://nplusonemag.com/online-only/ online-only/a-love-note-to-our-folks/; Steven W. Thrasher, “‘We’re
Winning’: Jesse Jackson on Martin Luther King, Obama and #black livesmatter,” The Guardian, August 16, 2015,
available at http://www.theguardian.com/us news/2015/aug/16/jesse-jackson-martin-luther king-obama-and-
blacklivesmatter.
3. Nina Shapiro, “Marissa Johnson Part of a New, Disruptive Generation of Activists,” Seattle Times, August 15,
2015, available at http://www .seattletimes.com/seattle-news/marissa-john son-a-generation-of-activists-who-
believe-in disruption/; Bree Newsom, “When Oppression Is the Status Quo, Disruption Is a Moral Duty,” The Root,
August 7, 2015, available at http:// www.theroot.com/articles/culture/2015/08/
when_oppression_is_the_status_quo_disrup tion_is_a_moral_duty.2.html.
4.Ken Klippenstein and Paul Gottinger, “6 Police Officers across the US Were Charged with Murder This Week,
Proving Strength of Protests,” U.S. Uncut, August 20, 2015, available at http://usuncut.com/news/six indictments-
of-killer-cops-this-week-proves blacklivesmatter-is-working/.
5. “About the Black Lives Matter Network,” available at http://blacklivesmatter.com/about/.
6. Clayborne Carson, In Struggle: SNCC and the Black Awakening of the 1960s (Cambridge: Harvard University
Press, 1981); Gerald Horne, Fire This Time: The Watts Uprising and the 1960s (Charlottesville: University Press of
Virginia, 1995); Peniel E. Joseph,
Waiting ’til the Midnight Hour: A Narrative History of Black Power in America (New York: Holt, 2006); Paula J.
Giddings, Ida: A Sword among Lions (New York: HarperCollins, 2008); Manning Marable, Race, Reform, and
Rebellion: The Second Reconstruction and Beyond in Black America, 1945-2006, 3rd ed. (Jackson: University of
Mississippi Press, 2007); Roderick Bush, The End of White World Supremacy: Black Internationalism and the
Problem of the Color Line (Philadelphia: Temple University Press, 2009); Robin D. G. Kelley, Freedom Dreams: The
Black Radical Imagination (Boston: Beacon Press, 2002).
7.Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness
(New York: The New Press, 2010). For more recent scholarship, see the March 2015 issue of Journal of American
History (Vol. 102, no. 1).
8. Edward J. Escobar, “The Unintended Consequences of the Carceral State: Chicana/o Political Mobilization in
Post–World War II America,” Journal of American History 102 (2015): 174-84.
9.Sam Frizell, “Sanders and O’Malley Stumble during Black Lives Matter Protest,” Time, July 18, 2015, available at
http://time.com/3963692/ bernie-sanders-martin-omalley-black-lives matter/. For more on “rainbow radical ism,”
see Jeffrey O. G. Ogbar, Black Power: Radical Politics and African American Identity
(Baltimore: Johns Hopkins University Press, 2004), 159-90.
10. “The #FightFor15 and the Black Lives Matter Movement March Together,” #Fight for 15, available at
http://fightfor15.org/april15/main/ the-fightfor15-and-the-black-lives-matter movement-march-together/ Evan
McMorris-Santoro and Jacob Fischler, “Unions Split, Take Sides after Ferguson,” BuzzFeed News, August 22, 2014,
available at http://www. buzzfeed.com/evanmcsan/organized-labor ferguson#.ypeP1eyM2w; “Justice For Eric
Garner,” 1199SEIU, available at http:// www.1199seiu.org/justiceforgarner#sthash. PtVUi50a.dpbs; “Denouncing
Police Unions: A Letter to the AFL-CIO,” UAW Local 2865, available at https://docs.google.com/
document/d/1QCWE4Tx0ti-vse9tbUBi cL7v4lO-mOj2QC8Yk7HMcEM/edit?pli=1; Shawn Gude, “The Bad Kind of
Unionism,” Jacobin Magazine, Winter 2014, available at https://www.jacobinmag.com/2014/01/the-bad kind-of-
unionism/; Robert Korstad and Nelson Lichtenstein, “Opportunities Found and Lost: Labor, Radicals, and the Early
Civil Rights Movement,” Journal of American History 75 (1988): 786-811; David Roediger, The Wages of Whiteness:
Race and the Making of the American Working Class (London: Verso, 1991); Lois Weiner, “A Labor Movement That
Takes Sides,” Jacobin, September 7, 2015, avail able at https://www.jacobinmag.com/2015/09/ black-lives-matter-
labor-day-dyett-strike/.
11.Amanda Terkel, “Black Lives Matter Disavows Democratic Party’s Show of Support,” Huffington Post, last
updated August 31, 2015, available at http://www. huffingtonpost.com/entry/black-lives-matter –
dnc_55e48104e4b0c818f6188cab; “Black Lives Matter Infighting Leads to Splinter Group with Comprehensive
Policy Agenda,” Your Black World, August 21, 2015, available at http://yourblackworld.net/2015/08/21/black lives-

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matter-infighting-leads-to-splinter-group with-comprehensive-policy-agenda/; Bayard Rustin, “From Protest to
Politics: The Future of the Civil Rights Movement,” Commentary, February 1965, 25-31.
12. Bruce A. Dixon, “Where’s the #BlackLives Matter Critique of the Black Misleadership Class, or Obama or
Hillary?” Black Agenda Report, August 6, 2015, available at http:// blackagendareport.com/node/4624; Carmen
Berkeley, “An Open Letter to the Black Community From 100 Black Youth,” Huffington Post, July 15, 2013, available
at http://www.huffingtonpost.com/carmen-berk ley/an-open-letter-to-the-bla_b_3596688.htmll; Matt Peppe, “The
Baltimore Uprising and the
U.S. Government’s Record on Human Rights,” Global Research, May 6, 2014, available at
http://www.globalresearch.ca/the-baltimore uprising-and-the-u-s-governments-record-on human-rights/5447509;
Barbara Ransby, “The Class Politics of Black Lives Matter,” Dissent, Fall 2015, available at https://www.dissentmag –
azine.org/article/class-politics-black-lives-mat ter; “About the Black Lives Matter Network,” available at
http://blacklivesmatter.com/about/.
13.Kali Nicole Gross, “African American Women, Mass Incarceration, and the Politics of Protection,” Journal of
American History 102 (2015): 25-33; Priscilla Ward, “My Anger Is Justified: Why Black Women’s Rage Is Necessary
for Change,” forharriet, August 16, 2015, available at http://www .forharriet.com/2015/08/my-anger-is-justified –
why-black-womens.html?m=1; Josh Kruger, “#SayHerName Protest Exposes Tension among Philly Activists,”
Philadelphia Citypaper, July 27, 2015, available at http://citypaper.net/ philly-sayhername-protest-exposes-fissures –
in-activist-community-calls-for-feminism and-intersectionality/; Amanda Teuscher, “The Inclusive Strength of
#BlackLivesMatter,” The American Prospect, August 2, 2015, available at http://prospect.org/article/inclu sive-
strength-blacklivesmatter; Alicia Garza, “A Herstory of the #BlackLivesMatter Movement,” The Feminist Wire,
October 7, 2014, available at http://www.thefeministwire .com/2014/10/blacklivesmatter-2/; Danielle
C. Belton, “The 5 Biggest Challenges Facing #BlackLivesMatter,” The Root.com, August 12, 2015, available at
http://www.theroot.com/ articles/culture/2015/08/the_5_biggest_chal lenges_facing_blacklivesmatter.html.
14. David Weigel and Katie Zezima, “Cruz Leads a GOP Backlash to ‘Black Lives Matter’ Rhetoric,” Washington Post,
September 1, 2015, available at http://www.washington post.com/news/post-politics/wp/2015/09/01/ cruz-leads-a-
gop-backlash-to-black-lives matter-rhetoric/; Philip Holloway, “Police Lives Matter,” CNN.com, September 4, 2015,
available at http://www.cnn.com/2015/08/31/ opinions/holloway-police-lives-matter/; Ayo Coly, “Healing Is Not
Grieving: We Must Not ‘Move Forward’ In the Wake of Massacre,” Truthout, July 3, 2015, available at http://www
.truth-out.org/opinion/item/31693-healing-is not-grieving-we-must-not-move-forward-in the-wake-of-
massacresupremacists-without borders.html?smid=nytcore-iphone-share&sm prod=nytcore-iphone&_r=0.
15.Rania Khalek Rights, “St. Louis Police Bought Israeli Skunk Spray after Ferguson Uprising,”
Electronicintifada.net, August 13, 2015, avail able at https://electronicintifada.net/blogs/ rania-khalek/st-louis-
police-bought-israeli skunk-spray-after-ferguson-uprising?utm_ source=twitterfeed&utm_medium=twitter; Lee
Fang, “Acoustic Cannon Sales to Police Surge after Black Lives Matter Protests,” The Intercept, August 14, 2015,
available at https:// firstlook.org/theintercept/2015/08/14/after ferguson-baltimore/; Jay Syrmopoulos, “New
Released Documents Reveal U.S. Military Labeled All Ferguson Protesters as ‘Enemy Forces,’” The Free Thought
Project.com, April 18, 2015, available at http://thefreethought project.com/released-documents-reveal-u-s military-
labeled-ferguson-protestors-enemy forces/#JWHBwl087vuzUiPQ.01; Matt Ago rist, “No Longer a Conspiracy
Theory: First State Legalizes Weaponized Drones for Cops,” The Free Thought Project.com, August 26, 2015,
available at http://thefreethoughtproject. com/longer-conspiracy-theory-state-legalizes weaponized-drones-cops/;
Paddy O’Halloran, “‘They Will Not Take the Street’: Ferguson and Colonial Histories,” Counterpunch.org, August 20,
2015, available at http://www.counter punch.org/2015/08/20/they-will-not-take-the street-ferguson-and-colonial-
histories/.

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by  Russell Rickford

Russell Rickford is an assistant professor of history at Cornell University. A specialist in the Black Radical Tradition
and African-American political culture after World War II, he is the author of We Are an African People: Black
Power, Independent Education, and the Radical Imagination.

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Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 125

7
The areas of focus of this case study are:

W� Segregation in the USA in the 1950s

W� Martin Luther King and the use of non-violence to achieve

civil rights objectives

W� The development of more radical methods and individuals

in the 1960s, for example, Malcolm X and the Black Panthers

W� Achievements of the Civil Rights Movement

The Civil Rights
Movement in the USA
in the 1950s and 1960s

Source 7.1

A photograph showing US Democratic hopefuls, Barack Obama (third from left) and
Hillary Clinton (four th from right) par ticipating in a march on 4 March 2007 commemorating
‘Bloody Sunday’, the 1965 voting rights campaign march from Selma to Montgomery.

K E Y CONCEP T S

Key concepts relevant
to this chapter are:
W democracy W racism
W self-determination

K E Y DATE S

1954

US Supreme Cour t
orders schools to
desegregate

1955–56

Montgomery Bus Boycott

1957

27 September
US Army protects
African American
students entering
Central High School,
Little Rock
President Eisenhower
initiates 1957
Civil Rights Act

1960–61

Campaign of ‘sit-ins’
against segregation

1960s

Growing influence
of Malcolm X,
Black Power and
Black Panthers

1963

Protest marches in
Birmingham, Alabama
August March on
Washington

T

T

T

T

T

T

T

T

1964

‘Freedom Summer’
volunteers murdered

4 July Civil Rights bill
becomes law

1965

March ‘Bloody Sunday’ and
Selma to Montgomery march

August President Johnson
signs Voting Rights Act

1968

4 April Mar tin Luther
King assassinated

Civil Rights Act makes
discrimination illegal

Retrospective126

Introduction
In mid January 2007, Democratic Party Senator Barack Obama embarked

on a campaign to gain his party’s nomination for the United States 2008

presidential election. This was newsworthy because Obama was an African

American, a member of a group within the United States that, at the time of

his birth, was struggling to even exercise voting rights. It was also significant

because Obama’s considerable popularity led many to believe that the United

States, a nation with a long history of racial discrimination, was ready, in

the early twenty-first century, to elect an African American president. The

Civil Rights Movement of the 1950s and 1960s helped lay the groundwork

for this change.

Source 7.2

Extracts from a news repor t on 16 January 2007 commenting on Barack Obama seeking
the Democratic Par ty’s nomination in the 2008 presidential elections

OBAMA: DEMOCRATIC STAR WHO COULD

BECOME FIRST BLACK US PRESIDENT

By Paul Handley

Democratic Senator Barack Obama, who has rocketed to national political

stardom in only two years, stands a good chance to become the first

African-American president in United States history . . .

Only two years into his first six-year term in the Senate, with easy oratorical

skills and a brilliant smile, Obama is a phenomenon unseen in US politics some

say, since John F. Kennedy burst onto the scene and captured the presidency

in 1960.

Advertising himself as the voice of a new post-baby-boom generation, Obama

is the son of a black Kenyan father and a white American mother from the US

heartland state of Kansas. He identifies himself as African-American and is

seen by most Americans as such . . .

After graduating from high school, Obama attended Columbia University

and then went to ultra-competitive Har vard Law School, where he was the

first black American to hold the prestigious post as president of the influential

Harvard Law Review . . .

He exploded onto the national scene that summer [2004] with an electrifying

speech at the Democratic National Convention in Boston.

‘There is not a black America, and a white America, a Latino America, and

Asian America — we are one people, all of us pledging allegiance to the stars and

stripes, all of us defending the United States of America,’ he declared to roaring

applause . . .

After winning the Senate he has proved himself an agile legislator working

with members of both parties while maintaining a steady profile as a

moderate liberal . . .

Yahoo! News, 16 January 2007.

SOURCE QUE S TIONS

1. What is the main content of source 7.2?

2. What do you think was the journalist’s motive for writing this article?

Civil Rights Movement W�
a program of protest and civil
disobedience undertaken by
African Americans and their
supporters in the 1950s and
1960s to overcome racist
policies that denied them
their civil rights

Civil Rights Movement W�
a program of protest and civil
disobedience undertaken by
African Americans and their
supporters in the 1950s and
1960s to overcome racist
policies that denied them
their civil rights

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 127

Segregation in the USA in the 1950s
Despite having gained their emancipation from slavery in 1865, African

Americans faced discrimination in every aspect of their lives until at least

the 1950s. The 14th amendment (1868) to the United States Constitution prom-

ised ‘the equal protection of the laws’ to all the nation’s citizens. In practice,

many US lawmakers, law courts and law enforcers approved a systematic

segregation according to race. This resulted in African Americans being

forced to use separate entrances to buildings; separated in theatres and on

buses; and denied access to ‘whites only’ swimming pools, hospitals, schools,

housing and even cemeteries. They had to endure inadequate and sub-

standard facilities; were intimidated into not exercising their voting rights;

were referred to by the derogatory terms ‘nigger’ and ‘coon’; and were at risk

of becoming victims of mob rule, horrific violence and even lynchings.

Laws known as the Jim Crow laws enforced this segregation and the

unequal distribution of the nation’s resources that accompanied it. Segre-

gation and racial intolerance were worse in the southern states, where over

50 per cent of African Americans lived.

In the early 1950s, US President Harry Truman, despite his own long-held

racist attitudes, made some symbolic acts to address this situation, including

ordering an end to discrimination in the armed forces and the civil service.

He recognised that discrimination damaged the United States’ international

reputation. His leadership in this area helped to bring the issue of civil rights

for African Americans to national attention.

During the 1950s and 1960s, African Americans, along with people of other

racial groups within the United States, embarked on the Civil Rights Move-

ment to challenge discrimination and achieve the equality that the American

Constitution promised for its entire people and which was part of its claim to

being a democracy. One of the early actions of this movement was to chal-

lenge the education system.

segregation W�the policy of
separating racial groups in all
aspects of their lives to ensure
that whites maintained
supremacy over African
Americans

Jim Crow laws W�state laws,
dating back to the 1880s, aimed
at enforcing segregation between
whites and blacks in the use of
transport and public facilities
and in the outlawing of marriage
between the two racial groups

segregation W�the policy of
separating racial groups in all
aspects of their lives to ensure
that whites maintained
supremacy over African
Americans

Jim Crow laws W�state laws,
dating back to the 1880s, aimed
at enforcing segregation between
whites and blacks in the use of
transport and public facilities
and in the outlawing of marriage
between the two racial groups

Source 7.3

Photograph showing the scene

at the lynching of two African

Americans in Indiana in 1930.

The young men had been

accused of the murder of a

white man and the assault

of his girlfriend.

Source 7.3

Photograph showing the scene

at the lynching of two African

Americans in Indiana in 1930.

The young men had been

accused of the murder of a

white man and the assault

of his girlfriend.

SOURCE QUE S TIONS

1. Describe what is happening

in the source 7.3

photograph.

2. What appears to be the

attitude of the crowd

witnessing the lynching?

SOURCE QUE S TIONS

1. Describe what is happening

in the source 7.3

photograph.

2. What appears to be the

attitude of the crowd

witnessing the lynching?

racist W�the attitude that people
of a different race/colour are
inferior to those of one’s
own race/colour

racist W�the attitude that people
of a different race/colour are
inferior to those of one’s
own race/colour

democracy W�government by
elected representatives of
the people

democracy W�government by
elected representatives of
the people

Retrospective128

‘Separate but equal’ in the education system
In the case Plessy v. Ferguson in 1896, the United States Supreme Court upheld

the legality of separating races on the basis of the principle ‘separate but

equal’. As a result, in the 1950s, African American children attended schools

that were lacking in toilets, running water and even desks. Local edu-

cation authorities only purchased new books for the white students in their

districts. In Alabama in 1949, the state’s expenditure on African American

students amounted to 27 per cent of its expenditure on white students.

In 1950, eight-year-old Linda Brown became the centre of a Kansas court

case demanding an end to segregated schools, which existed legally in 17

states. Spurred on by her father, she wanted to attend the well-equipped

‘whites only’ school six blocks from her home rather than the African Amer-

ican school at four times the distance. The National Association for the

Advancement of Coloured People (NAACP) and its lawyer, Thurgood Mar-

shall, brought the case to state and federal courts, and fi nally on appeal to

the US Supreme Court. Throughout this process, supporters of segregation

fought strongly to maintain separate schools for white children. They argued

that the Constitution did not give the US federal government the power to

overrule state law on education. Dr Kenneth Clark, a key witness for the

NAACP, described the results of his investigations into the impact of segre-

gation on African American children (see source 7.5).

I found that 10 of the 16 children between the ages of six and nine whom I tested

chose the white doll as their preference. Eleven of the children chose the brown

doll as the doll which looked ‘bad’. . . .

My opinion is that a fundamental effect of segregation is basic confusion in the

individuals and their concepts about themselves . . . This is an example of how the

pressures which these children sensed against being brown forced them to evade

reality — to escape the reality which seems too burdening or threatening . . . These

children in Clarendon County, like other human beings who are subjected to an

inferior status, have been defi nitely harmed . . . the signs of instability are clear.

Quoted in Globe Fearon Historical Case Studies, The Civil Rights Movement,
Globe Fearon Educational Publisher, New Jersey, 1997, p. 17.

On 17 May 1954, Chief Justice Earl Warren handed down the unanimous

decision of the nine Supreme Court justices (see source 7.6).

Source 7.4

Photographs showing the

difference in schools under

the ‘separate but equal’ policy.

On the left is the exterior of

an African American school in

Ruleville, Mississippi in 1949. On

the right is a primary school for

white students in Virginia in 1935.

Source 7.4

Photographs showing the

difference in schools under

the ‘separate but equal’ policy.

On the left is the exterior of

an African American school in

Ruleville, Mississippi in 1949. On

the right is a primary school for

white students in Virginia in 1935.

SOURCE QUE S TIONS

1. What do the photographs
in source 7.4 suggest
about the differences in
the facilities available to
students attending each of
these schools?

2. List two facts you could put
forward to support the view
that the schools available
to African Americans were
inferior to those available
to white children.

SOURCE QUE S TIONS

1. What do the photographs
in source 7.4 suggest
about the differences in
the facilities available to
students attending each of
these schools?

2. List two facts you could put
forward to support the view
that the schools available
to African Americans were
inferior to those available
to white children.

Source 7.5

Extract from Dr Kenneth Clark’s

testimony in the Brown case. In

his ‘doll tests’, Clark obser ved the

reactions of African-American

children to a pink doll and a

brown doll.

Source 7.5

Extract from Dr Kenneth Clark’s

testimony in the Brown case. In

his ‘doll tests’, Clark obser ved the

reactions of African-American

children to a pink doll and a

brown doll.

SOURCE QUE S TION

In your own words, explain
what Dr Clark (source 7.5)
considered to be the effect
of segregation.

SOURCE QUE S TION

In your own words, explain
what Dr Clark (source 7.5)
considered to be the effect
of segregation.

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 129

To separate [the African American children] from others of similar age and
qualifications solely because of their race generates a feeling of inferiority . . .
We conclude that in the field of public education the doctrine of ‘separate but

equal’ has no place. Separate educational facilities are . . . unequal.

Chief Justice Earl Warren, quoted in Globe Fearon Historical
Case Studies, The Civil Rights Movement, op. cit., p. 18.

SOURCE QUE S TION

What reasons does Chief Justice Warren give in source 7.6 for the Supreme Court’s

judgement overturning ‘separate but equal’?

The Supreme Court demanded the desegregation of schools. In 1955, it

reinforced this decision by ordering officials to comply with its guidelines for

bringing African and white American students together in schools.

In the South, many community leaders responded with plans to continue

segregated education. Politicians gave their signatures in support of the

Southern Manifesto, aimed at defeating the Brown decision. People formed

Citizens’ Councils to organise resistance to the ruling. Others supported the

white supremacist group, the Ku Klux Klan. By late 1956, six southern states

had not even attempted to integrate education. It was clearly going to be very

difficult to enforce a Supreme Court decision that had so much organised

opposition, especially considering that US President Eisenhower had no per-

sonal commitment to integration.

In 1957, nine African American students tried to attend Central High

School in Little Rock, Arkansas. They had to endure threats and attempted

violence from the racist crowds lining the streets that led to the school. Pro-

segregation Arkansas governor, Faubus, sent in the Arkansas National Guard

to ‘preserve order’.

At the corner I tried to pass through the long line of guards around the school so
as to enter the grounds behind them. One of the guards pointed across the street.
So I pointed in the same direction and asked whether he meant for me to cross the
street and walk down. He nodded ‘yes.’ So, I walked across the street conscious
of the crowd that stood there, but they moved away from me . . . Then someone
shouted, ‘Here she comes, get ready!’ I moved away from the crowd on the
sidewalk and into the street. If the mob came at me, I could then cross back over
so the guards could protect me.

The crowd moved in closer and then began to follow me, called me names. I still
wasn’t afraid . . . Then my knees started to shake and all of a sudden I wondered
whether I could make it to the center entrance a block away. It was the longest
block I ever walked in my whole life.

Even so, I still wasn’t too scared because all the time I kept thinking that the
guards would protect me . . .

The crowd was quiet. I guess they were waiting to see what was going to happen.
When I was able to steady my knees, I walked up to the guard who had let the white
students in. He too didn’t move. When I tried to squeeze past him, he raised his

bayonet and then the other guards closed in and they raised their bayonets.

Elizabeth Eckford, quoted in Daisy Bates, The Long Shadow of Little Rock,
David McKay, New York, 1962, pp. 73–6.

Source 7.6

An extract from Chief Justice Earl
Warren’s speech handing down
the Supreme Cour t’s decision in
the Brown case, 17 May 1954

Source 7.6

An extract from Chief Justice Earl
Warren’s speech handing down
the Supreme Cour t’s decision in
the Brown case, 17 May 1954

desegregation W�the policy
of breaking down differences
that have existed between
racial groups

desegregation W�the policy
of breaking down differences
that have existed between
racial groups

Ku Klux Klan W�an
organisation, founded
originally in 1865, whose
members engaged in campaigns
of terror and intimidation
against African Americans and
those who supported them

integration W�the policy of
encouraging contact between
different racial groups and
ensuring that they share the
use of facilities

Ku Klux Klan W�an
organisation, founded
originally in 1865, whose
members engaged in campaigns
of terror and intimidation
against African Americans and
those who supported them

integration W�the policy of
encouraging contact between
different racial groups and
ensuring that they share the
use of facilities

Source 7.7

Extract from 14-year-old
Elizabeth Eckford describing
her attempts to reach
Central High School

Source 7.7

Extract from 14-year-old
Elizabeth Eckford describing
her attempts to reach
Central High School

SOURCE QUE S TIONS

1. Who are the ‘guards’ that

Elizabeth Eckford was

referring to in source 7.7?

What does she expect them

to do for her?

2. What does the source

reveal of the guards’

attitude towards her?

SOURCE QUE S TIONS

1. Who are the ‘guards’ that

Elizabeth Eckford was

referring to in source 7.7?

What does she expect them

to do for her?

2. What does the source

reveal of the guards’

attitude towards her?

Retrospective130

Little Rock degenerated into mob rule as pro-segregationists engaged

in campaigns of hatred and violence against African Americans. African

Americans suffered beatings, had their property attacked and lived under

constant threat from the racist groups who controlled the city. Finally,

President Eisenhower, more concerned to enforce the federal law on

integration than committed to desegregation, ordered 1000 federal troops

into Little Rock. Two days later, on 27 September 1957, the nine African

American students entered Central High School under the protection of the

United States army.

A man yelled: ‘Look, they’re going into our school’ . . . The crowd now let out a roar

of rage. ‘They’ve gone in,’ a man shouted.

‘Oh God,’ said a woman, ‘the niggers are in school.’

A group of six girls, dressed in skirts and sweaters, hair in pony-tails, started to

shriek and wail. ‘The niggers are in our school,’ they howled hysterically . . .

Hysteria swept from the shrieking girls to members of the crowd. Women cried

hysterically, tears running down their faces.

Extract from New York Times, September 1957, reproduced in N. Demarco,
The USA: a Divided Union, Longman, UK, 1994, p. 82.

SOURCE QUE S TIONS

1. In what ways is the behaviour of the guards in source 7.8 different from that

described by Elizabeth Eckford in source 7.7? What is the reason for this difference?

2. In what ways does the information provided in source 7.9 support the attitudes

of the white onlookers that are evident in source 7.7?

3. What impression do sources 7.7 and 7.9 give of the African American students

wanting to attend Central High School? How do you explain the differences in

the two perspectives expressed?

Source 7.8

A photograph showing President

Eisenhower’s National Guard

escor ting the nine students into

Central High School at Little Rock,

Arkansas, on 27 September 1957

Source 7.8

A photograph showing President

Eisenhower’s National Guard

escor ting the nine students into

Central High School at Little Rock,

Arkansas, on 27 September 1957

Source 7.9

Extract from the New York Times

repor t in September 1957,

describing the crowd’s response

to the nine children’s admission

to the High School

Source 7.9

Extract from the New York Times

repor t in September 1957,

describing the crowd’s response

to the nine children’s admission

to the High School

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 131

When the Arkansas National Guard troops took over a month later, vio-

lence against the new students resumed. Governor Faubus used this as an

excuse to close the high schools for a full year. The state then established

‘private’ schools, which excluded African Americans. Despite a court order

that schools be reopened, desegregation lacked strong support from either

state or federal governments and remained difficult to enforce. In 1960,

only about 13 per cent of African American students in the southern states

attended integrated schools. In 1964, the figure was 2 to 3 per cent for the

nation as a whole.

The Montgomery Bus Boycott
The campaign to enforce desegregation in schools began a series of small-

scale protests aimed at the achievement of African American civil rights.

On 1 December 1955, in Montgomery, Alabama, 42-year-old Rosa Parks began

another phase of this movement. Tired after a long day’s work, she refused

to give up her seat on the bus. The law reserved the front seats of the bus for

whites. African Americans could sit in the back of the bus or in the middle if

whites did not require these seats. Rosa Parks sat in the middle and refused

to move when the ‘whites only’ section had filled up. The bus driver called

the police, who arrested her.

Rosa Parks, a well-respected member of the NAACP, went to gaol for vio-

lating the law. In protest, the African American community, who comprised 75

per cent of bus users in Montgomery, began a boycott of the city’s buses that

continued for 382 days. This was in addition to African American demands

for equal and polite treatment from bus drivers and the provision of jobs for

African American drivers.

African Americans wanted recognition of their equal rights to bus seats.

Bus companies faced massive financial losses but refused to give in. The

bus companies had the support of large sections of the white community,

especially people who belonged to the Ku Klux Klan and the Citizens’ Coun-

cils formed to resist integration.

civil rights W�rights that
anyone in a given society is
entitled to as a member of that
society; the rights that the US
Constitution gives to its
citizens

civil rights W�rights that
anyone in a given society is
entitled to as a member of that
society; the rights that the US
Constitution gives to its
citizens

boycott W�the policy of refusing
to use or purchase the goods or
services provided by an
individual or group. The
purpose is to bring pressure on
the individual/group to engage
in different behaviour.

boycott W�the policy of refusing
to use or purchase the goods or
services provided by an
individual or group. The
purpose is to bring pressure on
the individual/group to engage
in different behaviour.

Source 7.10

A photograph showing members

of Ku Klux Klan walking the

streets of Montgomery at the

time of the bus boycott

Source 7.10

A photograph showing members

of Ku Klux Klan walking the

streets of Montgomery at the

time of the bus boycott

SOURCE QUE S TION

What do you think these

Ku Klux Klan members

would have hoped to achieve

by appearing like this at the

time of the Montgomery

bus boycott?

SOURCE QUE S TION

What do you think these

Ku Klux Klan members

would have hoped to achieve

by appearing like this at the

time of the Montgomery

bus boycott?

Retrospective132

The boycott demonstrated African Americans’ determination to take

unified action in the fight for their rights; the value of economic power as a

weapon; the extent of racism that existed within many southern communi-

ties; and the changed attitudes of many whites. The African American slogan

was ‘People don’t ride the bus today. Don’t ride it for freedom’. Montgomery’s

African American residents walked or gained transport through car pools,

often with the help of sympathetic members of the white community.

Martin Luther King, a young Baptist minister working in Montgomery,

took on an important role as president of the Montgomery Improvement

Association (MIA), the organisation directing the bus boycott. His church

became a centre for planning tactics and for providing inspiration and emo-

tional support to help make the boycott unanimous.

In November 1956, the Supreme Court ruled in favour of the MIA’s case for

desegregation. The boycott ended on 20 December 1956, when the bus com-

panies agreed to allow all bus travellers the same rights to any vacant seats.

Civil Rights Acts in 1957 and 1960
The bus boycott and moves towards desegregation in schools made Presi-

dent Eisenhower conscious of the need to gain support from potential

African American voters. In the United States, people have to register in

order to vote and at this time only about 20 per cent of African Americans

had done so. Eisenhower initiated the 1957 Civil Rights Act, significant as the

first civil rights legislation in 82 years, although limited in scope. It declared

discrimination to be illegal and established the Federal Civil Rights Commis-

sion to prosecute anyone in breach of this law. While technically it provided

improved opportunities for African Americans to register to vote, it provided

only weak sanctions for anyone trying to prevent them from doing so.

Increased violence against African Americans, including bombings of

churches and schools, led to Eisenhower putting forward a new bill, which

became the 1960 Civil Rights Act. It created penalties for anyone violating

a court order to integrate a school or preventing someone either voting or

registering to vote. An additional 3 per cent of African Americans registered

for the 1960 elections.

Martin Luther King and the use of non-violence to
achieve civil rights objectives

Martin Luther King (1929–1968) admired the example of non-violent protest

that Mohandas K. Gandhi had used in India in the 1920s. Gandhi had encour-

aged Indian people to practise non-violent non-cooperation in their protest

against British rule of their country. Like Gandhi, King advocated a program of

civil disobedience that used non-violent methods.

In 1957, King joined with other members of the clergy to establish the

Southern Christian Leadership Conference (SCLC). The SCLC began a cam-

paign of ‘direct action’, that was a dramatic change from the NAACP’s focus

on court battles. The campaign involved non-violent protest in the form of

boycotts, demonstrations and marches to increase national consciousness of

the denial of civil rights to African Americans. While many of these were

successful, the harder thing was to establish and maintain the organisation

that would inspire ongoing effort for the cause.

discrimination W�treating
an individual or a group
differently on the basis of race,
age, religion, sex or some
other factor

discrimination W�treating
an individual or a group
differently on the basis of race,
age, religion, sex or some
other factor

civil disobedience W�
a campaign in which
participants refuse to obey laws
that they believe to be unjust

civil disobedience W�
a campaign in which
participants refuse to obey laws
that they believe to be unjust

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 133

Sit-ins
In February 1960, in North Carolina, four African American college students

refused to leave the seats they had taken at the local ‘whites only’ Wool-

worth’s cafeteria. With other students supporting them, they maintained a

presence on the seats for the entire day, forcing cafeteria business to a stand-

still. Martin Luther King encouraged this non-violent initiative. In 1960–61,

over 70 000 people took part in ‘sit-ins’ which succeeded in integrating public

eating areas and also in desegregating other public facilities in 150 cities.

Source 7.11

Photograph from February 1960

showing the first lunch counter

sit-in at Woolwor ths in Charlotte,

Nor th Carolina

Source 7.11

Photograph from February 1960

showing the first lunch counter

sit-in at Woolwor ths in Charlotte,

Nor th Carolina

SOURCE QUE S TION

What do source 7.11 and
source 7.12 indicate about:

(a) supporters of the Civil
Rights Movement

(b) the attitudes of those who
supported segregation?

SOURCE QUE S TION

What do source 7.11 and
source 7.12 indicate about:

(a) supporters of the Civil
Rights Movement

(b) the attitudes of those who
supported segregation?

Source 7.12

A photograph showing civil rights

suppor ters at a ‘sit-in’ in May

1963. They are seated at

Woolwor th’s ‘whites only’ lunch

counter in Jacksonville

Mississippi. All three had sauce,

mustard and paint thrown at

them. Some hours later, the man

was beaten up.

Source 7.12

A photograph showing civil rights

suppor ters at a ‘sit-in’ in May

1963. They are seated at

Woolwor th’s ‘whites only’ lunch

counter in Jacksonville

Mississippi. All three had sauce,

mustard and paint thrown at

them. Some hours later, the man

was beaten up.

Retrospective134

King’s work in the early 1960s gained increasing national and international

support for desegregation in all areas of American life. In 1961, he led dem-

onstrations (organised by the SNCC) in Albany, Georgia, protesting against

segregation in hotels, housing and restaurants. The ‘Albany Movement’

achieved some integration of facilities but local authorities took their revenge

by closing the parks, selling the swimming pool and removing the seats from

the newly integrated public library. This led King to believe that it was better

to pressure authorities into ending discrimination, not negotiate with them.

In early 1963, Martin Luther King and the SCLC began a series of protest

marches in Birmingham, Alabama — a city renowned for its racism. King

increased publicity for the movement by encouraging children and teenagers

to participate as well. King was arrested and imprisoned for eight days. While

there, he wrote his ‘Letter from Birmingham Gaol’, arguing that people were

right to disobey unjust laws but must be willing to endure imprisonment. He

described himself as standing between two distinct forces that characterised

the black community at the time:

those whose self-respect had been so worn-down by years of oppression

that they were now complacent about the injustices of segregation

those who harboured a growing bitterness and hatred of white people

and had lost all faith in God and their country.

Following King’s release, 1000 school students of Birmingham walked and

sang in protest against segregation. Police arrested 90 per cent of these stu-

dents aged between six and 16. King organised another march for the fol-

lowing day. Two thousand five hundred people of all age groups marched.

The local police responded with clubs, attack dogs and electric cattle prods.

Firefighters turned their high-pressure hoses on the demonstrators, knocking

them into the walls of buildings or onto the pavements. Dogs attacked the

protestors’ arms and legs. Newspapers published dramatic photos of these

events all over the world. President Kennedy sent federal troops to restore

order in Birmingham.

W

W

SNCC W�Student Non-Violent
Coordinating Committee,
established in response to the
success of the ‘sit-ins’

SNCC W�Student Non-Violent
Coordinating Committee,
established in response to the
success of the ‘sit-ins’

Read the letter by going to
the website for this book
and clicking on the Letter
from Birmingham Gaol
weblink for this chapter
(see ‘Weblinks’, page viii).

Read the letter by going to
the website for this book
and clicking on the Letter
from Birmingham Gaol
weblink for this chapter
(see ‘Weblinks’, page viii).

Source 7.13

A photograph showing police
using fire hoses against civil
rights demonstrators during the
1963 civil rights marches in
Birmingham, Alabama

Source 7.13

A photograph showing police
using fire hoses against civil
rights demonstrators during the
1963 civil rights marches in
Birmingham, Alabama

SOURCE QUE S TION

What information does source

7.13 provide? What do you

think was the photographer’s

purpose in taking this photo?

SOURCE QUE S TION

What information does source

7.13 provide? What do you

think was the photographer’s

purpose in taking this photo?

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 135

Source 7.14

Car toon entitled ‘Stars fell on Alabama’, by Thomas F. Flannery, published in the

Baltimore Evening Sun

SOURCE QUE S TIONS

1. What is the message of the cartoonist who created source 7.14? Who would be

its likely audience?

2. What does the cartoon suggest about the impact of events in Birmingham on

the United States?

Police brutality in Birmingham provided a marked contrast to King’s

leadership and tactics and encouraged Americans to support calls for anti-

discrimination laws. When African Americans staged another march a few

days later, the police refused to obey the order of Police Chief ‘Bull’ Connor

to again turn fire hoses on the demonstrators.

On 10 June 1963, President John Kennedy called on Congress to pass more

civil rights laws. Two nights later, NAACP activist, Medgar Evers, was shot

dead outside his home in Jackson, Mississippi. African Americans, shocked

and outraged at the circumstances of Evers’ death, decided to organise a

march to Washington DC, the seat of American government.

Retrospective136

The 1963 March on Washington
For African Americans, the goals of the March on Washington in August

1963 were:

to pressure the government into passing the proposed new Bill on civil

rights and improving employment prospects for African Americans

to stage an event that would attract worldwide media attention and

demonstrate the success of non-violent tactics, especially among those

angered by the slow pace of change.

The march, orchestrated by long-term activist A. Philip Randolph, was

a huge demonstration in favour of civil rights for African Americans. On

28 August 1963, Martin Luther King faced a crowd of over 200 000 civil rights

supporters crammed in between the Washington Monument and the Lincoln

Memorial. It was the 100th anniversary of the Emancipation Proclamation

that ended slavery. King spoke of his dream for a different America: ‘Those

who hope that the Negro … will now be content will have a rude awakening

if the Nation returns to business as usual. There will be neither rest nor tran-

quillity in America until the Negro is granted his citizenship rights’.

W

W

Source 7.15

A photograph of the March

on Washington in 1963. Mar tin

Luther King is third from the right

in the front row. It was at this

march that he gave his famous

‘I have a dream’ speech.

Source 7.15

A photograph of the March

on Washington in 1963. Mar tin

Luther King is third from the right

in the front row. It was at this

march that he gave his famous

‘I have a dream’ speech.

SOURCE QUE S TIONS

1. What does source 7.15
indicate about the strength
of this protest and the
types of people who
supported it?

2. What do the placards
indicate about the demands
of the protesters?

3. Access the website for this
book and click on the
‘I have a dream’ weblink for
this chapter. Listen to or
read the full speech.

(a) What are the key
elements of King’s dream
as indicated in the speech?

(b) How might different
groups have felt about
this speech?

SOURCE QUE S TIONS

1. What does source 7.15
indicate about the strength
of this protest and the
types of people who
supported it?

2. What do the placards
indicate about the demands
of the protesters?

3. Access the website for this
book and click on the
‘I have a dream’ weblink for
this chapter. Listen to or
read the full speech.

(a) What are the key
elements of King’s dream
as indicated in the speech?

(b) How might different
groups have felt about
this speech?

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 137

The Civil Rights Bill became law when the new president, Lyndon Baines

Johnson (installed after Kennedy’s assassination in November 1963), signed it

on 4 July 1964. Johnson had pushed the Bill through Congress partly out of a

sense of obligation to Kennedy and, more significantly, because he believed

discrimination to be morally wrong. Martin Luther King was present at the

signing ceremony. In late 1964, The Swedish Academy awarded King the

Nobel Peace Prize for his efforts in the Civil Rights Movement. However, his

influence in the movement was already diminishing.

Freedom Summer: Mississippi 1964
In 1964, the SNCC called on young volunteers — both black and white and

from all over the United States — to devote their summer holidays to help

end segregation in Mississippi. One thousand volunteers came to help run

Freedom Schools, teach typing and reading and provide general information

about US laws and African Americans who had fought for civil rights. They

also assisted 17 000 African Americans to complete voter registration forms,

although the lack of cooperation from officials meant that less than 10 per

cent succeeded in actually registering.

On 21 June 1964, civil rights workers James Earl Chaney (19), Andrew

Goodman (20) and Michael Schwerner (24) disappeared while driving

between Meridian and Philadelphia in Mississippi. They were on their way

to investigate the burning of an African American church. Police arrested

them just outside Philadelphia for a minor driving offence and later said

that the three were released from gaol a few hours later. FBI agents found

their car in a swamp two days later and six weeks later located the activists’

bodies. They had been beaten and shot. Of the 18 white men accused of the

murders, 11 were acquitted and seven were found guilty of lesser charges.

The murders highlighted:

the dangers of involvement in the Civil Rights Movement

the law’s failure to uphold the rights of its citizens.

The ‘Freedom Summer’ volunteers were under constant threat of violence.

Whites burned 37 churches, bombed 30 houses and buildings, beat up 80

people involved in the project, arrested over 1000 and murdered Chaney,

Goodman and Schwerner. The failure of the newly established Mississippi

Freedom Democratic Party (MFDP) to gain full representation at the Demo-

cratic Party Convention supported the view of many African Americans that

integration was unrealistic and non-violence was ineffective.

Bloody Sunday: Selma 1965
On 7 March 1965, 600 SCLC activists embarked on an 80-kilometre march

from Selma to Montgomery to highlight the cause of voting rights. Only 23

of Selma’s 19 000 African Americans were registered to vote and King’s cam-

paign to change this had led to police violence but no progress. Police waited

for the marchers at Selma’s Edmund Pettus Bridge. They attacked the crowd

with clubs and tear gas. People called the day ‘Bloody Sunday’.

Two days later, Martin Luther King led a second protest march to the bridge

and, on Sunday 21 March, 3200 protesters — this time with court protection

— began the walk to Montgomery. By the time they got there, on 25 March

1965, the crowd had grown to 25 000. Similar marches in key US cities high-

lighted the growing popular support for this issue.

W

W

Following decades of public

pressure, the Mississippi

government re-opened the

case in 2005 and, with new

evidence, re-tried and

convicted Edgar Ray Killen,

a local minister.

Following decades of public

pressure, the Mississippi

government re-opened the

case in 2005 and, with new

evidence, re-tried and

convicted Edgar Ray Killen,

a local minister.

Retrospective138

Source 7.16

A photograph of Martin Luther King and his wife Coretta Scott King (wearing bonnet) leading
protesters on 24 March 1965, the fourth day of their march from Selma to Montgomery, Alabama

SOURCE QUE S TIONS

1. Describe the event that is taking place in source 7.16 and explain its
significance for the Civil Rights Movement.

2. Look back at source 7.1 (page 125). In what ways does the photograph provide
evidence of the ongoing importance of the 1960s civil rights campaign?

In August 1965, President Lyndon Johnson signed the Voting Rights Act into

law. The protest march from Selma to Montgomery contributed to its suc-

cessful passage through Congress. By the late 1960s, voter registration in the

South had increased by over 200 per cent.

The development of more radical methods and
individuals in the 1960s

While King inspired many individual initiatives and provided leadership for a

number of individual events, he never managed to unite all civil rights activists

behind his vision. King’s campaign for civil rights became less influential as:

many activists, including King himself, devoted their energies to anti-war

protests against US involvement in Vietnam

younger and more radical supporters of the Civil Rights Movement began

to openly question the effectiveness of King’s use of non-violent protest.

Members of groups such as the SNCC felt King gained credit for a lot of

their hard work.

W

W

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 139

Black Power
By the late 1960s, the words Black Power had come to dominate the Civil

Rights Movement. The two words were coined by Stokely Carmichael, a

leading supporter of the Black Power movement. The words encouraged

African Americans to pursue self-determination and to take control of their

own communities. Civil rights’ campaigns had focused mainly on discrimi-

nation in the South. The 50 per cent of African Americans who lived in the

North also suffered inadequate housing, poor access to facilities, high unem-

ployment and white control of government and law enforcement. Stokely Car-

michael argued that many whites remained violently opposed to civil rights

despite King’s appeals to their consciences and morality. Some Black Power

supporters saw their goal as supremacy over whites; others aimed at improved

conditions for workers. Some interpreted it as political and economic power.

Source 7.17

Photograph showing two African American athletes, Tommie Smith and John Carlos, at their
medal ceremony at the 1968 Mexico Olympics. After receiving their medals, they gave the
Black Power salute and refused to acknowledge the US flag when it was raised for the
anthem. Smith’s right-handed salute expressed ‘Black Power’ and Carlos’ left-handed salute
symbolised black unity. The white silver medallist, Melbournian Peter Norman, showed his
suppor t by wearing an OPHR (Olympic Project for Human Rights) badge. (Smith and Carlos
were both pallbearers at Norman’s funeral in October 2006.)

Another prominent African American leader, Malcolm X, also believed

that African Americans needed to become militant in order to defeat white

racism. While serving a prison sentence for burglary, Malcolm X had become

interested in a religious group known as the Nation of Islam. Its teachings

incorporated the goal of a separate African American state as well as concern

to promote economic self-help for African Americans. While mainstream

Islamic teaching was non-racist, the Nation of Islam preached the oppo-

site view — that whites were ‘devils’ who would soon be destroyed, thus

enabling black rule.

Black Power W�a movement
from the 1960s onwards
promoting African Americans’
control of their own political
and cultural organisations with
the goals of promoting pride
in their race and achieving
equality

self-determination W�
a people’s right to exercise
independent control of its
own destiny

Black Power W�a movement
from the 1960s onwards
promoting African Americans’
control of their own political
and cultural organisations with
the goals of promoting pride
in their race and achieving
equality

self-determination W�
a people’s right to exercise
independent control of its
own destiny

SOURCE QUE S TION

What message were these

athletes intending to convey

at this Olympic Games

medal ceremony?

SOURCE QUE S TION

What message were these

athletes intending to convey

at this Olympic Games

medal ceremony?

militant W�wanting to take
aggressive action in support of
a cause

Nation of Islam W�an
organisation founded in 1930
and led by Elijah Mohammed
from 1934 until 1975

militant W�wanting to take
aggressive action in support of
a cause

Nation of Islam W�an
organisation founded in 1930
and led by Elijah Mohammed
from 1934 until 1975

Retrospective140

When released from gaol in 1952, Malcolm took the symbol ‘X’ to signify the

absence of an inherited African name and worked to spread both the religious

and the political goals of Islam throughout the United States. He was a powerful

speaker and succeeded in recruiting thousands of young African Americans to

the Nation of Islam. By 1963, around 30 000 African Americans had joined the

Nation of Islam and Malcolm X had become its best-known spokesperson.

. . . I don’t go along with any kind of non-violence unless everybody’s going to be

non-violent. If they make the Ku Klux Klan non-violent, I’ll be non-violent, if they

make the White Citizens’ Council non-violent, I’ll be non-violent. But as long as

you’ve got somebody else not being non-violent, I don’t want anybody coming to

me talking any non-violent talk . . .

You get freedom by letting your enemy know that you’ll do anything to get your

freedom, then you’ll get it. It’s the only way you’ll get it . . . fight them, and you’ll

get your freedom . . .

Malcolm X, quoted in N. Smith, The USA 1917–1980,
Oxford University Press, Oxford, 1996, p. 83.

Initially, Malcolm X’s views differed markedly from those of Martin Luther

King. Malcolm X wanted the separation of races, not integration. He spoke

of King’s non-violence as ‘the philosophy of the fool’ and called for a ‘black

revolution’ to overthrow white power. Malcolm X made fun of King’s famous

‘I have a dream’ speech, with the line, ‘While King was having a dream, the

rest of us Negroes are having a nightmare’.

The Black Panthers was another militant political group. Founded by

Huey Newton and Bobby Seale in October 1965, it produced a ten-point

program advocating the restructuring of American society to achieve social,

political and economic equality for African Americans. The Black Panthers

patrolled black communities to protect their residents from abuses of police

power. However, by the late 1970s, problems and divisions within the party

had eroded its political force.

Violence and frustration
In the mid to late 1960s, riots broke out in many United States’ cities. Malcolm

X was assassinated in New York on 21 February 1965. This provoked riots in

over 100 cities.

On 11 August 1965, two weeks after President Johnson had signed the Voting

Rights Act, Los Angeles police arrested Marquette Frye, an African American,

for drink driving. During the arrest, in the black ghetto area of Watts, one of

the police officers aimed a gun at Frye, as if to shoot him. This event provoked

six days of rioting as African Americans gave vent to their outrage at the

ongoing injustices they had to face. Rioters burned cars and shopping areas

and shot police and firefighters. The Watts riots led to 34 deaths, hundreds of

people injured and thousands arrested. When asked what Martin Luther King

would think of their actions, one of the rioters replied ‘Martin Luther Who?’

In 1966, riots broke out in Chicago, Cleveland, Dayton, Milwaukee and San

Francisco. The government sent in the National Guard to restore order in

all of those cities. In 1967, African American frustration exploded in even

more violent riots in Newark and Detroit resulting in the shooting of nearly

83 African Americans.

SOURCE QUE S TION

List the three main ideas that

Malcolm X was putting forward

with his words in source 7.18.

SOURCE QUE S TION

List the three main ideas that

Malcolm X was putting forward

with his words in source 7.18.

Source 7.18

Malcolm X’s view on the best

means of achieving freedom for

African Americans

Source 7.18

Malcolm X’s view on the best

means of achieving freedom for

African Americans

Black Panthers W�a militant
political party established by
Huey Newton and Bobby Seale
in 1966 with the goal of gaining
equality for African Americans.
Its members dressed in black
trousers, black leather jackets,
black berets and blue shirts.

Black Panthers W�a militant
political party established by
Huey Newton and Bobby Seale
in 1966 with the goal of gaining
equality for African Americans.
Its members dressed in black
trousers, black leather jackets,
black berets and blue shirts.

ghetto W�an area of a city where
a minority group lives
ghetto W�an area of a city where
a minority group lives

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 141

Now, let’s get to what the white press has been calling riots. In the first place,

don’t get confused with the words they use like ‘anti-white’, ‘hate’, ‘militant’, and

all that nonsense like ‘radical’ and ‘riots’. What’s happening is rebellion not riots . . .

The extremists in this country are the white people who force us to live the way

we live. We have to define our own ethic. We don’t have to (and don’t make any

apologies about it) obey any law that we didn’t have a part to make, especially if

that law was made to keep us where we are. We have the right to break it.

Published in Notes and Comment, a newsletter by the SNCC, Chicago; reproduced
in Globe Fearon Historical Case Studies, The Civil Rights Movement, op. cit., p. 109.

SOURCE QUE S TION

How did the views put forward by Carmichael in source 7.19 differ from those of

Martin Luther King? What would they have agreed on?

On 4 April 1968, an assassin killed Martin Luther King in Memphis,

Tennessee, where King had gone to support a strike by African American

garbage collectors. The riots in 100 American cities in response to his shooting

reflected the attitude that non-violence was ineffective.

Achievements of the Civil Rights Movement
Martin Luther King’s birthday — 15 January — is now a national holiday in

the United States on the third Monday of January each year. This is indic-

ative of a number of successes in the Civil Rights Movement.

By the early 1960s, few Americans could ignore the injustices

committed against the African American population.

The civil rights activism of the 1950s and 1960s brought about

increasingly more meaningful and effective civil rights legislation.

The 1968 Civil Rights Act made it illegal to discriminate, on the basis

of race, religion, sex and national origin, against anyone trying to

finance, rent or purchase accommodation. It also provided protection

for civil rights activists. It was President Johnson’s third piece of civil

rights legislation and demonstrated his commitment to this issue.

In 1967, the United States Supreme Court overruled state laws

forbidding inter-racial marriages. In the following year, Columbia

Pictures released Guess Who’s Coming to Dinner?. The film starred

three major Hollywood actors and dealt sympathetically with the

romance between an African American doctor and the daughter of

an upper middle-class white couple. It was an indicator of a changed

outlook on race relations.

In 1965, only 100 African Americans had been elected to public office.

By 1989, 7200 African Americans had been elected to public positions

as sheriffs, mayors and members of Congress.

By the end of the Civil Rights Movement, significant numbers of the

United States’ white population accepted the idea of equal political and

legal rights for African Americans. They were slower to accept their rights

to social and economic equality, especially if it came at the cost of higher

taxation. Segregated neighbourhoods continued to be a feature of American

cities. Integrated public schools saw many whites seek private schooling.

In the 1970s, membership of the Ku Klux Klan increased by 300 per cent.

W

W

W

W

SOURCE QUE S TION

How did the views put forward

by Carmichael in source 7.19

differ from those of Martin

Luther King? What would they

have agreed on?

SOURCE QUE S TION

How did the views put forward

by Carmichael in source 7.19

differ from those of Martin

Luther King? What would they

have agreed on?

Source 7.19

Extract from a speech made
by Stokely Carmichael on
28 July 1966

Source 7.19

Extract from a speech made
by Stokely Carmichael on
28 July 1966

Retrospective142

Thirty years later, African Americans continued to experience disadvan-

tage, resulting from poverty and discrimination. The average wage for an

African American was just over half the average for a white person. Nearly

three times as many African Americans lived below the poverty line. African

American men received prison sentences at seven times the rate of white men.

Fifteen states denied ex-offenders the vote, thus disenfranchising 13 per cent

of African American men nationwide, and nearly 40 per cent in some states.

Racial tensions and divisions continued. During their 1992 Los Angeles

trial, video footage showed four police officers beating up African American

Rodney King, whom they had stopped for a supposed traffic violation. When

the jury acquitted the officers, Los Angeles erupted into days of rioting —

resulting in deaths, injuries and destruction of property.

In the 1950s and 1960s, African American Civil Rights activists pressured

successive US governments and presidents to recognise and protect their

rights. By the early twenty-first century, overt racism had become unacceptable

and African Americans played increasingly significant roles in all aspects

of US life. African American, Lieutenant–General Colin Powell was the

Chair of the Joint Chiefs of Staff from 1989 to 1993. In 2001 he became US

Secretary of State. His successor, in 2005, was Condoleeza Rice, an African

American born in Birmingham, Alabama, who had previously held the

position of National Security Adviser.

At the same time, the Civil Rights Movement has yet to eradicate preju-

dices built up across many generations. In late 2006, white students in Jena,

Louisiana, hung nooses from an oak tree after another student had gained

permission for black students to share with them its use as a meeting place.

Source 7.20

Photograph showing par t of the

1992 riots in Los Angeles

Source 7.20

Photograph showing par t of the

1992 riots in Los Angeles

SOURCE QUE S TION

How might each of the
following groups have
responded to the source 7.20
photograph?

(a) the Los Angeles police

(b) the jury

(c) the African American
community

SOURCE QUE S TION

How might each of the
following groups have
responded to the source 7.20
photograph?

(a) the Los Angeles police

(b) the jury

(c) the African American
community

Chapter 7 W The Civil Rights Movement in the USA in the 1950s and 1960s 143

Meeting objectives and outcomes

Key features, issues, individuals and events P1.1 and P1.2

1. Choose one of the following individuals or groups who participated in

the Civil Rights Movement. Carry out research into:

W� the individual’s or group’s attitude towards the Civil Rights

Movement

W� the role played within this movement and methods used

W� the legacy of the individual/group in relation to achievements in

civil rights.

Use desktop publishing to record your findings on an A4 sheet for

display on the class noticeboard.

Ella Baker, Stokely Carmichael, the Congress of Racial Equality (CORE),

Angela Davies, Elizabeth Eckford, Medgar Evers, Fannie Lou Hamer,

Martin Luther King, Malcolm X, Thurgood Marshall, the NAACP, Huey

Newton, Rosa Parks, A. Philip Randolph, the SCLC, the SNCC

Change and continuity over time P2.1

2. Essay: Evaluate the extent to which African Americans overcame the

inequities they faced in the period 1950–70. (P2.1)

3. View the 1968 film Guess Who’s Coming to Dinner?. What does this

indicate about change or continuity in relation to attitudes towards

civil rights for African Americans in the 1960s? (P2.1)

4. Find out how and why Malcolm X’s attitudes and methods changed

over the period 1963 to 1965. Summarise your findings in the form of

an article suitable for publication in a magazine such as the Sydney

Morning Herald’s ‘The Good Weekend’. Include a headline which will

interest your readers and also highlight the nature of the change in

Malcolm X’s attitudes and methods. (P2.1)

The process of historical inquiry P3.1–P3.5

5. Class activity: Watch Richard Pearce’s 1990 film The Long Walk Home.

(a) List the questions you would ask to consider the film’s value as a

historical source. (P3.1)

(b) Use the list of questions and your responses to questions (i)–(v) in

preparation for the written task in part (c).

(i) What factual information does the film present? (P3.2)

(ii) What key themes does the film explore? How are these

related to the Civil Rights Movement? (P3.2)

(iii) What does the film indicate about the cultural, economic,

political and/or social ideas and beliefs that influenced

people’s different attitudes? (P3.2, P3.4)

(iv) What can you deduce about the filmmaker’s perspective on

and interpretation of the Civil Rights Movement? (P3.4)

(v) What are the strengths/weaknesses of this film for people

wanting to understand civil rights issues in the 1950s? (P3.3)

(c) Write a two-page response to the following question: How useful

and reliable is The Long Walk Home as a historical source on the

Civil Rights Movement? (P3.3, P3.5)

Retrospective144

6. Analyse the passage in source 7.21 by answering the following

questions. (P3.3, P3.4)
(a) What is the writer’s attitude to the Supreme Court’s decision?

Which words indicate this?
(b) What do you think are the ‘moral and ethical . . . standards’ that

the writer is referring to?
(c) Why do you think he makes reference to a ‘well bred, cultured

southern white woman and her blue-eyed golden-haired little girl’?
(d) What does he intend to do in response to the ruling?
(e) What other groups would be likely to support the viewpoint he

expresses?

Source 7.21

Extract from Black Monday, written by Mississippi judge Tom Brady after the NA ACP
victory in the Brown case

. . . when a law transgresses the moral and ethical sanctions and standards
of the mores [customs], invariably strife, bloodshed and revolution follow
in the wake of its attempted enforcement. The loveliest and purest of God’s
creatures, the nearest thing to an angelic being that treads this terrestrial ball,
is a well-bred, cultured southern white woman or her blue-eyed, golden-haired
little girl . . . We say to the Supreme Court and to the northern world, ‘You shall
not make us drink from this cup’ . . . We have, through our forefathers, died

before for our sacred principles. We can, if necessary, die again.

Tom Brady, quoted in N. Smith, The USA 1917–1980,
Oxford University Press, Oxford, 1996, p. 69.

7. Research Claudette Colvin’s story of the Montgomery bus boycott.
How does it differ from the accepted version of this event? Visit the
website for this book and click on the Claudette Colvin weblinks for

this chapter for some sources of information.

Communicating an understanding of history P4.1 and P4.2

8. Group work: Divide into groups of three or four students. Use
your knowledge of the Civil Rights Movement to create a roleplay
illustrating one of the following ideas: boycott, civil disobedience,
civil rights, democracy, militancy, racism, segregation. (P4.1 and P4.2)

9. Your task is to write a speech to be given by a lawyer. Choose to be
the lawyer who is prosecuting the perpetrator/s of the murder of
one of the following:

Chaney, Goodman and Schwerner
Martin Luther King
Malcolm X.

Your speech should outline the nature of the crime, the events and
attitudes that led to its occurrence and some information about the
significance of the victim/s. (P4.2)

10. Group work: Create a poster encouraging university students to
participate in one of the civil rights protests. You will need to
consider the words and pictures that will motivate your audience to
become involved. (P4.2)

11. The traditional Negro spiritual, ‘We shall overcome’, became the
anthem of the Civil Rights Movement. Divide the class into groups
and allocate each group one of its verses to perform, accompanied
by a well-known recording of it, such as that of Joan Baez. (P4.1)

W

W

W

  • Chapter 7 The Civil Rights Movement in the USA in the 1950s and 1960s
  • Introduction
  • Segregation in the USA in the 1950s
  • Martin Luther King and the use of non-violence to achieve civil rights objectives
  • The development of more radical methods and individuals in the 1960s
  • Achievements of the Civil Rights Movement
  • Meeting objectives and outcomes

M ASS I N C A R C E R AT I O N I N T H E

AG E O F CO LO R B L I N D N E SS

N E W Y O R K T I M E S B E S T S E L L E R

MICHELLE ALEXANDER
W I T H A N E W P R E F A C E B Y T H E A U T H O R

T H E

N E W

J I M

C R OW

10th
ANNIVERSARY

EDITION

Seldom does a book have the impact of The New Jim Crow.
Since it was fir t published in 2010, it has been the winner of numerous

awards and has spent nearly 250 weeks on the New York Times bestseller

list. It has been cited in judicial decisions, read in countless faith-based

and secular book clubs, and adopted in campus-wide and community-wide

reads. Most important, it has inspired artists, philanthropists, policymak-

ers, community leaders, and a whole generation of racial justice activists

motivated by Michelle Alexander’s searing indictment of our criminal jus-

tice system and her unforgettable argument that “we have not ended racial

caste in America; we have merely redesigned it.”

Called “stunning” by Pulitzer Prize–winning historian David Levering

Lewis, “invaluable” by the Daily Kos, “explosive” by Kirkus Reviews, and

“profoundly necessary” by the Miami Herald, The New Jim Crow has been

deemed “undoubtedly the most important book published in this century

about the U.S.” (The Birmingham News).

The New Press is now proud to issue a tenth-anniversary edition with

a new preface by Michelle Alexander discussing all that has changed and

remained the same in our criminal justice system, and our democracy as a

whole, since she published this book a decade ago.

“Devastating.”
—Forbes

“The bible of a social movement.”
—San Francisco Chronicle

“An instant classic.”
—Cornel West

“An extraordinary book.”
—Marian Wright Edelman

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Michelle Alexander is a highly acclaimed civil rights lawyer,

advocate, and legal scholar. She has served as an associate profes-

sor of law at Stanford Law School and the Moritz College of Law

at The Ohio State University. Throughout her legal career, she has

won numerous awards and fellowships, including being named a

Soros Justice Fellow and a Senior Fellow for the Ford Foundation.

Prior to joining academia, Alexander engaged in civil rights litiga-

tion in both the private and nonprofit sectors, ultimately serving

as the director of the Racial Justice Project for the ACLU of North-

ern California, where she helped to launch a national campaign

against racial profiling. Currently, she is a visiting professor at

Union Theological Seminary and a contributing opinion writer

for The New York Times.

Alexander is a graduate of Stanford Law School and Vanderbilt

University. She has clerked for Justice Harry A. Blackmun on the

U.S. Supreme Court and for Chief Judge Abner Mikva on the D.C.

Circuit of the U.S. Court of Appeals and has appeared as a com-

mentator on CNN, MSNBC, NPR, and Democracy Now! among

other media outlets. The New Jim Crow is her first book. For more

information, visit www.newjimcrow.com.

Royalties from the publication

of the 10th anniversary edition of The New Jim Crow

will be donated to organizations courageously working

for racial justice and the liberation of all

For information regarding supported organizations

and to donate directly to the MOSAIC Fund for Justice

please go to newjimcrow.com/donate

T HE N E W J IM   C ROW
Mass Incarceration in the

A ge of Colorblindness

T E N T H A N N I V E R S A R Y E D I T I O N

M I C H E L L E A L E X A N D E R

For Nicole, Jonathan, and Corinne

Contents

Preface to the Tenth Anniversary Edition ix

Foreword by Cornel West xlvii

Preface li

Introduction 1

The Rebirth of Caste 25

The Lockdown 75

The Color of Justice 121

The Cruel Hand 175

The New Jim Crow 221

The Fire This Time 275

Acknowledgments 327

Notes 331

Index 365

Preface to the Tenth Anniversary Edition

Ten years have passed since The New Jim Crow was first published. It has been an astonishing decade. Everything and nothing has
changed.

When I was researching and writing the book, Barack Obama had

not yet been elected president of the United States. I was in disbelief

that our country would actually elect a black man to be leader of the

so-called free world. As the election approached, I felt an odd sense of

hope and dread. I hoped against all reason that we would actually do

it. But I also knew that, if we did, there would be a price to pay. Every-

thing I knew about this country through experience and study told me

that we, as a nation, did not fully understand the nature of the moment

we were in. We had recently birthed another caste system—a system of

mass incarceration—that caged millions of poor people and people of

color and relegated millions more to a permanent second-class status.

Yet we were in deep denial that a new system of racial and social con-

trol existed, and most of us—even those who cared deeply about racial

justice—did not seem to understand that powerful racial dynamics

and political forces were at play that made much of our racial prog-

ress illusory. We had not faced our racial history and could not tell

the truth about our racial present, yet growing numbers of Americans

wanted to elect a black president and leap into a “colorblind” future, a

x P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

place where rhetoric of “hope and change” might be enough to carry

us to some promised land.

I stood in line with hundreds of others to cast my ballot in early

voting. I remember the jubilance in the air, black people smiling and

nodding at each other. Parents brought their children to the voting

booth to watch them cast what they hoped would be an historic vote. I

wanted Barack Obama to win. And I feared it. I worried that, if a black

man were elected president of the United States, our nation would sink

further into denial, and no one would listen to the message that I felt

desperate to convey: We are not free of our racial history. To the con-

trary, a new caste system has been born again in America, a system of

mass incarceration unlike anything the world has ever seen. We are

not saved.

I was right to worry.

Many people assume that The New Jim Crow was an instant best-

seller. Quite the opposite is true. The book did not hit the bestseller

lists until it was released in paperback—two years after the original

publication date. I spent those early years traveling from coast to coast

begging people to listen, speaking in half-empty church basements

and to small groups of activists and students. The book was first pub-

lished in January 2010, one year after President Obama’s inauguration.

It was a time when our country was awash in “post-racialism.” Black

History Month events revolved around “how far we’ve come.” Many

in the black community and beyond felt that, if Obama could win the

presidency, anything was possible. Acknowledgments were made that

much work remained to be done, yet a mantra emerged: “We’ve come a

long way, and still have a long way to go. But we’re on the right track.”

Few people wanted to hear that, despite appearances, since the end of

slavery our nation has remained trapped in a cycle of reform, backlash,

and reformation of systems of racialized social control.

Things have changed since then. As I write this, Donald Trump

is president of the United States. For many, this feels like whiplash.

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x i

After eight years of Barack Obama in the White House—a man who

embraced the rhetoric (though not the politics) of the Civil Rights

Movement—we now have a president who embraces the rhetoric and

the politics of white nationalism. This is a president who openly stokes

racial animosity and even racial violence, who praises dictators (and

likely aspires to be one), who behaves like a petulant toddler on Twit-

ter, and who has a passionate, devoted following of millions of people

who proudly say they want to “make America great again” by taking

us back to a time that we’ve left behind. We are now living in an era of

unabashed racialism, a time when many white Americans feel free to

speak openly of their nostalgia for an age when their cultural, politi-

cal, and economic dominance could be taken for granted—no apolo-

gies required. It can no longer be denied that the colorblind veneer of

early twenty- first- century American democracy was just that: a veneer.

Right beneath the surface lay an ugly reality that many Americans

were not prepared to face.

In so many respects, this book was written in a different world. It

was written before a seventeen-year-old black teenager named Tray-

von Martin was killed in a gated community by a self- appointed

“neighborhood watchman” named George Zimmerman. Zimmerman’s

acquittal for Martin’s murder ignited demonstrations in cities across

the country and inspired three black women to launch the hashtag

# BlackLivesMatter—a simple declaration that would rock the nation

and be heard around the globe.

The New Jim Crow was also written before police killings of unarmed

black people became a regular staple of the daily news. It was before

Eric Garner was choked to death, on video, by a police officer in New

York who wanted to arrest him for selling loose cigarettes; before

twelve-year-old Tamir Rice was killed in a park by Cleveland police

officers within moments of their arrival where the child was playing;

before John Crawford was shot and killed by police while he was shop-

ping in a Walmart in Ohio; before Kajieme Powell was shot down by

x i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

police while holding a butter knife; before a Chicago police officer fired

sixteen shots into Laquan McDonald’s back; before another Chicago

cop shot Rekia Boyd; before Freddie Gray was killed, his spinal cord

severed in the back of a Baltimore police van; before Atatiana Jeffer-

son was shot to death by a police officer from outside her bedroom

window in Fort Worth, Texas. It was before Sandra Bland died in a

Texas jail after being arrested for not using her turn signal, and before

Kalief Browder committed suicide after being imprisoned and abused

at Rikers Island for three years, unable to make bail, after being falsely

accused of stealing a backpack. This tragic list could go on.

Most importantly, this book was written before the uprisings. It was

written before Michael Brown was shot down by the police, and the

town of Ferguson, Missouri, courageously rose up. Every system of

injustice depends on the silence, paralysis, confusion, and cooperation

of those it seeks to eliminate or control. When the people of Ferguson

stood up to the police violence, harassment, and abuse their commu-

nity had endured for decades and remained standing even as the tanks

rolled in, everything changed.

A wave of racial justice protest and activism swept across this

nation, electrifying the country and much of the world. Bold, coura-

geous racial justice movements burst onto the scene, radically altering

the terms and boundaries of our nation’s political debates and forcing a

conversation about our racial history, our racial present, and our racial

future that was long overdue—a conversation that rightfully places

criminal injustice at its center rather than at its margins.

I did not, and could not, know when writing this book that our

nation would soon awaken violently from its brief colorblind slumber.

In the final chapter, I did predict that uprisings were in our future,

and I wondered aloud what the fire would look like this time. What

actually occurred in the years that followed was, to paraphrase James

Baldwin, more terrible and more beautiful than I could have imagined.

We now have white nationalist movements operating openly online

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x i i i

and in many of our communities; they’re celebrating mass killings and

recruiting thousands into their ranks. We have a president who routine-

ly unleashes hostile tirades against black and brown people— calling

Mexican migrants “murderers,” “rapists,” and “bad people,” referring

to developing African nations as “shithole countries,” and smearing

the majority- black city of Baltimore as a “disgusting, rat and rodent

infested mess.” Millions of Americans are cheering, or at least tolerat-

ing, these racial hostilities. And yet, in the midst of all of this, we also

have vibrant racial justice movements led by new generations of activ-

ists who are working courageously at the intersections of our systems

of control, as well as growing movements against criminal injustice

led by those who are directly impacted by mass incarceration. Many

of these movements aim to redefine the meaning of justice in America.

A decade ago, much of this progress seemed nearly unimaginable.

When this book was first released, there was relatively little racial

justice organizing, and “mass incarceration” was not a widely used

term. Back then, the Congressional Black Caucus, as well as most civil

rights organizations, did not include criminal justice issues among its

top priorities. Little funding could be found for work challenging the

enormous punishment bureaucracy controlling communities of color.

The rare mainstream voices calling for reform were usually academics

or policy “experts.” Those most impacted by police violence and the

disastrous War on Drugs were rarely seen or heard in political debates.

Today, there is bipartisan support for some prison downsizing,

and hundreds of millions of philanthropic dollars have begun to flow

toward criminal justice reform. A vibrant movement led by formerly

incarcerated and convicted people is on the rise—a movement that

has challenged or repealed disenfranchisement laws in several states,

mobilized in support of sentencing reform, and successfully organized

to “ban the box” on employment applications that discriminate against

those with criminal records by asking the dreaded question: “Have you

ever been convicted of a felony?” Promising movements for restorative

x i v P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

and transformative justice have taken hold in numerous cities. Cam-

paigns against cash bail have gained steam. Marijuana legalization has

swept the nation, with fifteen states having decriminalized or legal-

ized cannabis since 2010. And this book, which some predicted would

never get an audience, wound up spending 246 weeks on The New York

Times bestseller list and has been used widely by faith groups, activ-

ists, educators, and people directly impacted by mass incarceration

inside and outside prisons. Over the past ten years, I’ve received thou-

sands of letters—and tens of thousands of emails—from people in all

walks of life who have written to share how the book changed them or

how they have used it to support consciousness-raising or activism in

countless ways.

Everything has changed. And yet nothing has.

The politics of white supremacy, which defined our original consti-

tution, have continued unabated—repeatedly and predictably engen-

dering new systems of racial and social control. Just a few decades

ago, politicians vowed to build more prison walls. Today, they promise

border walls. As the first chapter of this book describes, the political

strategy of divide, demonize, and conquer has worked for centuries in

the United States—since the days of slavery—to keep poor and work-

ing people angry at (and fearful of) one another rather than uniting to

challenge unjust political and economic systems. At times, the tactics

of white supremacy have led to open warfare. Other times, the divi-

sions and conflicts are less visible, yet lurk beneath the surface.

At the time I was writing this book, a war was being waged on com-

munities of color, yet few could see it for what it was. The politics of

white supremacy had been driven temporarily underground. Today,

racial bigotry, fear mongering, and scapegoating are no longer subter-

ranean in our political discourse; the dog whistles have been replaced

by bullhorns. But contrary to what many people would have us believe,

what our nation is experiencing today is not an “aberration.” The poli-

tics of “Trumpism” and “fake news” are not new; they are as old as

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x v

the nation itself. The very same playbook has been used over and over

in this country by those who seek to preserve racial hierarchy, or to

exploit racial resentments and anxieties for political gain, each time

with similar results.

Back in the 1980s and 90s, Democratic and Republican presidents

leaned heavily on racial stereotypes of “crack heads,” “crack babies,”

“super- predators,” and “welfare queens,” to mobilize public support

for the War on Drugs, a “get- tough” movement, and a prison- building

boom. Today, the rhetoric has changed, but the game remains the same.

As I recently wrote in the introduction to the Spanish- language ver-

sion of this book, public enemy number one in the 2016 election was

a brown- skinned immigrant, an “illegal,” a “terrorist,” or a “caravan”

full of people who want to take your job, rape your daughter, or com-

mit an act of terror. As Trump put it: “When Mexico sends its people,

they’re not sending their best. They’re sending people that have lots of

problems, and they’re bringing those problems. . . . They’re bringing

drugs. They’re bringing crime. They’re rapists.” He promised to solve

this imaginary crisis through mass deportation and building a wall

between the United States and Mexico. He also insisted that his politi-

cal opponent, Hillary Clinton, wanted “millions of illegal immigrants

to come in and take everybody’s jobs.” And he blamed domestic terror

attacks in New Jersey and New York on “our extremely open immi-

gration system,” which, he argued, allows Muslim terrorists into our

country.

The fact that Trump’s claims were demonstrably false did not impede

his rise, just as facts were largely irrelevant at the outset of the War on

Drugs. It didn’t matter back then that studies consistently showed that

people of color and whites were equally likely to use and sell illegal

drugs. Black men were still labeled the enemy. Nor did it matter, when

the drug war was taking off, that nearly all the sensationalized claims

that crack cocaine was some kind of “demon drug,” drastically more

harmful than powder cocaine, were false or misleading. Black people

x v i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

charged with possession of crack in inner cities were still punished

far more harshly than white people in possession of powder cocaine

in the suburbs. And it didn’t matter that most welfare recipients were

white—not black—and that African Americans weren’t actually

taking white people’s jobs or college educations in significant numbers

through affirmative action programs. Getting tough on “them”—the

racially defined “others” who could easily be used as scapegoats and

cast as the enemy—was all that mattered. Facts were treated as largely

irrelevant then. As they are now.

Today, the stakes are as high as they’ve ever been. Nearly everyone

seems aware that our democracy is in crisis, yet few seem prepared to

reckon with the reality that removing Trump from office will not rid

our nation of the social and political dynamics that made his election

possible. No issue has proved more vexing to this nation than the issue

of race, and yet no question is more pressing than how to overcome

the politics of white supremacy—a form of politics that not only led to

an actual civil war but that threatens our ability ever to create a truly

fair, just, and inclusive democracy. We find ourselves in this dangerous

place not because something radically different has occurred in our

nation’s politics, but because so much has remained the same.

It is tempting, in view of all that has transpired over the past ten

years, to write an updated version of The New Jim Crow that would

account for all that has occurred. The new, revised version would

describe how and why our nation swung dramatically from what Marc

Mauer memorably termed “a race to incarcerate”—propelled by bipar-

tisan wars on “drugs” and “crime”—to a bipartisan commitment to

downsizing our prison system during the same period of time that a

liberal, black president drastically expanded the system of mass depor-

tation and mass surveillance.

In particular, the revised book would explore the opioid crisis and

marijuana legalization—specifically the many ways our drug policy

debates rapidly changed once drug addiction became perceived as a

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x v i i

white problem and wealthy white investors became interested in prof-

iting from the emerging legal cannabis industry. Many of the reversals

have been quite dramatic. For example, former Republican speaker of

the House of Representatives John Boehner stated in 2011 that he was

“unalterably opposed to decriminalizing marijuana” but by the end

of 2018, he had joined the board of directors of a cannabis company.

The revised book would also discuss the strengths, limitations, and

dangers of recent criminal justice reform efforts, such as the Trump

administration’s First Step Act, and it would reflect upon Obama’s

complicated legacy with respect to criminal justice reform. Obama

was the first sitting president to visit a federal corrections facility, the

first to oversee a drop in the federal prison population in more than

thirty years, and he granted clemency to nearly two thousand peo-

ple behind bars—the highest total for any president since President

Harry Truman. His administration enacted significant policy changes,

including, among others, legislation reducing sentencing disparities

involving crack and powder cocaine, a temporary ban on federal con-

tracts with private prisons, and limitations on the transfer of military

equipment to local police departments.

And yet, it sometimes appeared that Obama was reluctant to

acknowledge the depth and breadth of the structural changes required

to address police violence and the prevailing systems of racial and

social control. For example, when black Harvard professor Henry Lou-

is Gates was arrested in his own home for no reason, Obama respond-

ed to the national furor and media frenzy by inviting Gates and the

arresting officer to a “beer summit” at the White House to work things

out over drinks and peanuts, as though racial profiling is little more

than an interpersonal dispute that can be resolved through friendly

dialogue. Most troubling, the modest criminal justice reforms that

were achieved during the Obama administration coincided with the

expansion of the system of mass deportation. At the same time that the

administration was phasing out federal contracts for private prisons,

x v i i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

it was making enormous investments in private detention centers for

immigrants, including the granting of a $1 billion contract to Correc-

tions Corporation of America, the nation’s largest prison company, to

build a massive detention facility for women and children seeking asy-

lum from Central America.

The new, expanded version of this book would describe the relation-

ship between the politics of mass incarceration and mass deportation

and the role of prison profiteering in the expansion of these systems,

and it would demonstrate how predictable cycles of racial progress,

backlash, and reformation of systems of control continue to this day.

But telling the story of everything that has changed and remained the

same would require a new book entirely. There is no way to “update”

this book with new facts, data, and political context in a manner that

would do justice to the magnitude of what has occurred.

I hope, however, that The New Jim Crow will continue to be useful in

the years to come, as our nation is forced to reckon with racial realities

that it has long refused to face. In many respects, the core thesis of this

book is more relevant today than it was ten years ago. It is now easier

to see the patterns, the cycles, the predictable rhetoric, and the ways in

which systems of racial and social control adapt, morph, rebound, and

are reborn. Rather than attempt to rewrite this book for our present

moment, I will let it stand for the moment in which it was written—a

moment that has much to teach us about where we are and where we’re

headed if we fail to face our racial history, our racial present, and our

collective future with courage, honesty, and a fierce commitment to

honoring the dignity and value of us all.

The only major change to the original text relates to language. I’ve

eliminated terms such as felon, ex-offender, and inmate, except when

those labels or classifications are being explained or are relevant to

a point being made in the text. When I was researching and writing

the book, those terms were widely used by policymakers, journalists,

academics, and activists as they described and combatted the system of

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x i x

mass incarceration. In recent years, formerly incarcerated and convict-

ed people have challenged the use of these labels and offered alterna-

tives such as “returning citizen.” A similar effort has been under way

to persuade journalists and others to abandon use of the term illegals

to describe people who are in this country without proper documenta-

tion, and to use the term undocumented immigrant instead. Although

some have argued that it’s cumbersome to say “formerly incarcerated”

rather than “felon,” or inconvenient to say “a woman in prison” rath-

er than “inmate,” I do not see why anyone who values the dignity of

those who have been caged would complain about the “difficulty” or

“inconvenience” of uttering a few extra words to emphasize someone’s

humanity during the era of mass incarceration. There are many things

that are difficult to manage during this period of our nation’s history;

avoiding terms that reduce people to prison labels is not one of them.

Although I’ve chosen not to make other major changes to the text, I

do want to answer here a few of the most common questions that I’ve

been asked over the years as I’ve spoken in prisons and re- entry cen-

ters, colleges and universities, and at legal, faith, and activist gather-

ings. In most of these places, I’ve been asked some version of the same

three questions. They deserve a meaningful response.

Black Men

The first is: why focus on black men? This question is usually asked

by black women. They want to know what inspired me to write a book

specifically focused on the experience of black men in the War on

Drugs. Some women express deep gratitude for this approach. After

reading the book, they say, they were able to view their relationships

with their husbands, partners, fathers, uncles, brothers, cousins, and

sons through a different lens. One middle-aged black woman told me

through tears that she had not spoken to her father in more than thirty

years, but after reading this book she visited him in prison for the

x x P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

first time since childhood. She realized that she had blamed her father

for leaving her in her youth; the book helped her to see how his dis-

appearance was largely a product of forces and systems beyond his

control. Her experience is not unique. Over the years, many women

have shared with me that reading The New Jim Crow allowed them

to release some of the hurt and anger they felt toward black men in

their lives—men they felt had betrayed them by returning to prison

after promises not to do so, or who had failed to secure jobs or hous-

ing upon their release and were therefore unable to help support their

families. As one woman put it, “I’m still angry that he can’t seem to get

a good job, and that he’s been rearrested twice, and that I’m the one

who has to feed our kids and bail him out. But now I don’t just blame

him. I see this whole system is working to keep us down. And I want

to do something about it.”

Some women, however, have expressed concern that the book may

send the message to readers that the experience of women in the era of

mass incarceration is less important or less worthy of public concern.

It is certainly understandable why some would feel this way. In recent

years, the overwhelming majority of funding and media attention has

flowed toward addressing police killings of unarmed black men and

their staggering incarceration rates; relatively little attention has been

paid to the experience of black women.

I chose to focus on the experience of black men at a time when little

attention was paid to the devastating impact of the drug war on black

communities. I was inspired to write the book due to my experiences

as a civil rights lawyer at the ACLU of Northern California, in the

late 1990s and early 2000s, investigating patterns of drug law enforce-

ment in communities of color and representing victims of racial profil-

ing. The overwhelming majority of those who contacted my office to

report being stopped, frisked, searched, or brutalized by the police

were black men. When I began researching and writing this book, the

number of people in prisons and jails for drug offenses had increased

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x i

more than 1,000 percent in thirty years, and black men were being

swept into the system for minor drug crimes at grossly disproportion-

ate rates. Stunningly, one in three black men had a felony record in

2010 and it was predicted that if current trends continued, one in three

black men would spend time in prison and the vast majority would

acquire a criminal record during their lifetime. It seemed reasonable

to me back then to focus on those who had been the primary targets

of the war and whose experience I knew best. In the introduction, I

acknowledged the limitations of my approach and urged other scholars

and advocates to pick up where I left off.

In recent years, I’ve been thrilled to see the extraordinary activism

and scholarship of those who have worked to move the experience of

women in the era of mass incarceration from the margins to the center.

Books such as Andrea Ritchie’s Invisible No More: Police Violence Against

Black Women and Women of Color and Becoming Ms. Burton: From Pris-

on to Recovery to Leading the Fight for Incarcerated Women by Susan

Burton have made invaluable contributions to movements challenging

criminal injustice. Campaigns such as #SayHerName have challenged

the erasure of women’s experience from media coverage and advocacy

regarding police violence. Groundbreaking advocacy by organizations

including A New Way of Life, BYP100, Families for Justice as Healing,

and Essie Justice Group have begun to reshape the narrative, expos-

ing the ways in which mass incarceration has a devastating impact on

women and their families—and by extension, their communities.

Although men continue to comprise 90 percent of the prison popu-

lation, women’s incarceration has increased 800 percent over the past

thirty years, and the incarceration rate for black women is double that

of white women. Today, women are more likely than men to be impris-

oned for drug- related offenses—a particularly troubling reality given

that 62 percent of incarcerated women have minor children, many of

whom are forced into foster care or left with relatives who scarcely

have the means to care for them. The separation of families is now

x x i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

widely understood as a human rights crisis at the border, yet compara-

tively little attention has been paid to the destruction of black families

in the era of mass incarceration. One in four women in the United

States has a loved one behind bars, and the figure is one in two for

black women. When men are locked up, the women who love them

are sentenced too—to social isolation, depression, grief, shame, cost-

ly legal fees, far-away prison visits (often with children in tow), and

the staggering challenges of helping children overcome the trauma of

parental incarceration. When loved ones are released from their cages,

it is often women who are faced with the daunting task of supporting

them as they struggle and often fail in a system rigged against them.

Violence

The second question that I’m frequently asked is: what about violent

crime? I expected this query. While the book discusses violent crime

in several places, I chose to focus my attention on the exponential

increase in arrests, prosecutions, and sentences for nonviolent crimes

and drug offenses. I briefly considered devoting a full chapter to vio-

lent crime and its relationship (or lack thereof) to the birth of this sys-

tem but ultimately decided against it. My reason was simple: I thought

the time was overdue for public attention to be focused on state vio-

lence, rather than violence committed by individuals in impoverished,

segregated communities suffering from economic collapse.

For decades, the media had been awash in stories about violence in

ghettoized communities, portraying those communities as nothing but

drug-infested war zones. The “super-predator” myth—the false notion

that a generation of young black men “with no conscience, no empa-

thy” were rising up to terrorize the nation—still held sway politically.

The official, bipartisan consensus was that black incarceration rates

were skyrocketing because black people had stunningly high rates of

drug addiction and violent crime. This was not only a highly distorted

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x i i i

telling of the story; it seemed to be the only version of the story that

mainstream audiences were willing to hear.

In my experience, whenever activists— especially black activists—

challenged discriminatory or abusive policing or questioned state and

federal budgets that shifted billions of dollars away from education, pub-

lic housing, welfare, or drug treatment to brand-new, high-tech prisons,

someone would inevitably interrupt the conversation to raise the subject

of violent crime— especially “black-on- black crime.” This discursive

maneuver was often performed casually in an offhand manner; yet it

proved to be a stunningly effective way of refocusing attention on a rela-

tively small number of individuals who cause harm, thus shielding from

critique an entire system that inflicts incalculable harm on millions.

When I sat down to write The New Jim Crow, I wanted to expose

the literal war that has been waged against our communities, a drug

war in which millions were taken prisoner and tens of millions were

criminalized, placed on probation or parole, and then released into

a permanent second- class status often for simple possession of mari-

juana or some other drug for personal use. It had become abundantly

clear to me that, so long as public attention remained focused on vio-

lent crime, the racial politics that led to the drug war and its conse-

quences would remain largely invisible, even to those who claimed to

care. I believed the time was overdue to move the conversation away

from violence committed by individuals struggling to survive and

direct public attention to organized violence perpetrated by our own

government against black people— violence that has remained fairly

constant, merely changing forms throughout our nation’s history. This

book was my chance, finally, to change the subject.

I also believed—and I still believe—that the prevailing view that

mass incarceration has been driven by arrests and convictions for vio-

lent crime is simply wrong. It is a lie that has been invoked to excuse

and rationalize the intentional infliction of suffering on millions of peo-

ple. The truth is that the overwhelming majority of people sentenced

x x i v P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

to prisons and jails, as well as those placed on probation or parole,

have been convicted of nonviolent crimes, especially drug offenses.

This was true when I published the book and it remains true today.

In 2010, the FBI reported that the “highest number of arrests were for

drug abuse violations,” followed by arrests for driving under the influ-

ence and larceny-theft. Even if the analysis is limited to felonies—thus

excluding extremely minor crimes and misdemeanors—nonviolent

offenses predominate. Only about a quarter of felony defendants in

large urban counties were charged with a violent offense in 2006, the

most recent year for which prison admission data was available when

I published the book. Today, it remains the case that the overwhelm-

ing majority of people swept into the system of mass incarceration

are charged with nonviolent crimes and drug offenses. In 2019, data

reported by the Vera Institute of Justice revealed that police make

more than 10 million arrests each year, but only 5 percent of those

arrests are for violent offenses—ranging from schoolyard fist fights

to armed robbery to homicide. Drug crimes remain the largest cat-

egory of arrests. According to the Pew Research Center, eight out of ten

people on probation and two-thirds of the people on parole have been

convicted of nonviolent crimes.

In recent years, however, some have questioned my insistence

that arrests and convictions for nonviolent offenses, particularly

drug offenses, have been the primary driver of mass incarcera-

tion. They point out that the majority of people in state prisons

today—52 percent—have been convicted of violent offenses. This sta-

tistic is typically treated as a bombshell revelation. How can I argue,

they say, that the drug war has been the single greatest contributor to

mass incarceration when most people in prison have been convicted

of violent crimes?

There is an easy answer to this question, but I’ve come to realize that

the original edition did not do enough to demystify prison statistics.

The reality is this: the fact that half of a state’s prison population is

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x v

comprised of people labeled violent offenders does not mean that half

of the people sentenced to prison in that state have been convicted of

violent crimes. This may seem confusing or counterintuitive at first,

but if you pause to consider how the system actually operates, this fact

becomes obvious. People who are convicted of violent crimes tend to

get longer prison sentences than those who commit nonviolent offens-

es. As a result, people who are classified as violent offenders comprise

a much larger share of the prison population than they would if they

had shorter sentences.

A hypothetical scenario may help here. Picture in your mind a

prison hallway lined with cells (ten on each side) that are occupied

by people for varying lengths of time. Imagine that each cell holds

two people. One side of the hallway is reserved for people who have

been convicted of drug or property crimes and who have relatively

short sentences of five years or fewer. The other side of the hallway

is reserved for people who have been convicted of violent crimes and

sentenced to long mandatory minimums (ten years or more) or life

imprisonment. During a single decade, more than a hundred people

could cycle in and out of the cages reserved for those convicted of

nonviolent crimes, while the same twenty people who are locked up

for violent crimes on the other side of the hallway would remain in

place. At any given moment, if you were to snap a picture of that hall-

way, half of the people living in cages would be classified as “violent

offenders.” But this picture would wildly distort your understanding

of the population who had been sentenced to prison during the past

ten years. Although prison hallways are not segregated in this fash-

ion, some version of this dynamic occurs in prisons across America,

resulting in prisons that are half- filled with people convicted of violent

crimes, even though most people sentenced to prisons and jails have

been convicted of lesser offenses.

Nevertheless, many politicians, law enforcement officials, journal-

ists, and some academics continue to create the false impression that

x x v i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

most people sent to prisons or jails, or labeled criminals or felons, have

been convicted of violent crimes. They point to the current composi-

tion of state prisons as “proof” of this imagined fact, ignoring that

sentencing practices distort our understanding of who is sent to prison

and why. The lie that most people sent to prison are “violent offenders”

is dangerous because it perpetuates the false notion that our system

of mass incarceration is primarily concerned with violence and that

it is well designed to keep communities safe. In fact, our system is

primarily concerned with the perpetual control and marginalization

of the dispossessed; it is not designed to respond meaningfully to the

harms of violence—a reality powerfully described in Danielle Sered’s

recent book, Until We Reckon: Violence, Mass Incarceration, and a Road

to Repair. Sered shows through her research, as well as stories drawn

from her restorative justice program Common Justice, how the system

of mass incarceration multiplies, rather than remedies, the harm of

violent crime.

When I explain these realities to those who question my emphasis

on nonviolent drug offenses, some people still insist that the impact of

the drug war is overblown because people convicted of drug offenses

comprise a minority of those locked in state prisons. They point out

that, even if we released everyone locked up on drug charges, most

people in state prisons would still be there. This, of course, is true, but

that observation misses one of the key points of the book.

One of the main reasons I wrote The New Jim Crow was because I was

deeply concerned that few people seemed to understand that the sys-

tem of mass incarceration extends far beyond prison walls—shaming,

stigmatizing, and controlling people whether or not they’ve actually

spent time behind bars. In this way, the system functions much more

like a caste system than a system of crime prevention or control. In the

introduction, I was careful to define “mass incarceration” to include

those who were subject to state control outside of prison walls, as well

as those who were locked in literal cages. I wrote:

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x v i i

It may be helpful, in attempting to understand the basic

nature of the new caste system, to think of the criminal

justice system—the entire collection of institutions and

practices that comprise it—not as an independent system

but rather as a gateway into a much larger system of racial

stigmatization and permanent marginalization. This larger

system, referred to here as mass incarceration, is a system

that locks people not only behind actual bars in actual pris-

ons, but also behind virtual bars and virtual walls— walls

that are invisible to the naked eye but function nearly as

effectively as Jim Crow laws once did at locking people of

color into a permanent second- class citizenship. The term

mass incarceration refers not only to the criminal justice

system but also to the web of laws, rules, policies, and

customs that control those labeled criminals both in and

outside of prison. Once released, former prisoners enter a

hidden underworld of legalized discrimination and perma-

nent social exclusion. They are members of America’s new

undercaste. (Emphasis in original.)

I offered this definition of mass incarceration at the outset in an effort

to make clear that my concern was not limited to those behind bars

at any given moment; rather, I was concerned with the emergence of

a system that brands people, often at very young ages, as “criminals”

and then ushers them into a parallel social universe in which they

may be denied the right to vote and be subject to legal discrimination

in employment, housing, and basic public benefits for the rest of their

lives. Throughout the book, I repeatedly stated that it is the “prison

label, not the prison time” that matters most if we are to understand

the true scope and impact of mass incarceration. An arrest (even with-

out a conviction) can have serious consequences, and a criminal con-

viction of any kind—even if probation rather than imprisonment is

x x v i i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

imposed—can relegate someone to a permanent second-class status.

I aimed to help readers see that entire communities defined by race

and class have been criminalized. Millions are now subject to legal

discrimination and varying forms of control—locked in and locked

out—whether or not they find themselves behind bars.

As I see it, the War on Drugs—more than any other government pro-

gram or political initiative—gave rise to mass incarceration as defined

above. Although the political dynamics that gave birth to the system

date back to slavery, the drug war marked an important turning point

in American history, one that cannot be measured simply by counting

heads in prisons and jails. The declaration and escalation of the War on

Drugs marked a moment in our past when a group of people defined by

race and class was viewed and treated as the “enemy.” A literal war was

declared on a highly vulnerable population, leading to a wave of puni-

tiveness that permeated every aspect of our criminal justice system

and redefined the scope of fundamental constitutional rights. The war

mentality resulted in the militarization of local police departments and

billions invested in drug law enforcement at the state and local levels.

It also contributed to astronomical expenditures for prison building

for people convicted of all crimes and the slashing of billions from

education, public housing and welfare programs, as well as a slew of

legislation authorizing legal discrimination against millions of people

accused of drug offenses, denying them access to housing, food stamps,

credit, basic public benefits, and financial aid for schooling. This war

did not merely increase the number of people in prisons and jails. It

radically altered the life course of millions, especially black men who

were the primary targets in the early decades of the war. Their lives and

families were destroyed for drug crimes that were largely ignored on

the other side of town.

Those who define “mass incarceration” narrowly, to include only

individuals currently locked in prisons or jails, erase from public view

the overwhelming majority of people ensnared by the system. Twice

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x i x

as many people are on probation or parole in this country as are locked in

literal cages. The United States has a staggering 2.3 million people in

prison—a higher rate of incarceration than any country in the world—

but it also has another 4.5 million people under state control outside

of prisons, on probation or parole. More than 70 million Americans—

over 20 percent of the entire U.S. population, overwhelmingly poor

and disproportionately people of color—now have criminal records

that authorize legal discrimination for life. The New Jim Crow was

intended to help people see that it is a serious mistake to think of mass

incarceration as simply a problem of too many people in prisons and

jails. It is that, but it also much, much more. Prison statistics barely

begin to capture the enormity of this crisis. And yet for too many, the

discussion begins and ends there.

None of this is to suggest that we ought not be concerned about vio-

lent crime or the large numbers of people locked in cages for violent

offenses. We will never close prisons on a large scale in this country,

or drastically reduce the prison population, if we do not change the

way we view and respond to violent crime. As many advocates have

pointed out, the distinction between survivors and perpetrators of vio-

lence is largely illusory, as virtually no one commits violence without

first surviving it. Reflexively locking people in cages and subjecting

them to degradation and humiliation— inflicting violence and suffer-

ing upon people in order to teach them that violence is wrong—is a

doomed strategy, especially considering that most people who commit

violent crime are victims as well. If we want to reduce violence in our

communities, we need to hold people accountable in ways that aim

to repair and prevent harm rather than simply inflicting more harm

and trauma and calling it justice. Fortunately, a growing number of

restorative and transformative justice advocates—such as Danielle

Sered, Fania Davis, sujatha baliga, and Mariame Kaba—are helping

communities to break free of “justice” models that benefit punishment

bureaucracies but perpetuate the harms of crime and violence.

x x x P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

These advocates recognize that responding to crime in a construc-

tive manner requires addressing interpersonal harm as well as struc-

tural harm traceable to our racial history. Violence in struggling black

communities is deeply rooted in conditions beyond the direct control

of the individuals who live there, including the profound inequalities

and indignities created by the legacies of slavery, segregation, ghet-

toization, and widespread legal discrimination and stigmatization in

the era of mass incarceration. Violence is also traceable to the brutali-

ties of global capitalism. When factories closed and moved overseas,

work suddenly disappeared from segregated communities in inner

cities, plunging them into economic collapse. Despair and violence

predictably flared. Our nation could have responded with a wave of

care and concern—with stimulus packages, bail-out plans, and major

investments in education and job creation—but instead we declared

war. Like all wars, the War on Drugs has been cruel and unforgiving.

While some black people dealing with crime and violence in their

communities have supported “get tough” tactics out of desperation,

this drug war has not been waged because black people wanted it.

Since the abolition of slavery, black people have asked for, organized

for, and demanded many large-scale interventions that might address

poverty, crime, and severe social and economic inequalities. As Car-

ol Anderson explains in White Rage, we have met enormous, some-

times violent, resistance at every turn. We’ve been told that we are

undeserving or that necessary programs or public investments are too

expensive. Funding for schools, decent housing, job creation, drug

treatment, mental health, and trauma support in black communities

is almost always in short supply. And yet, our nation has been eager

to invest more than a trillion dollars in a drug war that has decimated

our families and communities. Police, prisons, and control are the only

things that black people have ever asked for and received from this

nation, pressed down and running over—to borrow a Biblical phrase.

The drug war may have received some black support, but the politics

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x i

of white supremacy— including fear mongering, scapegoating, and a

willingness to invest heavily in racial separation, exclusion, and con-

trol (while slashing funds for welfare, education, housing, drug treat-

ment, and more)—is what ultimately gave birth to the new Jim Crow.

Over the years, when people have asked me about violent crime, I’ve

been quick to acknowledge the toll it takes on the least advantaged

communities. I find it encouraging that today, unlike ten years ago,

the question is now usually asked by those who seem committed to

deepening their understanding rather than changing the subject. I tell

them we must come to see the system of mass incarceration as a form

of organized violence against our communities, rather than a meaning-

ful response to violence committed by individuals within our commu-

nities. The safest communities are not the ones with the most police,

prisons, or electronic monitors, but the ones with quality schools,

health care, housing, plentiful jobs, and strong social networks that

allow families not merely to survive but to thrive. What our commu-

nities need and deserve is no mystery. The more difficult question is:

what is necessary to end the politics of white supremacy, to reimagine

justice, and to rebirth democracy in America?

The Way Forward

This brings us to the question that I’ve received most often since pub-

lishing The New Jim Crow: what do we do now? Many sense that a

movement to end mass incarceration is under way, and they’re eager

to join, but they don’t know where or how to find the movement, and

they wonder what contribution they could possibly make. Their confu-

sion and anxiety reflect the fact that opportunities to join movement-

building work are very limited in most communities. People often hope

that I will be able to provide a road map, or at least a compass, that will

point them in the right direction. Unfortunately, I rarely know enough

about the political and social dynamics of the places that I visit to offer

x x x i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

concrete, strategic advice about how to decarcerate their communities

and build movements that will help to remake our democracy. I can

point to promising work and organizations around the country, but I

cannot tell them what, exactly, to do under their unique circumstanc-

es, or how best to use their personal experiences, talents, and gifts in

service of the movement.

What I have said in nearly every place I’ve visited is that we must

do what is required of all liberation struggles: educate ourselves and

others, speak unpopular truths, provide support for those who have

been harmed, and organize against the systems that seek to oppress,

control, and divide us. We must demand reparations for current and

past wrongs, open our hearts and minds to one another, and heal our

communities as best we can. We must act with great courage, as well as

compassion and humility, for none of us has all the answers. Ultimate-

ly, our goal must be to reimagine what justice can and should mean in

our communities and our nation as a whole, a task that requires the

participation and leadership of those who have suffered most. There is

no road map, no guidebook. We must make do with the lessons of his-

tory and carry forward the struggles of earlier generations, guided by a

moral compass that honors the dignity and value of us all.

In view of these realities, I will not try to answer here the ques-

tion “What should we do now?” in a manner that would be true for

all people and all communities. However, I do believe the question is

a worthy one and that everyone—inside and outside of prisons and

jails—has a role to play in answering it. Instead, I will close by sharing

a few thoughts regarding my greatest concern and deepest hope for our

collective future as we strive to find a way forward.

My greatest concern is that, in the ten years since this book was pub-

lished, the system of mass incarceration has already begun to morph

into something new and potentially more dangerous. To some extent, I

saw this coming. The final chapter of The New Jim Crow predicted that

a bipartisan consensus in support of modest prison downsizing would

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x i i i

likely be reached—not because of an awakening to the humanity of

those caged, but because caging on such a massive scale had become

too expensive. It also predicted that, if advocates did not squarely con-

front the racial and social dynamics that brought us to this moment in

time, the system would likely reemerge as something new— perhaps a

cheaper version of itself. What I did not foresee or predict was the form

the new system would take. I did not predict the astonishing increase

in the detention and deportation of immigrants. Nor did I imagine that

technological advances would quickly render old- fashioned brick-and-

mortar prisons largely unnecessary as “e- carceration” turns entire

communities into open-air, digital prisons. In retrospect, these devel-

opments seem entirely predictable and obvious. But relatively few saw

them coming, just as mass incarceration itself was nearly unimagi-

nable just forty years ago.

Historian Kelly Lytle Hernandez is among those who have begun

to connect the dots between mass incarceration and mass deportation.

In her brilliant essay “Amnesty or Abolition: Felons, Illegals, and the

Case for a New Abolition Movement,” she chronicles how these sys-

tems have emerged as dual, interlocking forms of social control that

relegate “aliens” and “felons” to a racialized caste of outsiders. The

system of mass incarceration created a legal framework by which the

rights and benefits of citizenship are routinely stripped away from mil-

lions of U.S. citizens labeled “criminals” and “felons” until they mirror

(and, at times, dip below) those of non- citizen immigrants within the

United States. This extraordinary development has coincided with the

criminalization of immigration in the United States, resulting in a new

class of “illegal immigrants” and “aliens” who are viewed and treated as

criminals. Immigration violations that were once treated as minor civil

infractions are now crimes. And everyday legal infractions, ranging from

shoplifting to marijuana possession to traffic violations, now routinely

trigger one of the state’s most devastating sanctions— deportation. The

story of how our “nation of immigrants” came to deport and incarcerate

x x x i v P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

so many for so little, Lytle explains, is a story of race and unfreedom

reaching back to the era of emancipation. If we fail to understand the

historical relationship between these systems, especially the racial poli-

tics that enabled them, we will be unable to build a truly united front

that will prevent the continual re-formation of systems of racial and

social control.

I have found, in recent years, that those who argue that the systems

of mass incarceration and mass deportation simply reflect sincere (but

misguided) efforts to address the real harms caused by crime, or the

real challenges created by surges in immigration, tend to underesti-

mate the corrupting influence of white supremacy and capitalism in

our politics whenever black and brown people are perceived to be the

problem. W.E.B. Du Bois famously asked back in 1897: “Between me

and the other world, there is ever an unasked question: How does it

feel to be a problem?” White people are generally allowed to have prob-

lems, and they’ve historically been granted the power to define and

respond to them. But people of color—in this “land of the free” forged

through slavery and genocide—are regularly viewed and treated as the

problem.

This distinction has made all the difference. Once human beings

are defined as the problem in the public consciousness, their elimi-

nation through deportation, incarceration, or even genocide becomes

nearly inevitable. White nationalism, at its core, reflects a belief that

our nation’s problems would be solved if only people of color could

somehow be gotten rid of, or at least better controlled. In short, mass

incarceration and mass deportation have less to do with crime and

immigration than the ways we’ve chosen to respond to those issues

when black and brown people are framed as the problem. As Khalil

Gibran Muhammad points out in The Condemnation of Blackness,

throughout our nation’s history, when crime and immigration have

been perceived as white, our nation’s response has been radically dif-

ferent from when those phenomena have been defined as black or

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x v

brown. The systems of mass incarceration and mass deportation may

seem entirely unrelated at first glance, but they are both deeply rooted

in our racial history, and they both have expanded in part because of

the enormous profits to be made in controlling, exploiting, and elimi-

nating vulnerable human beings.

Indeed, during the past decade, capitalism has accelerated the expan-

sion and evolution of these systems of control, even as public opinion

has begun to turn against mass incarceration. Private prison compa-

nies and other corporations have begun to adjust their business models

now that politicians across the political spectrum are looking to save

money by downsizing prisons. According to a report released last year

by the Center for Media Justice, four large corporations— including

the GEO Group, the largest private prison company—have entered

into private contracts with government agencies to provide electronic

monitoring of people suspected or convicted of crimes in thirty- eight

states, for a combined annual revenue of almost $700 million. Compa-

nies that earned millions on contracts to run or serve prisons are now

poised to earn billions through the surveillance and monitoring of the

same population. Even if old- fashioned prisons fade away, the profit

margins of these companies will widen as long as growing numbers of

people find themselves subject to perpetual criminalization, surveil-

lance, monitoring, and control.

To date, private prisons have controlled a relatively small number

of citizens who are incarcerated; most of their money has been made

from caging immigrants. But now, due to recent developments in tech-

nology and shifting business models, these corporations are well posi-

tioned to make billions locking entire communities in digital prisons.

Electronic monitoring is now being used widely to track, monitor, and

surveil U.S. citizens released on probation or parole— often with those

being monitored footing the bill—as well as immigrants released from

custody at the border.

It is not difficult to imagine a scenario in which racial and class

x x x v i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

segregation are maintained digitally in the United States, via remote

control, with impoverished communities of color confined to their

neighborhoods by electronic monitors that alert the police when peo-

ple step outside their designated zones. This is not the stuff of sci-

fi/fantasy or teen dystopian fiction; this is the world that many of us

are co-creating right now even as we claim to be working to end mass

incarceration.

Thousands of people are already living in this fearsome new world.

In fact, in many jurisdictions today, judges make decisions about who

should be held in jail and who should be set “free” based on a com-

puter algorithm. If you’re lucky enough to be released, an expensive

monitoring device will immediately be shackled to your ankle: a GPS

tracking device provided by a private company that may charge you

up to $300 per month. Your permitted zones of movement may make

it difficult or impossible for you to keep a job, visit family members,

attend school, or care for your kids. You will find yourself trapped

in an open-air, digital prison—one that may not extend beyond your

house, your block, or your neighborhood, depending on the judge’s

orders. One false step (or one malfunction of the GPS tracking device)

will bring the cops to your door, your workplace, or wherever you may

be, to snatch you right back to jail. If you’re an immigrant, an elec-

tronic monitor may bring ICE to your door. Suddenly, you’re whisked

away to a private detention center, then placed on a plane and shipped

thousands of miles away, where you’re deposited in another country

like unwanted cargo.

Sadly, some reformers are counting these technological develop-

ments as progress. In our zeal to make some headway in the fight

against mass incarceration, some well-intentioned advocates are

embracing technical solutions to the profound human and moral cri-

ses we face. They say: Isn’t it better for someone to be on a monitor

rather than locked in a prison? Isn’t it better for a computer algorithm

to decide your fate than a racist judge? Even though algorithms are

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x v i i

often discriminatory— since they reflect in their programming bias-

es already baked into our criminal justice system—and even though

being constantly surveilled by an electronic monitor isn’t actually free-

dom, many reformers believe these kinds of technological advances can

point us in the direction of justice. I am skeptical that is the case. As I

noted in the foreword to Maya Schenwar and Victoria Law’s book Pris-

on by Any Other Name: The Harmful Consequences of Popular Reforms,

we’ve learned how to send people into outer space and how to shrink a

powerful computer into a device that fits into the palm of our hand, yet

we haven’t yet learned how to face our racial history or how to tell the

truth about the devastation wrought by colonialism, militarism, and

global capitalism. We’ve learned how to develop powerful surveillance

systems and how to build missiles that can reach halfway around the

globe. But what have we learned about the true meaning of justice?

Of course most people, including myself, would prefer to be sub-

jected to electronic monitoring than to be locked in a cement cage.

That reality must not be denied. But what does it mean for the future

of our communities to celebrate reforms that convert our homes into

prisons? Or that turn our neighborhoods into digital concentration

camps patrolled by drones? I find it difficult to call this progress.

As momentum builds for some kind of reform, I hope that we will

consider carefully what counts as meaningful progress toward ending

the history and cycle of caste systems in America. When most people

describe the “growing bipartisan consensus to end mass incarcera-

tion,” they are typically defining the problem of mass incarceration

in the narrowest possible terms, focusing only on reducing somewhat

the number of people who are currently behind bars. As a result, cel-

ebrated reforms typically amount to little more than tinkering with

the mass incarceration machine. While reform work is certainly nec-

essary to free people whose lives are being wasted behind bars and

to mitigate the harms of mass incarceration, we must not be seduced

into believing that improving the system is the same as dismantling or

x x x v i i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

transforming it. As Angela Davis has explained, if we accept uncriti-

cally the notion that prisons offer an answer, and that all we must do is

improve our so-called justice systems, we evade the “responsibility of

seriously engaging with the problems of our society, especially those

produced by racism and, increasingly, global capitalism.” Our ultimate

goal—if we truly aim to overcome our nation’s habit of constructing

enormous systems of racial and social control—cannot simply be to

reduce the number of people behind bars. We must strive to create a

nation in which caging people en masse—digitally or literally—and

stripping them of basic civil and human rights for the rest of their lives

is not only unnecessary but unthinkable.

Nor can our goal simply be to eliminate racial disparities in our

criminal injustice system, as though subjecting more white people to

the system would somehow redeem it. In fact, during the past decade,

racial disparities in the American prison system have been on the

decline. Experts are divided regarding the causes; some believe that

it is largely the result of increased arrests and convictions of white

people due to the opioid crisis and their declining socioeconomic

prospects; others believe that recent drug policy reforms have benefit-

ted African Americans the most (since they were the primary targets

of the drug war); and still others believe that large numbers of Latinos

are being misclassified as white, distorting the data. The important

question, however, is whether we want to celebrate as “progress” any

development that might reflect the morphing or evolution of the sys-

tem, rather than its demise. Human rights champion Bryan Steven-

son has observed that “slavery didn’t end; it evolved.” Today, we can

see, in real time, the system of mass incarceration evolving before

our eyes, as enormous investments are made in immigrant detention

centers and digital prisons, and as growing numbers of white people

become collateral damage in a war that was declared with black peo-

ple in mind.

Discerning whether, and to what extent, meaningful progress is

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x i x

being made requires that we take a broad view. Often when a leap

forward seems to have been made with respect to one policy, or one

aspect of the system, it soon becomes apparent that the core problem

has not been solved but has rather changed form. Consider drug policy

under the Obama administration. Many of us rightly celebrated when

President Obama granted clemency to nearly 2,000 people—many of

whom had been imprisoned for drug crimes—and signed legislation

that reduced the disparity in sentencing between crack and powder

cocaine. Yet the Obama administration also greatly increased deten-

tions and deportations of people for drug offenses. According to Human

Rights Watch, between 2007 and 2012, post- conviction deportations

for simple drug possession increased by 43 percent. In those years,

roughly 260,000 non- citizens were evicted from the country having

been convicted of drug offenses, 34,000 of whom had been caught in

possession of marijuana. Obama attempted to defend mass deporta-

tion by claiming that his administration was focused on deporting:

“Felons, not families. Criminals, not children. Gang members, not

a mom who’s working hard to provide for her kids.” But of course,

“felons” have families. And “criminals” are often children or teenagers.

The notion that if you’ve ever committed a crime you’re permanently

disposable is the very idea that has rationalized mass incarceration in

the United States.

Both mass incarceration and mass deportation have been errone-

ously justified on the grounds that these systems are necessary to keep

us safe. Just as the public was initially led to believe that the War on

Drugs was focused on “drug kingpins” or “violent offenders”—when

the opposite was true—our nation’s current war on immigrants has

been advertised as necessary to rid us of “terrorists, gang members, or

violent criminals,” when in fact the overwhelming majority of immi-

grants detained and deported have no criminal record and pose no

threat. In 2014, The New York Times found in an investigation of gov-

ernment records that two- thirds of immigrants deported during the

x l P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

Obama administration committed minor traffic violations or had no

criminal record at all. Only 20 percent had a criminal record or faced

drug charges.

Two years later, The Marshall Project reported that the data remained

largely unchanged, and that the actual priorities of the Obama admin-

istration, as laid out in a 2014 Department of Homeland Security memo,

were not as narrow as Obama had implied in public remarks. Anyone

who had illegally entered the country after 2014 was considered a pri-

ority, regardless of whether they had committed other crimes. Immi-

grants with only misdemeanors on their record were still relatively

high on the list. Anyone with an “aggravated felony” was deemed a

number-one priority, but the extremely broad definition of “aggravated

felony” under immigration law includes people whose crimes are nei-

ther aggravated nor a felony. The term can apply to convictions such as

shoplifting, drug possession, and low-level crimes that carry little or

no jail time. Overall, the data revealed that, notwithstanding Obama’s

rhetoric, the overwhelming majority of people who were deported had

no criminal record or were guilty only of nonviolent crimes and mis-

demeanors, including drug possession. Roughly 60 percent of depor-

tations involved people with no criminal record at all.

However, even if the Obama administration had limited mass deten-

tions and deportations to people with criminal records, it would have

been a mistake for us to turn a blind eye. It may be tempting to imagine

that ridding our nation of “criminals,” rather than “innocent” people,

is perfectly justifiable. But criminality is not truly a limiting principle.

All of us make mistakes. Young people, in particular, are prone to bad

judgment—as voluminous scientific evidence now attests. Virtually all

of us break the law at some point in our lives—drinking under age,

experimenting with drugs, committing traffic violations, shoplifting,

failing to declare tips or cash income on tax returns, or even commit-

ting acts of violence in a schoolyard fight or when our emotions spin

out of control. Rationalizing mass incarceration or mass deportation

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x l i

on the grounds that it is meant to rid our nation of “criminals” perpet-

uates the false notion that “criminals” are a monolithic, deviant group

that is fundamentally different than “us” and therefore unworthy of

our concern. They can be eliminated without a second thought.

Equally important, what gets defined as crime, and who gets sur-

veilled and punished, generally has more to do with the politics of

race and class than the harm that any particular behavior or activity

causes. As Alec Karakatsanis observes in Usual Cruelty: The Complic-

ity of Lawyers in the Criminal Injustice System, people with race and

class privilege are generally shielded from criminal prosecution, even

though their crimes often cause far greater harm than the crimes of

the poor. The most obvious example is the prosecutorial response

to the financial crisis of 2008 and the related scandals: “Employ-

ees at banks committed crimes including lying to investigators and

regulators, fraudulently portraying junk assets as valuable assets,

rate- rigging, bribing foreign officials, submitting false documents,

mortgage fraud, fraudulent home foreclosures, financing drug car-

tels, orchestrating and enabling widespread tax evasion, and violating

international sanctions.” The massive criminality caused enormous

harm. African Americans lost over half their wealth due to the collapse

of real estate markets and the financial crisis. By the end of the cri-

sis, in 2009, median household wealth for all Americans had declined

by $27,000, leaving almost 44 million people in poverty. While some

banks were eventually prosecuted (and agreed to pay fines that were

a small fraction of their profits), the individuals who committed these

crimes were typically spared. Despite engaging in forms of criminality

that destroyed the lives and wealth of millions, they were not rounded

up, dragged away in handcuffs, placed in cages, and then stripped of

their basic civil and human rights or shipped to another country. Their

mug shots never appeared on the evening news and they never had to

wave goodbye to their children in a courtroom, unable to give them a

final embrace.

x l i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

One of the lessons of recent decades is that racial caste systems can

grow and thrive even when our elected leaders claim to be progressive

and espouse the rhetoric of equality, inclusion, and civil rights. Presi-

dent Bill Clinton, who publicly aligned himself with the black com-

munity and black leaders, escalated the racially discriminatory drug

war in part to avoid being cast by conservatives as “soft on crime.”

Similarly, President Obama publicly preached values of inclusion and

compassion toward immigrants, yet he escalated the detention and

deportation of non-citizens. In both cases, highly racialized and puni-

tive systems thrived under liberal presidents who were given the ben-

efit of the doubt by those who might otherwise have been critics. Their

public displays of affection for communities of color, the egalitarian

values they preached, and their liberal or progressive stances on other

issues helped to shield these vast systems of control from close scru-

tiny. Many of us saw these presidents as “good people” with our best

interests at heart, doing what they could to navigate a political envi-

ronment in which only limited justice is possible. All of these factors

played a role, but one was key: these systems grew with relatively little

political resistance because people of all colors were willing to toler-

ate the disposal of millions of individuals once they had been labeled

criminals in the media and political discourse. This painful reality

suggests that ending our nation’s habit of creating enormous systems

of racial and social control requires us to expand our sphere of moral

concern so widely that none of us, not even those branded criminals,

can be viewed or treated as disposable.

If there is any silver lining to be found in the election of Don-

ald Trump to the presidency, it is that millions of people have been

inspired to demonstrate solidarity on a large scale across the lines of

gender, race, and class in defense of those who have been demonized

and targeted for elimination. Trump’s blatant racial demagoguery has

awakened many from their colorblind slumber and spurred collective

action to oppose the Muslim ban and the border wall, and to create

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x l i i i

sanctuaries for immigrants in their places of worship and local com-

munities. Many who are engaged in this work are also deeply involved

in, or supportive of, movements to end police violence and mass incar-

ceration. Growing numbers of people are beginning to see how the

politics of white supremacy have resurfaced again and again, leading

to the creation and maintenance of new systems of racial and social

control. A politics of deep solidarity is beginning to emerge—the only

form of politics that holds any hope for our collective liberation.

I know that some black people may feel a bit resentful in these

times, given the sudden outpouring of support for immigrants and the

newfound compassion for drug users—now that the opioid crisis is

perceived as white. With good reason, some ask: Where was the sup-

port or compassion for us when black people were declared the enemy?

Where were our “sanctuary cities”? Why should we care what happens

to white opioid users or immigrants being rounded up at the border

when no one seems to care when our families are torn apart, or when

our loved ones struggle with addiction, or when our children are shot

by the police or break the law out of desperation? These questions are

valid, reflecting racial dynamics that are real and not imagined.

Yet these concerns have not stopped the majority of black people and

black-led organizations from opposing the Muslim ban and the mass

deportation of undocumented immigrants. One survey, conducted by

the African American Research Collaborative (along with Latino Deci-

sions and Asian American Decisions) just prior to election day in 2018,

found that black voters overwhelmingly oppose Trump’s approach to

immigration, with 74 percent choosing “Immigrants just want to pro-

vide a better life for their families, just like you and me” over “America

has too many illegal immigrants, they hurt the economy, bring crime

and gang violence to our cities.” Another poll found that 77 percent of

African Americans opposed building the border wall—a higher per-

centage than any other racial or ethnic group. Black people also have

the highest support for the DREAM Act, which provides a pathway to

x l i v P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

citizenship for people brought to the United States as children, and

they are most opposed to Trump’s policy of separating children and

parents at the border.

Why? As Henry Fernandez and Jennifer Jones explain in their

review of the polling data, “Black people know what it’s like to have

their communities terrorized, to feel fear when pulled over by police,

and to fight to keep their families together.” If history has taught us

anything by now, it is that the politics of white supremacy will never

redound to our benefit in the long run, and those who profit from the

suffering of others will never hesitate to profit from our suffering when

the opportunity arises. The first private prison in this country was

created to cage immigrants; now private prison companies have their

sights set on building digital prisons that may have an even more dev-

astating impact on black communities than brick-and-mortar ones, as

it is far easier to contain and control entire communities digitally than

with cement walls. Similarly, key provisions in the Patriot Act, which

allowed the government to search homes without notifying their own-

ers or residents and which were advertised as necessary to root out

Muslim terrorists following 9/11, wound up being used primarily in

drug law enforcement—not terrorism investigations.

The future of our democracy may depend on other racial and ethnic

groups learning to see that our fates are, in fact, inescapably inter-

twined. If we, as a nation, are ever to free ourselves from the logic and

politics of white supremacy, we must not allow ourselves to imagine

that progress is made if the system causes greater harm to “them” than

“us.” Nor can we be seduced into believing that ending racially hostile

rhetoric is the same thing as ending systems of racial and social con-

trol, or that simply electing a different president or a different political

party will necessarily free us from the history and cycle of creating

caste-like systems in America. More is required of us in these times.

We must learn to care for one another across all boundaries and bor-

ders and build a movement of movements rooted in a love so fierce

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x l v

that when a Mexican child is ripped from the arms of his mother at the

border, and when a black child is ripped from the arms of her mother

as she’s arrested on the streets of New York, and when a white child is

ripped from the arms of her mother in a courtroom in Oklahoma, we

feel the same pain, the same agony, as though it were our own children.

For many of us, it is our own children whose lives are at stake.

More than a century after W.E.B. Du Bois declared that “the prob-

lem of the twentieth century is the problem of the color line,” our

political landscape remains riven by race and corrupted by greed. Yet

there is reason for hope. New movements, led by new generations and

those most impacted by injustice, are rising to face the challenges this

moment in our history presents. The struggle to birth a truly inclusive,

egalitarian democracy—a nation in which every voice and every life

truly matters—did not begin with us and will not end with us. This

struggle is as old as the nation itself and the birth process has been

painful, to say the least. My greatest hope and prayer is that we will

serve as faithful midwives and do what we can in our lifetimes to make

America, finally, what it must become.

Foreword

CORNEL WEST

Michelle Alexander’s The New Jim Crow is the secular bible for a new social movement in early twenty-first–century Ameri-
ca. Like C. Vann Woodward’s The Strange Career of Jim Crow—a book

Martin Luther King Jr. called “the historical bible of the Civil Rights

Movement”—we are witnessing the unique union of a powerful and

poignant text with a democratic awakening focused on the poor and

vulnerable in American society. The New Jim Crow is an instant classic

because it captures the emerging spirit of our age. For too long, there

has been no mass fight back against the multileveled assault on poor

and vulnerable people, despite the heroic work of intellectual free-

dom fighters including Marian Wright Edelman, Angela Davis, Loïc

Wacquant, Glenn Loury, Marc Mauer, and others. Yet the sleepwalk-

ing is slowly but surely coming to a close as more and more fellow

citizens realize that the iron cage they inhabit—maybe even a golden

cage for the affluent—is still a form of bondage. The New Jim Crow is

a grand wake-up call in the midst of a long slumber of indifference

to the poor and vulnerable. This indifference promotes a superficial

ethic of success—money, fame, and pleasure—that leaves too many

well-adjusted to injustice. In short, this book is a genuine resurrection

of the spirit of Martin Luther King Jr. amid the confusion of the Age

of Obama.

While the Age of Obama is a time of historic breakthroughs at the

x l v i i i F O R E W O R D

level of racial symbols and political surfaces, Michelle Alexander’s

magisterial work takes us beyond these breakthroughs to the systemic

breakdown of black and poor communities devastated by mass unem-

ployment, social neglect, economic abandonment, and intense police

surveillance. Her subtle analysis shifts our attention from the racial

symbol of America’s achievement to the actual substance of America’s

shame: the massive use of state power to incarcerate hundreds of thou-

sands of precious poor, black, male (and, increasingly, female) young

people in the name of a bogus “War on Drugs.” And her nuanced his-

torical narrative tracing the unconscionable treatment and brutal con-

trol of black people—slavery, Jim Crow, mass incarceration—takes us

beneath the political surfaces and lays bare the structures of a racial

caste system alive and well in the age of colorblindness. In fact, the very

discourse of colorblindness—created by neoconservatives and neolib-

erals in order to trivialize and disguise the depths of black suffering in

the 1980s and ’90s—has left America blind to the New Jim Crow. How

sad it is that this blindness has persisted under both Republican and

Democratic administrations and remains to this day hardly acknowl-

edged or examined in our nation’s public discourse.

The New Jim Crow shatters this silence. Once you read it, you have

crossed the Rubicon and there is no return to sleepwalking. You are

now awakened to a dark and ugly reality that has been in place for

decades and that is continuous with the racist underside of American

history from the advent of slavery onward. There is no doubt that if

young white people were incarcerated at the same rates as young black

people, the issue would be a national emergency. But it is also true that

if young black middle- and upper-class people were incarcerated at the

same rates as young black poor people, black leaders would focus much

more on the prison-industrial complex. Again, Michelle Alexander has

exposed the class bias of much of black leadership as well as the racial

bias of American leadership, for whom the poor and vulnerable of all

colors are a low priority. As Alexander puts it in her fiery and bold last

F O R E W O R D x l i x

chapter, “The Fire This Time” (with echoes from the great James Bald-

win!), “It is this failure to care, really care across color lines, that lies at

the core of this system of control and every racial caste system that has

existed in the United States or anywhere else in the world.”

Martin Luther King Jr. called for us to be lovestruck with each other,

not colorblind toward each other. To be lovestruck is to care, to have

deep compassion, and to be concerned for each and every individual,

including the poor and vulnerable. The social movement fanned and

fueled by this historic book is a democratic awakening that says we do

care, that the racial caste system must be dismantled, that we need a

revolution in our warped priorities, a transfer of power from oligarchs

to the people—and that we are willing to live and die to make it so!

This book is not for everyone. I have a specific audience in mind—people who care deeply about racial justice but who, for any num-
ber of reasons, do not yet appreciate the magnitude of the crisis faced

by communities of color as a result of mass incarceration. In other

words, I am writing this book for people like me—the person I was ten

years ago. I am also writing it for another audience—those who have

been struggling to persuade their friends, neighbors, relatives, teach-

ers, co-workers, or political representatives that something is eerily

familiar about the way our criminal justice system operates, some-

thing that looks and feels a lot like an era we supposedly left behind—

but who have lacked the facts and data to back up their claims. It is my

hope and prayer that this book empowers you and allows you to speak

your truth with greater conviction, credibility, and courage. Last, but

definitely not least, I am writing this book for all those trapped within

America’s latest caste system. You may be locked up or locked out of

mainstream society, but you are not forgotten.

Preface

T H E N E W J I M   C R O W

Jarvious Cotton cannot vote. Like his father, grandfather, great-grandfather, and great-great-grandfather, he has been denied the
right to participate in our electoral democracy. Cotton’s family tree

tells the story of several generations of black men who were born in the

United States but who were denied the most basic freedom that democ-

racy promises—the freedom to vote for those who will make the rules

and laws that govern one’s life. 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.1

Cotton’s story illustrates, in many respects, the old adage “The more

things change, the more they remain the same.” In each generation,

new tactics have been used for achieving the same goals—goals shared

by the Founding Fathers. Denying African Americans citizenship was

deemed essential to the formation of the original union. Hundreds of

years later, America is still not an egalitarian democracy. The argu-

ments and rationalizations that have been trotted out in support of

racial exclusion and discrimination in its various forms have changed

and evolved, but the outcome has remained largely the same. An

Introduction

2 T H E N E W J I M   C R O W

extraordinary percentage of black men in the United States are legally

barred from voting today, just as they have been throughout most of

American history. They are also subject to legalized discrimination

in employment, housing, education, public benefits, and jury service,

just as their parents, grandparents, and great-grandparents once were.

What has changed since the collapse of Jim Crow has less to do with

the basic structure of our society than with the language we use to jus-

tify it. In the era of colorblindness, it is no longer socially permissible to

use race, explicitly, as a justification for discrimination, exclusion, and

social contempt. So we don’t. Rather than rely on race, we use our crim-

inal justice system to label people of color “criminals” and then engage

in all the practices we supposedly left behind. Today it is perfectly legal

to discriminate against criminals in nearly all the ways that it was once

legal to discriminate against African Americans. Once you’re labeled a

felon, the old forms of discrimination—employment discrimination,

housing discrimination, denial of the right to vote, denial of educa-

tional opportunity, denial of food stamps and other public benefits, and

exclusion from jury service—are suddenly legal. As a criminal, you are

afforded scarcely more rights, and arguably less respect, than a black

man living in Alabama at the height of Jim Crow. We have not ended

racial caste in America; we have merely redesigned it.

I reached the conclusions presented in this book reluctantly. Ten years

ago, I would have argued strenuously against the central claim made

here—namely, that something akin to a racial caste system currently

exists in the United States. Indeed, if Barack Obama had been elected

president back then, I would have argued that his election marked the

nation’s triumph over racial caste—the final nail in the coffin of Jim

Crow. My elation would have been tempered by the distance yet to be

traveled to reach the promised land of racial justice in America, but

my conviction that nothing remotely similar to Jim Crow exists in this

country would have been steadfast.

I N T R O D U C T I O N 3

Today my elation over Obama’s election is tempered by a far more

sobering awareness. As an African American woman, with three young

children who will never know a world in which a black man could not

be president of the United States, I was beyond thrilled on election

night. Yet when I walked out of the election night party, full of hope

and enthusiasm, I was immediately reminded of the harsh realities of

the New Jim Crow. A black man was on his knees in the gutter, hands

cuffed behind his back, as several police officers stood around him

talking, joking, and ignoring his human existence. People poured out

of the building; many stared for a moment at the black man cower-

ing in the street and then averted their gaze. What did the election of

Barack Obama mean for him?

Like many civil rights lawyers, I was inspired to attend law school

by the civil rights victories of the 1950s and 1960s. Even in the face

of growing social and political opposition to remedial policies such as

affirmative action, I clung to the notion that the evils of Jim Crow are

behind us and that, while we have a long way to go to fulfill the dream

of an egalitarian, multiracial democracy, we have made real progress

and are now struggling to hold on to the gains of the past. I thought my

job as a civil rights lawyer was to join with the allies of racial progress

to resist attacks on affirmative action and to eliminate the vestiges of

Jim Crow segregation, including our still separate and unequal system

of education. I understood the problems plaguing poor communities

of color, including problems associated with crime and rising incar-

ceration rates, to be a function of poverty and lack of access to quality

education—the continuing legacy of slavery and Jim Crow. Never did

I seriously consider the possibility that a new racial caste system was

operating in this country. The new system had been developed and

implemented swiftly, and it was largely invisible, even to people, like

me, who spent most of their waking hours fighting for justice.

I first encountered the idea of a new racial caste system more than a

decade ago, when a bright orange poster caught my eye. I was rushing

4 T H E N E W J I M   C R O W

to catch the bus, and I noticed a sign stapled to a telephone pole that

screamed in large bold print: THE DRUG WAR IS THE NEW JIM CROW. I

paused for a moment and skimmed the text of the flyer. Some radical

group was holding a community meeting about police brutality, the

new three strikes law in California, and the expansion of America’s

prison system. The meeting was being held at a small community

church a few blocks away; it had seating capacity for no more than

fifty people. I sighed, and muttered to myself something like, “Yeah,

the criminal justice system is racist in many ways, but it really doesn’t

help to make such an absurd comparison. People will just think you’re

crazy.” I then crossed the street and hopped on the bus. I was headed

to my new job: director of the Racial Justice Project of the American

Civil Liberties Union (ACLU) in Northern California.

When I began my work at the ACLU, I assumed that the criminal jus-

tice system had problems of racial bias, much in the same way that all

major institutions in our society are plagued with problems associated

with conscious and unconscious bias. As a lawyer who had litigated

numerous class-action employment-discrimination cases, I under-

stood well the many ways in which racial stereotyping can permeate

subjective decision-making processes at all levels of an organization,

with devastating consequences. I was familiar with the challenges

associated with reforming institutions in which racial stratification

is thought to be normal—the natural consequence of differences in

education, culture, motivation, and, some still believe, innate ability.

While at the ACLU, I shifted my focus from employment discrimi-

nation to criminal justice reform and dedicated myself to the task of

working with others to identify and eliminate racial bias whenever and

wherever it reared its ugly head.

By the time I left the ACLU, I had come to suspect that I was wrong

about the criminal justice system. It was not just another institution

infected with racial bias but rather a different beast entirely. The activ-

ists who posted the sign on the telephone pole were not crazy; nor were

I N T R O D U C T I O N 5

the smattering of lawyers and advocates around the country who were

beginning to connect the dots between our current system of mass

incarceration and earlier forms of social control. Quite belatedly, I came

to see that mass incarceration in the United States had, in fact, emerged

as a stunningly comprehensive and well- disguised system of racialized

social control that functions in a manner strikingly similar to Jim Crow.

In my experience, people who have been incarcerated rarely have

difficulty identifying the parallels between these systems of social con-

trol. Once they are released, they are often denied the right to vote,

excluded from juries, and relegated to a racially segregated and sub-

ordinated existence. Through a web of laws, regulations, and informal

rules, all of which are powerfully reinforced by social stigma, they are

confined to the margins of mainstream society and denied access to

the mainstream economy. They are legally denied the ability to obtain

employment, housing, and public benefits—much as African Ameri-

cans were once forced into a segregated, second- class citizenship in

the Jim Crow era.

Those of us who have viewed that world from a comfortable

distance—yet sympathize with the plight of the so- called underclass—

tend to interpret the experience of those caught up in the criminal jus-

tice system primarily through the lens of popularized social science,

attributing the staggering increase in incarceration rates in commu-

nities of color to the predictable, though unfortunate, consequences

of poverty, racial segregation, unequal educational opportunities, and

the presumed realities of the drug market, including the mistaken

belief that most drug dealers are black or brown. Occasionally, in the

course of my work, someone would make a remark suggesting that

perhaps the War on Drugs is a racist conspiracy to put blacks back in

their place. This type of remark was invariably accompanied by ner-

vous laughter, intended to convey the impression that although the

idea had crossed their minds, it was not an idea a reasonable person

would take seriously.

6 T H E N E W J I M   C R O W

Most people assume the War on Drugs was launched in response to

the crisis caused by crack cocaine in inner-city neighborhoods. This

view holds that the racial disparities in drug convictions and sen-

tences, as well as the rapid explosion of the prison population, reflect

nothing more than the government’s zealous—but benign—efforts to

address rampant drug crime in poor, minority neighborhoods. This

view, while understandable, given the sensational media coverage of

crack in the 1980s and 1990s, is simply wrong. While it is true that

the publicity surrounding crack cocaine led to a dramatic increase in

funding for the drug war (as well as to sentencing policies that greatly

exacerbated racial disparities in incarceration rates), there is no truth

to the notion that the War on Drugs was launched in response to crack

cocaine. President Ronald Reagan officially announced the current

drug war in 1982, before crack became an issue in the media or a cri-

sis in poor black neighborhoods. A few years after the drug war was

declared, crack began to spread rapidly in the poor black neighbor-

hoods of Los Angeles and later emerged in cities across the country.2

The Reagan administration hired staff to publicize the emergence of

crack cocaine in 1985 as part of a strategic effort to build public and

legislative support for the war.3 The media campaign was an extraordi-

nary success. Almost overnight, the media was saturated with images

of black “crack whores,” “crack dealers,” and “crack babies”—images

that seemed to confirm the worst negative racial stereotypes about

impoverished inner-city residents. The media bonanza surrounding

the “new demon drug” helped to catapult the War on Drugs from an

ambitious federal policy to an actual war.

The timing of the crack crisis helped to fuel conspiracy theories

and general speculation in poor black communities that the War on

Drugs was part of a genocidal plan by the government to destroy black

people in the United States. From the outset, stories circulated on

the street that crack and other drugs were being brought into black

neighborhoods by the CIA. Eventually, even the Urban League came

I N T R O D U C T I O N 7

to take the claims of genocide seriously. In its 1990 report “The State

of Black America,” it stated: “There is at least one concept that must

be recognized if one is to see the pervasive and insidious nature of

the drug problem for the African American community. Though dif-

ficult to accept, that is the concept of genocide.” 4 While the conspiracy

theories were initially dismissed as far-fetched, if not downright loony,

the word on the street turned out to be right, at least to a point. The

CIA admitted in 1998 that guerrilla armies it actively supported in

Nicaragua were smuggling illegal drugs into the United States—drugs

that were making their way onto the streets of inner-city black neigh-

borhoods in the form of crack cocaine. The CIA also admitted that, in

the midst of the War on Drugs, it blocked law enforcement efforts to

investigate illegal drug networks that were helping to fund its covert

war in Nicaragua.5

It bears emphasis that the CIA never admitted (nor has any evi-

dence been revealed to support the claim) that it intentionally sought

the destruction of the black community by allowing illegal drugs to

be smuggled into the United States. Nonetheless, conspiracy theorists

surely must be forgiven for their bold accusation of genocide, in light

of the devastation wrought by crack cocaine and the drug war, and the

odd coincidence that an illegal drug crisis suddenly appeared in the

black community after—not before—a drug war had been declared.

In fact, the War on Drugs began at a time when illegal drug use was

on the decline.6 During this same time period, however, a war was

declared, causing arrests and convictions for drug offenses to skyrock-

et, especially among people of color.

The impact of the drug war has been astounding. In less than thirty

years, the U.S. penal population exploded from around 300,000 to

more than 2 million, with drug convictions accounting for the major-

ity of the increase.7

The United States now has the highest rate of incarceration in the

world, dwarfing the rates of nearly every developed country, even

8 T H E N E W J I M   C R O W

surpassing those in highly repressive regimes like Russia, China, and

Iran. In Germany, 93 people are in prison for every 100,000 adults

and children. In the United States, the rate is roughly eight times

that, or 750 per 100,000.8

The racial dimension of mass incarceration is its most striking fea-

ture. No other country in the world imprisons so many of its racial or

ethnic minorities. The United States imprisons a larger percentage of

its black population than South Africa did at the height of apartheid.

In Washington, DC, our nation’s capital, it is estimated that three out

of four young black men (and nearly all those in the poorest neighbor-

hoods) can expect to serve time in prison.9 Similar rates of incarcera-

tion can be found in black communities across America.

These stark racial disparities cannot be explained by rates of drug

crime. Studies show that people of all colors use and sell illegal drugs

at remarkably similar rates.10 If there are significant differences in the

surveys to be found, they frequently suggest that whites, particularly

white youth, are more likely to engage in drug crime than people of

color.11 That is not what one would guess, however, when entering our

nation’s prisons and jails, which are overflowing with black and brown

people convicted of drug crimes. In some states, black men have been

admitted to prison on drug charges at rates twenty to fifty times great-

er than those of white men.12 And in major cities wracked by the drug

war, as many as 80 percent of young African American men now have

criminal records and are thus subject to legalized discrimination for

the rest of their lives.13 These young men are part of a growing under-

caste, permanently locked up and locked out of mainstream society.

It may be surprising to some that drug crime was declining, not rising,

when a drug war was declared. From a historical perspective, however,

the lack of correlation between crime and punishment is nothing new.

Sociologists have frequently observed that governments use punish-

I N T R O D U C T I O N 9

ment primarily as a tool of social control, and thus the extent or sever-

ity of punishment is often unrelated to actual crime patterns. Michael

Tonry explains in Thinking About Crime: “Governments decide how

much punishment they want, and these decisions are in no simple way

related to crime rates.”14 This fact, he points out, can be seen most

clearly by putting crime and punishment in comparative perspective.

Although crime rates in the United States have not been markedly

higher than those of other Western countries, the rate of incarceration

has soared in the United States while it has remained stable or declined

in other countries. Between 1960 and 1990, for example, official crime

rates in Finland, Germany, and the United States were close to identi-

cal. Yet the U.S. incarceration rate quadrupled, the Finnish rate fell by

60 percent, and the German rate was stable in that period.15 Despite

similar crime rates, each government chose to impose different levels

of punishment.

Today, due to recent declines, U.S. crime rates have dipped below

the international norm. Nevertheless, the United States now boasts an

incarceration rate that is six to ten times greater than that of other

industrialized nations16—a development directly traceable to the drug

war. The only country in the world that even comes close to the Ameri-

can rate of incarceration is Russia, and no other country in the world

incarcerates such an astonishing percentage of its racial or ethnic

minorities.

The stark and sobering reality is that, for reasons largely unrelated

to actual crime trends, the American penal system has emerged as a

system of social control unparalleled in world history. And while the

size of the system alone might suggest that it would touch the lives

of most Americans, the primary targets of its control can be defined

largely by race. This is an astonishing development, especially given

that as recently as the mid-1970s, the most well-respected criminolo-

gists were predicting that the prison system would soon fade away.

10 T H E N E W J I M   C R O W

Prison did not deter crime significantly, many experts concluded.

Those who had meaningful economic and social opportunities were

unlikely to commit crimes regardless of the penalty, while those

who went to prison were far more likely to commit crimes again in

the future. The growing consensus among experts was perhaps best

reflected by the National Advisory Commission on Criminal Justice

Standards and Goals, which issued a recommendation in 1973 that “no

new institutions for adults should be built and existing institutions for

juveniles should be closed.”17

This recommendation was based on their finding that “the prison,

the reformatory and the jail have achieved only a shocking record of

failure. There is overwhelming evidence that these institutions create

crime rather than prevent it.”18

These days, activists who advocate “a world without prisons” are

often dismissed as quacks, but only a few decades ago, the notion that

our society would be much better off without prisons—and that the

end of prisons was more or less inevitable—not only dominated main-

stream academic discourse in the field of criminology but also inspired

a national campaign by reformers demanding a moratorium on prison

construction. Marc Mauer, the executive director of the Sentencing

Project, notes that what is most remarkable about the moratorium

campaign in retrospect is the context of imprisonment at the time.

In 1972, fewer than 350,000 people were being held in prisons and

jails nationwide, compared with more than 2 million people today.

The rate of incarceration in 1972 was at a level so low that it no longer

seems in the realm of possibility, but for moratorium supporters, that

magnitude of imprisonment was egregiously high. “Supporters of the

moratorium effort can be forgiven for being so naïve,” Mauer suggests,

“since the prison expansion that was about to take place was unprec-

edented in human history.”19 No one imagined that the prison popula-

tion would more than quintuple in their lifetime. It seemed far more

likely that prisons would fade away.

I N T R O D U C T I O N 1 1

Far from fading away, it appears that prisons are here to stay. And

despite the unprecedented levels of incarceration in the African Amer-

ican community, the civil rights community is oddly quiet. One in

three young African American men will serve time in prison if current

trends continue, and in some cities more than half of all young adult

black men are currently under correctional control—in prison or jail,

on probation or parole.20 Yet mass incarceration tends to be catego-

rized as a criminal justice issue as opposed to a racial justice or civil

rights issue (or crisis).

The attention of civil rights advocates has been largely devoted to

other issues, such as affirmative action. During the past twenty years,

virtually every progressive, national civil rights organization in the

country has mobilized and rallied in defense of affirmative action. The

struggle to preserve affirmative action in higher education, and thus

maintain diversity in the nation’s most elite colleges and universities,

has consumed much of the attention and resources of the civil rights

community and dominated racial justice discourse in the mainstream

media, leading the general public to believe that affirmative action is

the main battlefront in U.S. race relations—even as our prisons fill

with black and brown men.

My own experience reflects this dynamic. When I first joined the

ACLU, no one imagined that the Racial Justice Project would focus its

attention on criminal justice reform. The ACLU was engaged in impor-

tant criminal justice reform work, but no one suspected that work would

eventually become central to the agenda of the Racial Justice Project.

The assumption was that the project would concentrate its efforts on

defending affirmative action. Shortly after leaving the ACLU, I joined

the board of directors of the Lawyers’ Committee for Civil Rights of the

San Francisco Bay Area. Although the organization included racial jus-

tice among its core priorities, reform of the criminal justice system was

not a major part of its racial justice work. It was not alone.

In January 2008, the Leadership Conference on Civil Rights—an

1 2 T H E N E W J I M   C R O W

organization composed of the leadership of more than 180 civil rights

organizations—sent a letter to its allies and supporters informing

them of a major initiative to document the voting record of members

of Congress. The letter explained that its forthcoming report would

show “how each representative and senator cast his or her vote on

some of the most important civil rights issues of 2007, including vot-

ing rights, affirmative action, immigration, nominations, education,

hate crimes, employment, health, housing, and poverty.” Criminal

justice issues did not make the list. That same broad-based coalition

organized a major conference in October 2007, entitled Why We Can’t

Wait: Reversing the Retreat on Civil Rights, which included panels

discussing school integration, employment discrimination, housing

and lending discrimination, economic justice, environmental justice,

disability rights, age discrimination, and immigrants’ rights. Not a

single panel was devoted to criminal justice reform.

The elected leaders of the African American community have a

much broader mandate than civil rights groups, but they, too, fre-

quently overlook criminal justice. In January 2009, for example, the

Congressional Black Caucus sent a letter to hundreds of community

and organization leaders who have worked with the caucus over the

years, soliciting general information about them and requesting that

they identify their priorities. More than thirty-five topics were listed

as areas of potential special interest, including taxes, defense, immi-

gration, agriculture, housing, banking, higher education, multimedia,

transportation and infrastructure, women, seniors, nutrition, faith ini-

tiatives, civil rights, census, economic security, and emerging leaders.

No mention was made of criminal justice. “Re-entry” was listed, but a

community leader who was interested in criminal justice reform had

to check the box labeled “other.”

This is not to say that important criminal justice reform work has

not been done. Civil rights advocates have organized vigorous chal-

lenges to specific aspects of the new caste system. One notable exam-

I N T R O D U C T I O N 13

ple is the successful challenge, led by the NAACP Legal Defense Fund,

to a racist drug sting operation in Tulia, Texas. The 1999 drug bust

incarcerated almost 15 percent of the black population of the town,

based on the uncorroborated false testimony of a single informant

hired by the sheriff of Tulia. More recently, civil rights groups around

the country have helped to launch legal attacks and vibrant grassroots

campaigns against felon disenfranchisement laws and have strenuous-

ly opposed discriminatory crack sentencing laws and guidelines, as

well as “zero tolerance” policies that effectively funnel youth of color

from schools to jails. The national ACLU recently developed a racial

justice program that includes criminal justice issues among its core

priorities and has created a promising Drug Law Reform Project. And

thanks to the aggressive advocacy of the ACLU, the NAACP, and other

civil rights organizations around the country, racial profiling is widely

condemned, even by members of law enforcement who once openly

embraced the practice.

Still, despite these significant developments, there seems to be a

lack of appreciation for the enormity of the crisis at hand. There is

no broad- based movement brewing to end mass incarceration and no

advocacy effort that approaches in scale the fight to preserve affirma-

tive action. There also remains a persistent tendency in the civil rights

community to treat the criminal justice system as just another institu-

tion infected with lingering racial bias. The NAACP’s website offers

one example. As recently as May 2008, one could find a brief introduc-

tion to the organization’s criminal justice work in the section entitled

Legal Department. The introduction explained that “despite the civil

rights victories of our past, racial prejudice still pervades the criminal

justice system.” Visitors to the website were urged to join the NAACP

in order to “protect the hard- earned civil rights gains of the past three

decades.” No one visiting the website would learn that the mass incar-

ceration of African Americans had already eviscerated many of the

hard-earned gains it urged its members to protect.

1 4 T H E N E W J I M   C R O W

Imagine if civil rights organizations and African American leaders

in the 1940s had not placed Jim Crow segregation at the forefront of

their racial justice agenda. It would have seemed absurd, given that

racial segregation was the primary vehicle of racialized social con-

trol in the United States during that period. This book argues that

mass incarceration is, metaphorically, the New Jim Crow and that all

those who care about social justice should fully commit themselves

to dismantling this new racial caste system. Mass incarceration—not

attacks on affirmative action or lax civil rights enforcement—is the

most damaging manifestation of the backlash against the Civil Rights

Movement. The popular narrative that emphasizes the deaths of slav-

ery and Jim Crow and celebrates the nation’s “triumph over race” with

the election of Barack Obama is dangerously misguided. The colorblind

public consensus that prevails in America today—i.e., the widespread

belief that race no longer matters—has blinded us to the realities of

race in our society and facilitated the emergence of a new caste system.

Clearly, much has changed in my thinking about the criminal justice

system since I passed that bright orange poster stapled to a telephone

pole ten years ago. For me, the new caste system is now as obvious as

my own face in the mirror. Like an optical illusion—one in which the

embedded image is impossible to see until its outline is identified—the

new caste system lurks invisibly within the maze of rationalizations

we have developed for persistent racial inequality. It is possible—quite

easy, in fact—never to see the embedded reality. Only after years of

working on criminal justice reform did my own focus finally shift,

and then the rigid caste system slowly came into view. Eventually it

became obvious. Now it seems odd that I could not see it before.

Knowing as I do the difficulty of seeing what most everyone insists

does not exist, I anticipate that this book will be met with skepticism

or something worse. For some, the characterization of mass incarcera-

I N T R O D U C T I O N 15

tion as a “racial caste system” may seem like a gross exaggeration, if not

hyperbole. Yes, we may have “classes” in the United States— vaguely

defined upper, middle, and lower classes—and we may even have an

“underclass” (a group so estranged from mainstream society that it is

no longer in reach of the mythical ladder of opportunity), but we do

not, many will insist, have anything in this country that resembles a

“caste.”

The aim of this book is not to venture into the long- running, vigor-

ous debate in the scholarly literature regarding what does and does not

constitute a caste system. I use the term racial caste in this book the

way it is used in common parlance to denote a stigmatized racial group

locked into an inferior position by law and custom. Jim Crow and slav-

ery were caste systems. So is our current system of mass incarceration.

It may be helpful, in attempting to understand the basic nature of

the new caste system, to think of the criminal justice system—the

entire collection of institutions and practices that comprise it—not

as an independent system but rather as a gateway into a much larger

system of racial stigmatization and permanent marginalization. This

larger system, referred to here as mass incarceration, is a system that

locks people not only behind actual bars in actual prisons, but also

behind virtual bars and virtual walls— walls that are invisible to the

naked eye but function nearly as effectively as Jim Crow laws once

did at locking people of color into a permanent second- class citizen-

ship. The term mass incarceration refers not only to the criminal justice

system but also to the larger web of laws, rules, policies, and customs

that control those labeled criminals both in and out of prison. Once

released from prison, people enter a hidden underworld of legalized

discrimination and permanent social exclusion. They are members of

America’s new undercaste.

The language of caste may well seem foreign or unfamiliar to some.

Public discussions about racial caste in America are relatively rare. We

1 6 T H E N E W J I M   C R O W

avoid talking about caste in our society because we are ashamed of our

racial history. We also avoid talking about race. We even avoid talk-

ing about class. Conversations about class are resisted in part because

there is a tendency to imagine that one’s class reflects upon one’s char-

acter. What is key to America’s understanding of class is the persistent

belief—despite all evidence to the contrary—that anyone, with the

proper discipline and drive, can move from a lower class to a higher

class. We recognize that mobility may be difficult, but the key to our

collective self-image is the assumption that mobility is always possible,

so failure to move up reflects on one’s character. By extension, the fail-

ure of a race or ethnic group to move up reflects very poorly on the

group as a whole.

What is completely missed in the rare public debates today about the

plight of African Americans is that a huge percentage of them are not

free to move up at all. It is not just that they lack opportunity, attend

poor schools, or are plagued by poverty. They are barred by law from

doing so. And the major institutions with which they come into con-

tact are designed to prevent their mobility. To put the matter starkly:

the current system of control permanently locks a huge percentage of

the African American community out of the mainstream society and

economy. The system operates through our criminal justice institu-

tions, but it functions more like a caste system than a system of crime

control. Viewed from this perspective, the so-called underclass is bet-

ter understood as an undercaste—a lower caste of individuals who

are permanently barred by law and custom from mainstream society.

Although this new system of racialized social control purports to be

colorblind, it creates and maintains racial hierarchy much as earlier

systems of control did. Like Jim Crow (and slavery), mass incarcera-

tion operates as a tightly networked system of laws, policies, customs,

and institutions that operate collectively to ensure the subordinate sta-

tus of a group defined largely by race.

This argument may be particularly hard to swallow given the elec-

I N T R O D U C T I O N 1 7

tion of Barack Obama. Many will wonder how a nation that just elected

its first black president could possibly have a racial caste system. It’s a

fair question. But as discussed in chapter 6, there is no inconsistency

whatsoever between the election of Barack Obama to the highest office

in the land and the existence of a racial caste system in the era of col-

orblindness. The current system of control depends on black excep-

tionalism; it is not disproved or undermined by it. Others may wonder

how a racial caste system could exist when most Americans—of all

colors— oppose race discrimination and endorse colorblindness. Yet as

we shall see in the pages that follow, racial caste systems do not require

racial hostility or overt bigotry to thrive. They need only racial indiffer-

ence, as Martin Luther King Jr. warned more than forty-five years ago.

The recent decisions by some state legislatures, most notably New

York’s, to repeal or reduce mandatory drug sentencing laws have led

some to believe that the system of racial control described in this book

is already fading away. Such a conclusion, I believe, is a serious mis-

take. Many of the states that have reconsidered their harsh sentencing

schemes have done so not out of concern for the lives and families

that have been destroyed by these laws or the racial dimensions of

the drug war, but out of concern for bursting state budgets in a time

of economic recession. In other words, the racial ideology that gave

rise to these laws remains largely undisturbed. Changing economic

conditions or rising crime rates could easily result in a reversal of for-

tunes for those who commit drug crimes, particularly if the people

who use or sell drugs are perceived to be black and brown. Equally

important to understand is this: Merely reducing sentence length, by

itself, does not disturb the basic architecture of the New Jim Crow. So

long as large numbers of African Americans continue to be arrested

and labeled drug criminals, they will continue to be relegated to a per-

manent second- class status upon their release, no matter how much

(or how little) time they spend behind bars. The system of mass incar-

ceration is based on the prison label, not prison time.

1 8 T H E N E W J I M   C R O W

Skepticism about the claims made here is warranted. There are

important differences, to be sure, among mass incarceration, Jim Crow,

and slavery—the three major racialized systems of control adopted in

the United States to date. Failure to acknowledge the relevant differ-

ences, as well as their implications, would be a disservice to racial

justice discourse. Many of the differences are not as dramatic as they

initially appear, however; others serve to illustrate the ways in which

systems of racialized social control have managed to morph, evolve,

and adapt to changes in the political, social, and legal context over

time. Ultimately, I believe that the similarities between these systems

of control overwhelm the differences and that mass incarceration, like

its predecessors, has been largely immunized from legal challenge. If

this claim is substantially correct, the implications for racial justice

advocacy are profound. With the benefit of hindsight, surely we can

see that piecemeal policy reform or litigation alone would have been

a futile approach to dismantling Jim Crow segregation. While those

strategies certainly had their place, the Civil Rights Act of 1964 and

the concomitant cultural shift would never have occurred without the

cultivation of a critical political consciousness in the African Amer-

ican community and the widespread, strategic activism that flowed

from it. Likewise, the notion that the New Jim Crow can ever be dis-

mantled through traditional litigation and policy-reform strategies

that are wholly disconnected from a major social movement seems

fundamentally misguided.

Such a movement is impossible, though, if those most committed to

abolishing racial hierarchy continue to talk and behave as if a state-

sponsored racial caste system no longer exists. If we continue to tell

ourselves the popular myths about racial progress or, worse yet, if we

say to ourselves that the problem of mass incarceration is just too big,

too daunting for us to do anything about and that we should instead

direct our energies to battles that might be more easily won, history will

judge us harshly. A human rights nightmare is occurring on our watch.

I N T R O D U C T I O N 19

A new social consensus must be forged about race and the role of

race in defining the basic structure of our society if we hope ever to

abolish the New Jim Crow. This new consensus must begin with dia-

logue, a conversation that fosters a critical consciousness, a key pre-

requisite to effective social action. This book is an attempt to ensure

that the conversation does not end with nervous laughter.

It is not possible to write a relatively short book that explores all

aspects of the phenomenon of mass incarceration and its implications

for racial justice. No attempt has been made to do so here. This book

paints with a broad brush, and as a result, many important issues

have not received the attention they deserve. For example, relatively

little is said here about the unique experience of women, Latinos, and

immigrants in the criminal justice system, though these groups are

particularly vulnerable to the worst abuses and suffer in ways that are

important and distinct. This book focuses on the experience of Afri-

can American men in the new caste system. I hope other scholars and

advocates will pick up where the book leaves off and develop the cri-

tique more fully or apply the themes sketched here to other groups and

other contexts.

What this book is intended to do—the only thing it is intended to

do—is to stimulate a much- needed conversation about the role of the

criminal justice system in creating and perpetuating racial hierarchy in

the United States. The fate of millions of people— indeed the future of

the black community itself—may depend on the willingness of those

who care about racial justice to re- examine their basic assumptions

about the role of the criminal justice system in our society. The fact

that more than half of the young black men in many large American

cities are currently under the control of the criminal justice system (or

saddled with criminal records) is not—as many argue—just a symp-

tom of poverty or poor choices, but rather evidence of a new racial

caste system at work.

2 0 T H E N E W J I M   C R O W

Chapter 1 begins our journey. It briefly reviews the history of racial-

ized social control in the United States, answering the basic question:

How did we get here? The chapter describes the control of African

Americans through racial caste systems, such as slavery and Jim Crow,

which appear to die but then are reborn in new form, tailored to the

needs and constraints of the time. As we shall see, there is a certain

pattern to the births and deaths of racial caste in America. Time and

again, the most ardent proponents of racial hierarchy have succeeded

in creating new caste systems by triggering a collapse of resistance

across the political spectrum. This feat has been achieved largely by

appealing to the racism and vulnerability of lower-class whites, a group

of people who are understandably eager to ensure that they never find

themselves trapped at the bottom of the American totem pole. This

pattern, dating back to slavery, has birthed yet another racial caste

system in the United States: mass incarceration.

The structure of mass incarceration is described in some detail in

chapter 2, with a focus on the War on Drugs. Few legal rules mean-

ingfully constrain the police in the drug war, and enormous finan-

cial incentives have been granted to law enforcement to engage in

mass drug arrests through military-style tactics. Once swept into the

system, one’s chances of ever being truly free are slim, often to the

vanishing point. Defendants are typically denied meaningful legal rep-

resentation, pressured by the threat of lengthy sentences into a plea

bargain, and then placed under formal control—in prison or jail, on

probation or parole. Upon release, people with criminal records are

discriminated against, legally, for the rest of their lives, and most will

eventually return to the system’s formal control. They are members of

America’s new undercaste.

Chapter 3 turns our attention to the role of race in the U.S. criminal

justice system. It describes the method to the madness—how a formally

race-neutral criminal justice system can manage to round up, arrest,

and imprison an extraordinary number of black and brown men, when

I N T R O D U C T I O N 2 1

people of color are actually no more likely to be guilty of drug crimes

and many other offenses than whites. This chapter debunks the notion

that rates of black imprisonment can be explained by crime rates and

identifies the huge racial disparities at every stage of the criminal justice

process—from the initial stop, search, and arrest to the plea bargaining

and sentencing phases. In short, the chapter explains how the legal rules

that structure the system guarantee discriminatory results. These legal

rules ensure that the undercaste is overwhelmingly black and brown.

Chapter 4 considers how the caste system operates once people are

released from prison. In many respects, release from prison does not

represent the beginning of freedom but instead a cruel new phase of

stigmatization and control. Myriad laws, rules, and regulations dis-

criminate against people with criminal records and effectively prevent

their meaningful reintegration into the mainstream economy and soci-

ety. I argue that the shame and stigma of the “prison label” are, in

many respects, more damaging to the African American community

than the shame and stigma associated with Jim Crow. The criminaliza-

tion and demonization of black men have turned the black community

against itself, unraveling community and family relationships, deci-

mating networks of mutual support, and intensifying the shame and

self-hate experienced by the current pariah caste.

The many parallels between mass incarceration and Jim Crow are

explored in chapter 5. The most obvious parallel is legalized discrimi-

nation. Like Jim Crow, mass incarceration marginalizes large segments

of the African American community, segregates them physically (in

prisons, jails, and ghettos), and then authorizes discrimination against

them in voting, employment, housing, education, public benefits, and

jury service. The federal court system has effectively immunized the

current system from challenges on the grounds of racial bias, much

as earlier systems of control were protected and endorsed by the U.S.

Supreme Court. The parallels do not end there, however. Mass incar-

ceration, like Jim Crow, helps to define the meaning and significance of

2 2 T H E N E W J I M   C R O W

race in America. Indeed, the stigma of criminality functions in much

the same way that the stigma of race once did. It justifies a legal, social,

and economic boundary between “us” and “them.” Chapter 5 also

explores some of the differences among slavery, Jim Crow, and mass

incarceration, most significantly the fact that mass incarceration is

designed to warehouse a population deemed disposable—unnecessary

to the functioning of the new global economy—while earlier systems

of control were designed to exploit and control black labor. In addi-

tion, the chapter discusses the experience of white people in this new

caste system; although they have not been the primary targets of the

drug war, they have been harmed by it—a powerful illustration of

how a racial state can harm people of all colors. Finally, this chap-

ter responds to skeptics who claim that mass incarceration cannot be

understood as a racial caste system because many “get tough on crime”

policies are supported by African Americans. Many of these claims, I

note, are no more persuasive today than arguments made a hundred

years ago by blacks and whites who claimed that racial segregation

simply reflected “reality,” not racial animus, and that African Amer-

icans would be better off not challenging the Jim Crow system but

should focus instead on improving themselves within it. Throughout

our history, there have been African Americans who, for a variety of

reasons, have defended or been complicit with the prevailing system

of control.

Chapter 6 reflects on what acknowledging the presence of the New

Jim Crow means for the future of civil rights advocacy. I argue that

nothing short of a major social movement can successfully dismantle

the new caste system. Meaningful reforms can be achieved without

such a movement, but unless the public consensus supporting the cur-

rent system is completely overturned, the basic structure of the new

caste system will remain intact. Building a broad-based social move-

ment, however, is not enough. It is not nearly enough to persuade main-

stream voters that we have relied too heavily on incarceration or that

I N T R O D U C T I O N 2 3

drug abuse is a public health problem, not a crime. If the movement

that emerges to challenge mass incarceration fails to confront squarely

the critical role of race in the basic structure of our society, and if it

fails to cultivate an ethic of genuine care, compassion, and concern for

every human being—of every class, race, and nationality— within our

nation’s borders (including poor whites, who are often pitted against

poor people of color), the collapse of mass incarceration will not mean

the death of racial caste in America. Inevitably a new system of racial-

ized social control will emerge—one that we cannot foresee, just as

the current system of mass incarceration was not predicted by any-

one thirty years ago. No task is more urgent for racial justice advo-

cates today than ensuring that America’s current racial caste system

is its last.

[T]he slave went free; stood a brief moment in the sun; then moved

back again toward slavery.

—W.E.B. Du Bois, Black Reconstruction in America

For more than one hundred years, scholars have written about the illusory nature of the Emancipation Proclamation. President
Abraham Lincoln issued a declaration purporting to free slaves held in

Southern Confederate states, but not a single black slave was actually

free to walk away from a master in those states as a result. A civil war

had to be won first, hundreds of thousands of lives lost, and then—

only then—were slaves across the South set free. Even that freedom

proved illusory, though. As W.E.B. Du Bois eloquently reminds us, for-

mer slaves had “a brief moment in the sun” before they were returned

to a status akin to slavery. Constitutional amendments guaranteeing

African Americans “equal protection of the laws” and the right to vote

proved as impotent as the Emancipation Proclamation once a white

backlash against Reconstruction gained steam. Black people found

themselves yet again powerless and relegated to convict leasing camps

that were, in many ways, worse than slavery. Sunshine gave way to

darkness, and the Jim Crow system of segregation emerged—a system

1
T he R e bi r t h of C a s te

2 6 T H E N E W J I M   C R O W

that put black people nearly back where they began, in a subordinate

racial caste.

Few find it surprising that Jim Crow arose following the collapse of

slavery. The development is described in history books as regrettable

but predictable, given the virulent racism that gripped the South and

the political dynamics of the time. What is remarkable is that hardly

anyone seems to imagine that similar political dynamics may have

produced another caste system in the years following the collapse of

Jim Crow—one that exists today. The story that is told during Black

History Month is one of triumph; the system of racial caste is offi-

cially dead and buried. Suggestions to the contrary are frequently met

with shocked disbelief. The standard reply is: “How can you say that a

racial caste system exists today? Just look at Barack Obama! Just look

at Oprah Winfrey!”

The fact that some African Americans have experienced great suc-

cess in recent years does not mean that something akin to a racial caste

system no longer exists. No caste system in the United States has ever

governed all black people; there have always been “free blacks” and

black success stories, even during slavery and Jim Crow. The superla-

tive nature of individual black achievement today in formerly white

domains is a good indicator that the old Jim Crow is dead, but it does

not necessarily mean the end of racial caste. If history is any guide, it

may have simply taken a different form.

Any candid observer of American racial history must acknowledge

that racism is highly adaptable. The rules and reasons the political

system employs to enforce status relations of any kind, including racial

hierarchy, evolve and change as they are challenged. The valiant efforts

to abolish slavery and Jim Crow and to achieve greater racial equal-

ity have brought about significant changes in the legal framework of

American society—new “rules of the game,” so to speak. These new

rules have been justified by new rhetoric, new language, and a new

social consensus, while producing many of the same results. This

T H E R E B I R T H O F C A S T E 2 7

dynamic, which legal scholar Reva Siegel has dubbed “preservation

through transformation,” is the process through which white privilege

is maintained, though the rules and rhetoric change.1

This process, though difficult to recognize at any given moment, is

easier to see in retrospect. Since the nation’s founding, African Ameri-

cans repeatedly have been controlled through institutions such as slav-

ery and Jim Crow, which appear to die but then are reborn in new

form, tailored to the needs and constraints of the time. As described

in the pages that follow, there is a certain pattern to this cycle. Follow-

ing the collapse of each system of control, there has been a period of

confusion—transition—in which those who are most committed to

racial hierarchy search for new means to achieve their goals within

the rules of the game as currently defined. It is during this period of

uncertainty that the backlash intensifies and a new form of racialized

social control begins to take hold. The adoption of the new system

of control is never inevitable, but to date it has never been avoided.

The most ardent proponents of racial hierarchy have consistently suc-

ceeded in implementing new racial caste systems by triggering a col-

lapse of resistance across the political spectrum. This feat has been

achieved largely by appealing to the racism and vulnerability of lower-

class whites, a group of people who are understandably eager to ensure

that they never find themselves trapped at the bottom of the American

hierarchy.

The emergence of each new system of control may seem sudden, but

history shows that the seeds are planted long before each new institu-

tion begins to grow. For example, although it is common to think of the

Jim Crow regime following immediately on the heels of Reconstruc-

tion, the truth is more complicated. And while it is generally believed

that the backlash against the Civil Rights Movement is defined pri-

marily by the rollback of affirmative action and the undermining of

federal civil rights legislation by a hostile judiciary, the seeds of the

new system of control—mass incarceration—were planted during the

2 8 T H E N E W J I M   C R O W

Civil Rights Movement itself, when it became clear that the old caste

system was crumbling and a new one would have to take its place.

With each reincarnation of racial caste, the new system, as sociolo-

gist Loïc Wacquant puts it, “is less total, less capable of encompassing

and controlling the entire race.”2 However, any notion that this evolu-

tion reflects some kind of linear progress would be misguided, for it is

not at all obvious that it would be better to be incarcerated for life for

a minor drug offense than to live with one’s family, earning an honest

wage under the Jim Crow regime—notwithstanding the ever-present

threat of the Klan. Moreover, as the systems of control have evolved,

they have become perfected, arguably more resilient to challenge, and

thus capable of enduring for generations to come. The story of the

political and economic underpinnings of the nation’s founding sheds

some light on these recurring themes in our history and the reasons

new racial caste systems continue to be born.

The Birth of Slavery

Back there, before Jim Crow, before the invention of the Negro or the

white man or the words and concepts to describe them, the Colonial

population consisted largely of a great mass of white and black bonds-

men, who occupied roughly the same economic category and were

treated with equal contempt by the lords of the plantations and legis-

latures. Curiously unconcerned about their color, these people worked

together and relaxed together.3

—Lerone Bennett Jr.

The concept of race is a relatively recent development. Only in the

past few centuries, owing largely to European imperialism, have

the world’s people been classified along racial lines.4 Here, in America,

the idea of race emerged as a means of reconciling chattel slavery—

T H E R E B I R T H O F C A S T E 2 9

as well as the extermination of American Indians—with the ideals of

freedom preached by whites in the new colonies.

In the early colonial period, when settlements remained relative-

ly small, indentured servitude was the dominant means of securing

cheap labor. Under this system, whites and blacks struggled to survive

against a common enemy, what historian Lerone Bennett Jr. describes

as “the big planter apparatus and a social system that legalized terror

against black and white bondsmen.”5 Initially, blacks brought to this

country were not all enslaved; many were treated as indentured ser-

vants. As plantation farming expanded, particularly tobacco and cot-

ton farming, demand increased greatly for both labor and land.

The demand for land was met by invading and conquering larger

and larger swaths of territory. American Indians became a growing

impediment to white European “progress,” and during this period,

the images of American Indians promoted in books, newspapers,

and magazines became increasingly negative. As sociologists Keith

Kilty and Eric Swank have observed, eliminating “savages” is less

of a moral problem than eliminating human beings, and therefore

American Indians came to be understood as a lesser race—uncivilized

savages—thus providing a justification for the extermination of the

native peoples.6

The growing demand for labor on plantations was met through slav-

ery. American Indians were considered unsuitable as slaves, largely

because native tribes were clearly in a position to fight back. The fear

of raids by Indian tribes led plantation owners to grasp for an alterna-

tive source of free labor. European immigrants were also deemed poor

candidates for slavery, not because of their race, but rather because

they were in short supply and enslavement would, quite naturally,

interfere with voluntary immigration to the new colonies. Planta-

tion owners thus viewed Africans, who were relatively powerless,

as the ideal slaves. The systematic enslavement of Africans, and the

3 0 T H E N E W J I M   C R O W

rearing of their children under bondage, emerged with all deliberate

speed—quickened by events such as Bacon’s Rebellion.

Nathaniel Bacon was a white property owner in Jamestown, Virgin-

ia, who managed to unite slaves, indentured servants, and poor whites

in a revolutionary effort to overthrow the planter elite. Although slaves

clearly occupied the lowest position in the social hierarchy and suf-

fered the most under the plantation system, the condition of inden-

tured whites was barely better, and the majority of free whites lived in

extreme poverty. As explained by historian Edmund Morgan, in colo-

nies like Virginia, the planter elite, with huge land grants, occupied a

vastly superior position to workers of all colors.7 Southern colonies did

not hesitate to invent ways to extend the terms of servitude, and the

planter class accumulated uncultivated lands to restrict the options of

free workers. The simmering resentment against the planter class cre-

ated conditions that were ripe for revolt.

Varying accounts of Bacon’s rebellion abound, but the basic facts are

these: Bacon developed plans in 1675 to seize Native American lands

in order to acquire more property for himself and others and nullify

the threat of Indian raids. When the planter elite in Virginia refused

to provide militia support for his scheme, Bacon retaliated, leading an

attack on the elite, their homes, and their property. He openly con-

demned the rich for their oppression of the poor and inspired an alli-

ance of white and black bond laborers, as well as slaves, who demanded

an end to their servitude. The attempted revolution was ended by force

and false promises of amnesty. A number of the people who participat-

ed in the revolt were hanged. The events in Jamestown were alarming

to the planter elite, who were deeply fearful of the multiracial alliance

of bond workers and slaves. Word of Bacon’s Rebellion spread far and

wide, and several more uprisings of a similar type followed.

In an effort to protect their superior status and economic position,

the planters shifted their strategy for maintaining dominance. They

abandoned their heavy reliance on indentured servants in favor of

T H E R E B I R T H O F C A S T E 3 1

the importation of more black slaves. Instead of importing English-

speaking slaves from the West Indies, who were more likely to be

familiar with European language and culture, many more slaves were

shipped directly from Africa. These slaves would be far easier to con-

trol and far less likely to form alliances with poor whites.

Fearful that such measures might not be sufficient to protect their

interests, the planter class took an additional precautionary step, a

step that would later come to be known as a “racial bribe.” Deliber-

ately and strategically, the planter class extended special privileges

to poor whites in an effort to drive a wedge between them and black

slaves. White settlers were allowed greater access to Native Ameri-

can lands, white servants were allowed to police slaves through slave

patrols and militias, and barriers were created so that free labor would

not be placed in competition with slave labor. These measures effec-

tively eliminated the risk of future alliances between black slaves and

poor whites. Poor whites suddenly had a direct, personal stake in the

existence of a race- based system of slavery. Their own plight had not

improved by much, but at least they were not slaves. Once the planter

elite split the labor force, poor whites responded to the logic of their

situation and sought ways to expand their racially privileged position.8

By the mid-1770s, the system of bond labor had been thoroughly

transformed into a racial caste system predicated on slavery. The

degraded status of Africans was justified on the ground that Negros,

like the Indians, were an uncivilized lesser race, perhaps even more

lacking in intelligence and laudable human qualities than the red-

skinned natives. The notion of white supremacy rationalized the

enslavement of Africans, even as whites endeavored to form a new

nation based on the ideals of equality, liberty, and justice for all. Before

democracy, chattel slavery in America was born.

It may be impossible to overstate the significance of race in defining

the basic structure of American society. The structure and content of

the original Constitution was based largely on the effort to preserve a

3 2 T H E N E W J I M   C R O W

racial caste system—slavery—while at the same time affording politi-

cal and economic rights to whites, especially propertied whites. The

Southern slaveholding colonies would agree to form a union only on

the condition that the federal government would not be able to inter-

fere with the right to own slaves. Northern white elites were sympa-

thetic to the demand for their “property rights” to be respected, as

they, too, wanted the Constitution to protect their property interests.

As James Madison put it, the nation ought to be constituted “to protect

the minority of the opulent against the majority.”9 Consequently, the

Constitution was designed so the federal government would be weak,

not only in its relationship to private property, but also in relation-

ship to the rights of states to conduct their own affairs. The language

of the Constitution itself was deliberately colorblind (the words slave

or Negro were never used), but the document was built upon a com-

promise regarding the prevailing racial caste system. Federalism—the

division of power between the states and the federal government—was

the device employed to protect the institution of slavery and the politi-

cal power of slaveholding states. Even the method for determining pro-

portional representation in Congress and identifying the winner of

a presidential election (the Electoral College) were specifically devel-

oped with the interest of slaveholders in mind. Under the terms of our

country’s founding document, slaves were defined as three-fifths of a

person not a real, whole human being. Upon this racist fiction rests the

entire structure of American democracy.

The Death of Slavery

The history of racial caste in the United States would end with the

Civil War if the idea of race and racial difference had died when the

institution of slavery was put to rest. But during the four centuries in

which slavery flourished, the idea of race flourished as well. Indeed,

the notion of racial difference—specifically the notion of white

T H E R E B I R T H O F C A S T E 3 3

supremacy— proved far more durable than the institution that gave

birth to it.

White supremacy, over time, became a religion of sorts. Faith in

the idea that people of the African race were bestial, that whites were

inherently superior, and that slavery was, in fact, for blacks’ own good,

served to alleviate the white conscience and reconcile the tension

between slavery and the democratic ideals espoused by whites in the

so- called New World. There was no contradiction in the bold claim

made by Thomas Jefferson in the Declaration of Independence that

“all men are created equal” if Africans were not really people. Racism

operated as a deeply held belief system based on “truths” beyond ques-

tion or doubt. This deep faith in white supremacy not only justified an

economic and political system in which plantation owners acquired

land and great wealth through the brutality, torture, and coercion of

other human beings; it also endured, like most articles of faith, long

after the historical circumstances that gave rise to the religion passed

away. In Wacquant’s words: “Racial division was a consequence, not a

precondition of slavery, but once it was instituted it became detached

from its initial function and acquired a social potency all its own.”10

After the death of slavery, the idea of race lived on.

One of the most compelling accounts of the postemancipation peri-

od is The Strange Career of Jim Crow, written by C. Vann Woodward in

1955.11 The book continues to be the focal point of study and debate by

scholars and was once described by Martin Luther King Jr. as the “his-

torical bible of the Civil Rights Movement.” As Woodward tells the sto-

ry, the end of slavery created an extraordinary dilemma for Southern

white society. Without the labor of former slaves, the region’s economy

would surely collapse, and without the institution of slavery, there was

no longer a formal mechanism for maintaining racial hierarchy and

preventing “amalgamation” with a group of people considered intrinsi-

cally inferior and vile. This state of affairs produced a temporary anar-

chy and a state of mind bordering on hysteria, particularly among the

3 4 T H E N E W J I M   C R O W

planter elite. But even among poor whites, the collapse of slavery was

a bitter pill. In the antebellum South, the lowliest white person at least

possessed his or her white skin—a badge of superiority over even the

most skilled slave or prosperous free African American.

While Southern whites—poor and rich alike—were utterly out-

raged by emancipation, there was no obvious solution to the dilemma

they faced. Following the Civil War, the economic and political infra-

structure of the South was in shambles. Plantation owners were sud-

denly destitute, and state governments, shackled by war debt, were

penniless. Large amounts of real estate and other property had been

destroyed in the war, industry was disorganized, and hundreds of

thousands of men had been killed or maimed. With all of this went the

demoralizing effect of an unsuccessful war and the extraordinary chal-

lenges associated with rebuilding new state and local governments.

Add to all this the sudden presence of 4 million newly freed slaves, and

the picture becomes even more complicated. Southern whites, Wood-

ward explains, strongly believed that a new system of racial control

was clearly required, but it was not immediately obvious what form it

should take.

Under slavery, the racial order was most effectively maintained by

a large degree of contact between slave owners and slaves, thus maxi-

mizing opportunities for supervision and discipline, and minimizing

the potential for active resistance or rebellion. Strict separation of the

races would have threatened slaveholders’ immediate interests and

was, in any event, wholly unnecessary as a means of creating social

distance or establishing the inferior status of slaves.

Following the Civil War, it was unclear what institutions, laws,

or customs would be necessary to maintain white control now that

slavery was gone. Nonetheless, as numerous historians have shown,

the development of a new racial order became the consuming passion

for most white Southerners. Rumors of a great insurrection terrified

whites, and blacks increasingly came to be viewed as menacing and

T H E R E B I R T H O F C A S T E 3 5

dangerous. In fact, the current stereotypes of black men as aggressive,

unruly predators can be traced to this period, when whites feared that

an angry mass of black men might rise up and attack them or rape

their women.

Equally worrisome was the state of the economy. Former slaves lit-

erally walked away from their plantations, causing panic and outrage

among plantation owners. Large numbers of former slaves roamed the

highways in the early years after the war. Some converged on towns

and cities; others joined the federal militia. Most white people believed

African Americans lacked the proper motivation to work, prompting

the provisional Southern legislatures to adopt the notorious black

codes. As expressed by one Alabama planter: “We have the power to

pass stringent police laws to govern the Negroes—this is a blessing—

for they must be controlled in some way or white people cannot live

among them.”12 While some of these codes were intended to establish

systems of peonage resembling slavery, others foreshadowed Jim Crow

laws by prohibiting, among other things, interracial seating in the

first-class sections of railroad cars and by segregating schools.

Although the convict laws enacted during this period are rarely seen

as part of the black codes, that is a mistake. As explained by histo-

rian William Cohen, “the main purpose of the codes was to control

the freedmen, and the question of how to handle convicted black law

breakers was very much at the center of the control issue.”13 Nine South-

ern states adopted vagrancy laws—which essentially made it a crimi-

nal offense not to work and were applied selectively to blacks—and

eight of those states enacted convict laws allowing for the hiring-out

of people in county prisons to plantation owners and private compa-

nies. People trapped in this system were forced to work for little or no

pay. One vagrancy act specifically provided that “all free negroes and

mulattoes over the age of eighteen” must have written proof of a job at

the beginning of every year. Those found with no lawful employment

were deemed vagrants and convicted. Clearly, the purpose of the black

3 6 T H E N E W J I M   C R O W

codes in general and the vagrancy laws in particular was to establish

another system of forced labor. In W.E.B. Du Bois’s words: “The Codes

spoke for themselves. . . . No open-minded student can read them with-

out being convinced they meant nothing more nor less than slavery in

daily toil.”14

Ultimately, the black codes were overturned, and a slew of federal

civil rights legislation protecting the newly freed slaves was passed

during the relatively brief but extraordinary period of black advance-

ment known as the Reconstruction Era. The impressive legislative

achievements of this period include the Thirteenth Amendment, abol-

ishing slavery; the Civil Rights Act of 1866, bestowing full citizenship

upon African Americans; the Fourteenth Amendment, prohibiting

states from denying citizens due process and “equal protection of

the laws”; the Fifteenth Amendment, providing that the right to vote

should not be denied on account of race; and the Ku Klux Klan Acts,

which, among other things, declared interference with voting a federal

offense and the violent infringement of civil rights a crime. The new

legislation also provided for federal supervision of voting and autho-

rized the president to send the army and suspend the writ of habeas

corpus in districts declared to be in a state of insurrection against the

federal government.

In addition to federal civil rights legislation, the Reconstruction Era

brought the expansion of the Freedmen’s Bureau, the agency charged

with the responsibility of providing food, clothing, fuel, and other

forms of assistance to destitute former slaves. A public education

system emerged in the South, which afforded many blacks (and poor

whites) their first opportunity to learn to read and write.

While the Reconstruction Era was fraught with corruption and argu-

ably doomed by the lack of land reform, the sweeping economic and

political developments in that period did appear, at least for a time, to

have the potential to seriously undermine, if not completely eradicate,

the racial caste system in the South. With the protection of federal

T H E R E B I R T H O F C A S T E 3 7

troops, African Americans began to vote in large numbers and seize

control, in some areas, of the local political apparatus. Literacy rates

climbed, and educated blacks began to populate legislatures, open

schools, and initiate successful businesses. In 1867, at the dawn of the

Reconstruction Era, no black man held political office in the South,

yet three years later, at least 15 percent of all Southern elected officials

were black. This is particularly extraordinary in light of the fact that

fifteen years after the passage of the Voting Rights Act of 1965—the

high water mark of the Civil Rights Movement— fewer than 8 percent

of all Southern elected officials were black.15

At the same time, however, many of the new civil rights laws were

proving largely symbolic.16 Notably absent from the Fifteenth Amend-

ment, for example, was language prohibiting the states from imposing

educational, residential, or other qualifications for voting, thus leav-

ing the door open to the states to impose poll taxes, literacy tests, and

other devices to prevent blacks from voting. Other laws revealed them-

selves as more an assertion of principle than direct federal intervention

into Southern affairs, because enforcement required African Ameri-

cans to take their cases to federal courts, a costly and time-consuming

procedure that was a practical impossibility for the vast majority of

those who had claims. Most blacks were too poor to sue to enforce

their civil rights, and no organization like the NAACP yet existed to

spread the risks and costs of litigation. Moreover, the threat of vio-

lence often deterred blacks from pressing legitimate claims, making

the “civil rights” of former slaves largely illusory—existing on paper

but rarely to be found in real life.

Meanwhile, the separation of the races had begun to emerge as a com-

prehensive pattern throughout the South, driven in large part by the

rhetoric of the planter elite, who hoped to reestablish a system of control

that would ensure a low-paid, submissive labor force. Racial segregation

had actually begun years earlier in the North, as an effort to prevent

race-mixing and preserve racial hierarchy following the abolition of

3 8 T H E N E W J I M   C R O W

Northern slavery. It had never developed, however, into a comprehen-

sive system—operating instead largely as a matter of custom, enforced

with varying degrees of consistency. Even among those most hostile to

Reconstruction, few would have predicted that racial segregation would

soon evolve into a new racial caste system as stunningly comprehensive

and repressive as the one that came to be known simply as Jim Crow.

The Birth of Jim Crow

The backlash against the gains of African Americans in the Recon-

struction Era was swift and severe. As African Americans obtained

political power and began the long march toward greater social and

economic equality, whites reacted with panic and outrage. Southern

conservatives vowed to reverse Reconstruction and sought the “abo-

lition of the Freedmen’s Bureau and all political instrumentalities

designed to secure Negro supremacy.”17 Their campaign to “redeem”

the South was reinforced by a resurgent Ku Klux Klan, which fought

a terrorist campaign against Reconstruction governments and local

leaders, complete with bombings, lynchings, and mob violence.

The terrorist campaign proved highly successful. “Redemption”

resulted in the withdrawal of federal troops from the South and the

effective abandonment of African Americans and all those who had

fought for or supported an egalitarian racial order. The federal govern-

ment no longer made any effort to enforce federal civil rights legisla-

tion, and funding for the Freedmen’s Bureau was slashed to such a

degree that the agency became virtually defunct.

Once again, vagrancy laws and other laws defining activities such

as “mischief ” and “insulting gestures” as crimes were enforced vig-

orously against blacks. The aggressive enforcement of these criminal

offenses opened up an enormous market for convict leasing, in which

prisoners were contracted out as laborers to the highest private bidder.

Douglas Blackmon, in Slavery by Another Name, describes how tens

T H E R E B I R T H O F C A S T E 3 9

of thousands of African Americans were arbitrarily arrested during

this period, many of them hit with court costs and fines, which had

to be worked off in order to secure their release.18 With no means to

pay off their “debts,” people in prisons were sold as forced laborers to

lumber camps, brickyards, railroads, farms, plantations, and dozens

of corporations throughout the South. Death rates were shockingly

high, for the private contractors had no interest in the health and well-

being of their laborers, unlike the earlier slave-owners who needed

their slaves, at a minimum, to be healthy enough to survive hard labor.

Laborers were subject to almost continual lashing by long horse whips,

and those who collapsed due to injuries or exhaustion were often left

to die.

Convicts had no meaningful legal rights at this time and no effective

redress. They were understood, quite literally, to be slaves of the state.

The Thirteenth Amendment to the U.S. Constitution had abolished

slavery but allowed one major exception: slavery remained appropri-

ate as punishment for a crime. In a landmark decision by the Virginia

Supreme Court, Ruffin v. Commonwealth, issued at the height of South-

ern Redemption, the court put to rest any notion that convicts were

legally distinguishable from slaves:

For a time, during his service in the penitentiary, he is in

a state of penal servitude to the State. He has, as a con-

sequence of his crime, not only forfeited his liberty, but

all his personal rights except those which the law in its

humanity accords to him. He is for the time being a slave

of the State. He is civiliter mortus; and his estate, if he has

any, is administered like that of a dead man.19

The state of Mississippi eventually moved from hiring convict labor

to organizing its own convict labor camp, known as Parchman Farm.

It was not alone. During the decade following Redemption, the convict

4 0 T H E N E W J I M   C R O W

population grew ten times faster than the general population: “Pris-

oners became younger and blacker, and the length of their sentences

soared.”20 It was the nation’s first prison boom and, as they are today,

those taken prisoner were disproportionately black. After a brief peri-

od of progress during Reconstruction, African Americans found them-

selves, once again, virtually defenseless. The criminal justice system

was strategically employed to force African Americans back into a sys-

tem of extreme repression and control, a tactic that would continue to

prove successful for generations to come. Even as convict leasing faded

away, strategic forms of exploitation and repression emerged anew. As

Blackmon notes: “The apparent demise . . . of leasing prisoners seemed

a harbinger of a new day. But the harsher reality of the South was that

the new post–Civil War neoslavery was evolving—not disappearing.”21

Redemption marked a turning point in the quest by dominant

whites for a new racial equilibrium, a racial order that would protect

their economic, political, and social interests in a world without slav-

ery. Yet a clear consensus among whites about what the new racial

order should be was still lacking. The Redeemers who overthrew

Reconstruction were inclined to retain such segregation practices as

had already emerged, but they displayed no apparent disposition to

expand or universalize the system.

Three alternative philosophies of race relations were put forward to

compete for the region’s support, all of which rejected the doctrines of

extreme racism espoused by some Redeemers: liberalism, conserva-

tism, and radicalism.22 The liberal philosophy of race relations empha-

sized the stigma of segregation and the hypocrisy of a government

that celebrates freedom and equality yet denies both on account of

race. This philosophy, born in the North, never gained much traction

among Southern whites or blacks.

The conservative philosophy, by contrast, attracted wide support

and was implemented in various contexts over a considerable period

of time. Conservatives blamed liberals for pushing blacks ahead of

T H E R E B I R T H O F C A S T E 4 1

their proper station in life and placing blacks in positions they were

unprepared to fill, a circumstance that had allegedly contributed to

their downfall. They warned blacks that some Redeemers were not

satisfied with having decimated Reconstruction, and were prepared

to wage an aggressive war against blacks throughout the South. With

some success, the conservatives reached out to African American vot-

ers, reminding them that they had something to lose as well as gain

and that the liberals’ preoccupation with political and economic equal-

ity presented the danger of losing all that blacks had so far gained.

The radical philosophy offered, for many African Americans, the

most promise. It was predicated on a searing critique of large corpora-

tions, particularly railroads, and the wealthy elite in the North and

South. The radicals of the late nineteenth century, who later formed

the Populist Party, viewed the privileged classes as conspiring to

keep poor whites and blacks locked into a subordinate political and

economic position. For many African American voters, the Popu-

list approach was preferable to the paternalism of liberals. Populists

preached an “equalitarianism of want and poverty, the kinship of a

common grievance, and a common oppressor.”23 As described by Tom

Watson, a prominent Populist leader, in a speech advocating a union

between black and white farmers: “You are kept apart that you may be

separately fleeced of your earnings. You are made to hate each other

because upon that hatred is rested the keystone of the arch of financial

despotism that enslaves you both. You are deceived and blinded that

you may not see how this race antagonism perpetuates a monetary

system which beggars both.”24

In an effort to demonstrate their commitment to a genuinely multira-

cial, working-class movement against white elites, the Populists made

strides toward racial integration, a symbol of their commitment to

class-based unity. African Americans throughout the South responded

with great hope and enthusiasm, eager to be true partners in a struggle

for social justice. According to Woodward, “It is altogether probable

4 2 T H E N E W J I M   C R O W

that during the brief Populist upheaval in the nineties Negroes and

native whites achieved a greater comity of mind and harmony of politi-

cal purpose than ever before or since in the South.”25

The challenges inherent in creating the alliance sought by the Pop-

ulists were formidable, as race prejudice ran the highest among the

very white populations to which the Populist appeal was specifically

addressed—the depressed lower economic classes. Nevertheless, the

Populist movement initially enjoyed remarkable success in the South,

fueled by a wave of discontent aroused by the severe agrarian depres-

sion of the 1880s and 1890s. The Populists took direct aim at the

conservatives, who were known as comprising a party of privilege,

and they achieved a stunning series of political victories throughout

the region. Alarmed by the success of the Populists and the apparent

potency of the alliance between poor and working-class whites and

African Americans, the conservatives raised the cry of white suprem-

acy and resorted to the tactics they had employed in their quest for

Redemption, including fraud, intimidation, bribery, and terror.

Segregation laws were proposed as part of a deliberate effort to

drive a wedge between poor whites and African Americans. These dis-

criminatory barriers were designed to encourage lower-class whites to

retain a sense of superiority over blacks, making it far less likely that

they would sustain interracial political alliances aimed at toppling the

white elite. The laws were, in effect, another racial bribe. As William

Julius Wilson has noted, “As long as poor whites directed their hatred

and frustration against the black competitor, the planters were relieved

of class hostility directed against them.”26 Indeed, in order to overcome

the well-founded suspicions of poor and illiterate whites that they, as

well as blacks, were in danger of losing the right to vote, the leaders of

the movement pursued an aggressive campaign of white supremacy in

every state prior to black disenfranchisement.

Ultimately, the Populists caved to the pressure and abandoned their

former allies. “While the [Populist] movement was at the peak of

T H E R E B I R T H O F C A S T E 4 3

zeal,” Woodward observed, “the two races had surprised each other

and astonished their opponents by the harmony they achieved and the

good will with which they co- operated.”27 But when it became clear

that the conservatives would stop at nothing to decimate their alli-

ance, the biracial partnership dissolved, and Populist leaders realigned

themselves with conservatives. Even Tom Watson, who had been

among the most forceful advocates for an interracial alliance of farm-

ers, concluded that Populist principles could never be fully embraced

by the South until blacks were eliminated from politics.

The agricultural depression, taken together with a series of failed

reforms and broken political promises, had pyramided to a climax of

social tensions. Dominant whites concluded that it was in their politi-

cal and economic interest to scapegoat blacks, and “permission to

hate” came from sources that had formerly denied it, including North-

ern liberals eager to reconcile with the South, Southern conservatives

who had once promised blacks protection from racial extremism, and

Populists, who cast aside their dark-skinned allies when the partner-

ship fell under siege.28

History seemed to repeat itself. Just as the white elite had success-

fully driven a wedge between poor whites and blacks following Bacon’s

Rebellion by creating the institution of black slavery, another racial

caste system was emerging nearly two centuries later, in part due to

efforts by white elites to decimate a multiracial alliance of poor people.

By the turn of the twentieth century, every state in the South had laws

on the books that disenfranchised blacks and discriminated against

them in virtually every sphere of life, lending sanction to a racial ostra-

cism that extended to schools, churches, housing, jobs, restrooms,

hotels, restaurants, hospitals, orphanages, prisons, funeral homes,

morgues, and cemeteries. Politicians competed with each other by

proposing and passing ever more stringent, oppressive, and downright

ridiculous legislation (such as laws specifically prohibiting blacks and

whites from playing chess together). The public symbols and constant

4 4 T H E N E W J I M   C R O W

reminders of black subjugation were supported by whites across the

political spectrum, though the plight of poor whites remained largely

unchanged. For them, the racial bribe was primarily psychological.

The new racial order, known as Jim Crow—a term apparently

derived from a minstrel show character—was regarded as the “final

settlement,” the “return to sanity,” and “the permanent system.”29 Of

course, the earlier system of racialized social control—slavery—had

also been regarded as final, sane, and permanent by its supporters.

Like the earlier system, Jim Crow seemed “natural,” and it became dif-

ficult to remember that alternative paths were not only available at one

time, but nearly embraced.

The Death of Jim Crow

Scholars have long debated the beginning and end of Reconstruction,

as well as exactly when Jim Crow ended and the Civil Rights Move-

ment or “Second Reconstruction” began. Reconstruction is most typ-

ically described as stretching from 1863, when the North freed the

slaves, to 1877, when it abandoned them and withdrew federal troops

from the South. There is much less certainty regarding the beginning

of the end of Jim Crow.

The general public typically traces the death of Jim Crow to Brown

v. Board of Education, although the institution was showing signs of

weakness years before. By 1945, a growing number of whites in the

North had concluded that the Jim Crow system would have to be mod-

ified, if not entirely overthrown. This consensus was due to a num-

ber of factors, including the increased political power of blacks due

to migration to the North and the growing membership and influence

of the NAACP, particularly its highly successful legal campaign chal-

lenging Jim Crow laws in federal courts. Far more important in the

view of many scholars, however, is the influence of World War II. The

blatant contradiction between the country’s opposition to the crimes

T H E R E B I R T H O F C A S T E 4 5

of the Third Reich against European Jews and the continued existence

of a racial caste system in the United States was proving embarrassing,

severely damaging the nation’s credibility as leader of the “free world.”

There was also increased concern that, without greater equality for

African Americans, blacks would become susceptible to communist

influence, given Russia’s commitment to both racial and economic

equality. In Gunnar Myrdal’s highly influential book An American

Dilemma, published in 1944, Myrdal made a passionate plea for inte-

gration based on the theory that the inherent contradiction between

the “American Creed” of freedom and equality and the treatment of

African Americans was not only immoral and profoundly unjust, but

was also against the economic and foreign policy interests of the Unit-

ed States.30

The Supreme Court seemed to agree. In 1944, in Smith v. Allwright,

the Supreme Court ended the use of the all-white primary election; and

in 1946, the Court ruled that state laws requiring segregation on inter-

state buses were unconstitutional. Two years later, the Court voided

any real estate agreements that racially discriminated against purchas-

ers, and in 1949, the Court ruled that Texas’s segregated law school for

blacks was inherently unequal and inferior in every respect to its law

school for whites. In 1950, in McLaurin v. Oklahoma, it declared that

Oklahoma had to desegregate its law school. Thus, even before Brown,

the Supreme Court had already begun to set in motion a striking pat-

tern of desegregation.

Brown v. Board of Education was unique, however. It signaled the end

of “home rule” in the South with respect to racial affairs. Earlier deci-

sions had chipped away at the “separate but equal” doctrine, yet Jim

Crow had managed to adapt to the changing legal environment, and

most Southerners had remained confident that the institution would

survive. Brown threatened not only to abolish segregation in public

schools, but also, by implication, the entire system of legalized dis-

crimination in the South. After more than fifty years of nearly complete

4 6 T H E N E W J I M   C R O W

deference to Southern states and noninterference in their racial affairs,

Brown suggested a reversal in course.

A mood of outrage and defiance swept the South, not unlike the

reaction to emancipation and Reconstruction following the Civil War.

Again, racial equality was being forced upon the South by the federal

government, and by 1956, Southern white opposition to desegregation

mushroomed into a vicious backlash. In Congress, North Carolina

senator Sam Ervin Jr. drafted a racist polemic, the “Southern Mani-

festo,” which vowed to fight to maintain Jim Crow by all legal means.

Ervin succeeded in obtaining the support of 101 out of 128 members

of Congress from the eleven original Confederate states.

A fresh wave of white terror was hurled at those who supported the

dismantling of Jim Crow. White Citizens’ Councils were formed in

almost every Southern city and backwater town, comprised primarily

of middle- to upper-middle-class whites in business and the clergy.

Just as Southern legislatures had passed the black codes in response

to the early steps of Reconstruction, in the years immediately follow-

ing Brown v. Board, five Southern legislatures passed nearly fifty new

Jim Crow laws. In the streets, resistance turned violent. The Ku Klux

Klan reasserted itself as a powerful terrorist organization, committing

castrations, killings, and the bombing of black homes and churches.

NAACP leaders were beaten, pistol-whipped, and shot. As quickly as

it began, desegregation across the South ground to a halt. In 1958,

thirteen school systems were desegregated; in 1960, only seventeen.31

In the absence of a massive, grassroots movement directly challeng-

ing the racial caste system, Jim Crow might be alive and well today. Yet

in the 1950s, a civil rights movement was brewing, emboldened by the

Supreme Court’s decisions and a shifting domestic and international

political environment. With extraordinary bravery, civil rights lead-

ers, activists, and progressive clergy launched boycotts, marches, and

sit-ins protesting the Jim Crow system. They endured fire hoses, police

dogs, bombings, and beatings by white mobs, as well as by the police.

T H E R E B I R T H O F C A S T E 4 7

Once again, federal troops were sent to the South to provide protection

for blacks attempting to exercise their civil rights, and the violent reac-

tion of white racists was met with horror in the North.

The dramatic high point of the Civil Rights Movement occurred in

1963. The Southern struggle had grown from a modest group of black

students demonstrating peacefully at one lunch counter to the largest

mass movement for racial reform and civil rights in the twentieth cen-

tury. Between autumn 1961 and spring 1963, twenty thousand men,

women, and children had been arrested. In 1963 alone, another fifteen

thousand were imprisoned, and one thousand desegregation protests

occurred across the region, in more than one hundred cities.32

On June 12, 1963, President Kennedy announced that he would

deliver to Congress a strong civil rights bill, a declaration that trans-

formed him into a widely recognized ally of the Civil Rights Move-

ment. Following Kennedy’s assassination, President Johnson professed

his commitment to the goal of “the full assimilation of more than

twenty million Negroes into American life,” and ensured the pas-

sage of comprehensive civil rights legislation. The Civil Rights Act of

1964 formally dismantled the Jim Crow system of discrimination in

public accommodations, employment, voting, education, and feder-

ally financed activities. The Voting Rights Act of 1965 arguably had

even greater scope, as it rendered illegal numerous discriminatory

barriers to effective political participation by African Americans and

mandated federal review of all new voting regulations so that it would

be possible to determine whether their use would perpetuate voting

discrimination.

Within five years, the effects of the civil rights revolution were

undeniable. Between 1964 and 1969, the percentage of African Ameri-

can adults registered to vote in the South soared. In Alabama the rate

leaped from 19.3 percent to 61.3 percent; in Georgia, 27.4 percent to

60.4 percent; in Louisiana, 31.6 percent to 60.8 percent; and in Mis-

sissippi, 6.7 percent to 66.5 percent.33 Suddenly black children could

4 8 T H E N E W J I M   C R O W

shop in department stores, eat at restaurants, drink from water foun-

tains, and go to amusement parks that were once off-limits. Miscege-

nation laws were declared unconstitutional, and the rate of interracial

marriage climbed.

While dramatic progress was apparent in the political and social

realms, civil rights activists became increasingly concerned that,

without major economic reforms, the vast majority of blacks would

remain locked in poverty. Thus at the peak of the Civil Rights Move-

ment, activists and others began to turn their attention to economic

problems, arguing that socioeconomic inequality interacted with rac-

ism to produce crippling poverty and related social problems. Eco-

nomic issues emerged as a major focus of discontent. As political

scientists Frances Fox Piven and Richard Cloward have described,

“blacks became more indignant over their condition—not only as an

oppressed racial minority in a white society but as poor people in an

affluent one.”34 Activists organized boycotts, picket lines, and demon-

strations to attack discrimination in access to jobs and the denial of

economic opportunity.

Perhaps the most famous demonstration in support of economic jus-

tice is the March on Washington for Jobs and Economic Freedom in

August 1963. The wave of activism associated with economic justice

helped to focus President Kennedy’s attention on poverty and black

unemployment. In the summer of 1963, he initiated a series of staff

studies on those subjects. By the end of the summer, he declared his

intention to make the eradication of poverty a key legislative objective

in 1964.35 Following Kennedy’s assassination, President Lyndon John-

son embraced the antipoverty rhetoric with great passion, calling for

an “unconditional war on poverty,” in his State of the Union Address

in January 1964. Weeks later he proposed to Congress the Economic

Opportunities Bill of 1964.

The shift in focus served to align the goals of the Civil Rights Move-

ment with key political goals of poor and working-class whites, who

T H E R E B I R T H O F C A S T E 4 9

were also demanding economic reforms. As the Civil Rights Move-

ment began to evolve into a “Poor People’s Movement,” it promised to

address not only black poverty, but white poverty as well—thus rais-

ing the specter of a poor and working-class movement that cut across

racial lines. Martin Luther King Jr. and other civil rights leaders made

it clear that they viewed the eradication of economic inequality as the

next front in the “human rights movement” and made great efforts

to build multiracial coalitions that sought economic justice for all.

Genuine equality for black people, King reasoned, demanded a radi-

cal restructuring of society, one that would address the needs of the

black and white poor throughout the country. Shortly before his assas-

sination, he envisioned bringing to Washington, DC, thousands of the

nation’s disadvantaged in an interracial alliance that embraced rural

and ghetto blacks, Appalachian whites, Mexican Americans, Puerto

Ricans, and Native Americans to demand jobs and income—the right

to live. In a speech delivered in 1968, King acknowledged there had

been some progress for blacks since the passage of the Civil Rights Act

of 1964, but insisted that the current challenges required even greater

resolve and that the entire nation must be transformed for economic

justice to be more than a dream for poor people of all colors. As histori-

an Gerald McKnight observes, “King was proposing nothing less than

a radical transformation of the Civil Rights Movement into a popu-

list crusade calling for redistribution of economic and political power.

America’s only civil rights leader was now focusing on class issues and

was planning to descend on Washington with an army of poor to shake

the foundations of the power structure and force the government to

respond to the needs of the ignored underclass.”36

With the success of the Civil Rights Movement and the launching of

the Poor People’s Movement, it was apparent to all that a major disrup-

tion in the nation’s racial equilibrium had occurred. Yet as we shall see

below, Negroes stood only a “brief moment in the sun.” Conservative

whites began, once again, to search for a new racial order that would

50 T H E N E W J I M   C R O W

conform to the needs and constraints of the time. This process took

place with the understanding that whatever the new order would be, it

would have to be formally race-neutral—it could not involve explicit

or clearly intentional race discrimination. A similar phenomenon had

followed slavery and Reconstruction, as white elites struggled to define

a new racial order with the understanding that whatever the new order

would be, it could not include slavery. Jim Crow eventually replaced

slavery, but now it too had died, and it was unclear what might take its

place. Barred by law from invoking race explicitly, those committed to

racial hierarchy were forced to search for new means of achieving their

goals according to the new rules of American democracy.

History reveals that the seeds of the new system of control were

planted well before the end of the Civil Rights Movement. A new race-

neutral language was developed for appealing to old racist sentiments,

a language accompanied by a political movement that succeeded in

putting the vast majority of blacks back in their place. Proponents

of racial hierarchy found they could install a new racial caste sys-

tem without violating the law or the new limits of acceptable politi-

cal discourse by demanding “law and order” rather than “segregation

forever.”

The Birth of Mass Incarceration

The rhetoric of “law and order” was first mobilized in the late 1950s as

Southern governors and law enforcement officials attempted to gener-

ate and mobilize white opposition to the Civil Rights Movement. In

the years following Brown v. Board of Education, civil rights activists

used direct-action tactics in an effort to force reluctant Southern states

to desegregate public facilities. Southern governors and law enforce-

ment officials often characterized these tactics as criminal and argued

that the rise of the Civil Rights Movement was indicative of a break-

down of law and order. Fire departments regularly used powerful

hoses to break up rallies supporting desegregation, and police force-

T H E R E B I R T H O F C A S T E 5 1

fully cracked down on marches throughout the South—often working

with the Ku Klux Klan and other racial terror groups to lynch, torture,

or imprison black people, especially black activists. Support of civil

rights legislation was derided by Southern conservatives as merely

“rewarding lawbreakers.”

For more than a decade—from the mid- 1950s until the late

1960s— conservatives systematically and strategically linked opposi-

tion to civil rights legislation to calls for law and order, arguing that

Martin Luther King Jr.’s philosophy of civil disobedience was a leading

cause of crime. Civil rights protests were frequently depicted as crimi-

nal rather than political in nature, and federal courts were accused of

excessive “lenience” toward lawlessness, thereby contributing to the

spread of crime. In the words of former vice president Richard Nixon

as he campaigned for the presidency, the increasing crime rate “can

be traced directly to the spread of the corrosive doctrine that every

citizen possesses an inherent right to decide for himself which laws

to obey and when to disobey them.”37 Some segregationists went fur-

ther, insisting that integration causes crime, citing lower crime rates

in Southern states as evidence that segregation was necessary. In the

words of Representative John Bell Williams, “This exodus of Negroes

from the South, and their influx into the great metropolitan centers of

other areas of the Nation, has been accompanied by a wave of crime. . . .

What has civil rights accomplished for these areas? . . . Segregation is

the only answer as most Americans—not the politicians—have real-

ized for hundreds of years.”38

Unfortunately, at the same time that civil rights were being identi-

fied as a threat to law and order, the FBI was reporting fairly dramatic

increases in the national crime rate. Beginning in the 1960s, crime

rates rose in the United States for a period of about ten years. Reported

street crime quadrupled, and homicide rates nearly doubled. Despite

significant controversy over the accuracy of crime statistics during

this period (the FBI’s method of tracking crime was changing), sociol-

ogists and criminologists agree that crime did rise, in some categories

5 2 T H E N E W J I M   C R O W

quite sharply. The reasons for the crime wave are complex but can be

explained in large part by the rise of the “baby boom” generation—the

spike in the number of young men in the fifteen-to-twenty-four age

group, which historically has been responsible for most crimes. The

surge of young men in the population was occurring at precisely the

same time that unemployment rates for black men were rising sharp-

ly, but the economic and demographic factors contributing to rising

crime were not explored in the media. Instead, crime reports were

sensationalized and offered as further evidence of the breakdown

in lawfulness, morality, and social stability in the wake of the Civil

Rights Movement.39

To make matters worse, riots erupted in the summer of 1964 in Har-

lem and Rochester, followed by a series of uprisings that swept the

nation following the assassination of Martin Luther King Jr. in 1968.

The racial imagery associated with the riots gave fuel to the argument

that civil rights for blacks led to rampant crime. Cities like Philadel-

phia and Rochester were described as being victims of their own gen-

erosity. Conservatives argued that, having welcomed blacks migrating

from the South, these cities “were repaid with crime-ridden slums and

black discontent.” 40

Barry Goldwater, in his 1964 presidential campaign, aggressively

exploited the riots and fears of black crime, laying the foundation for

the “get tough on crime” movement that would emerge years later. In

a widely quoted speech, Goldwater warned voters, “Choose the way

of [the Johnson] Administration and you have the way of mobs in

the street.” 41 Civil rights activists who argued that the uprisings were

directly related to widespread police harassment and abuse were dis-

missed by conservatives out of hand. “If [blacks] conduct themselves

in an orderly way, they will not have to worry about police brutality,”

argued West Virginia senator Robert Byrd.42

Growing numbers of black activists began organizing against police

violence during this period, and some organizations, including the

T H E R E B I R T H O F C A S T E 5 3

Black Panther Party (originally called the Black Panther Party for Self

Defense), boldly asserted the right of black people to arm themselves

in order to defend their communities against police brutality. Media

imagery of black men in leather jackets and berets, toting guns, proud-

ly embracing their revolutionary politics, and preaching “Black Power”

enhanced fears among many whites that violent insurrections were

inevitable if law enforcement failed to gain control over black com-

munities. The FBI, led by J. Edgar Hoover, responded by operating a

covert counterintelligence program, known as COINTELPRO, that tar-

geted civil rights leaders and activists, including Martin Luther King

Jr. and Malcolm X, who were deemed dangerous or suspected of Com-

munist Party affiliation. FBI agents also infiltrated black community

and activist organizations, sought to undermine political education

efforts, and illegally and legally surveilled, targeted, jailed, and killed

activists. According to historian Dan Berger, from 1969 through 1971,

at least forty Panthers were killed—some directly by police forces and

others as the result of internal conflicts “fanned to deadly flames” by

the police and FBI through undercover operations. Over one thousand

Panthers were jailed, many on false charges, as a result of informants,

perpetual surveillance, and other law enforcement tactics that would

later become defining features of the War on Drugs.43

While many civil rights advocates in this period actively resisted the

attempts by conservative politicians and law enforcement to use rising

crime rates, riots, and Black Power rhetoric as an excuse to crack down

on impoverished black communities, some black activists began to join

the calls for “law and order” and expressed support for harsh responses

to lawbreakers. As Vanessa Barker describes in The Politics of Imprison-

ment, black activists in Harlem, alarmed by rising crime rates, actively

campaigned for what would become the notorious Rockefeller drug laws

as well as other harsh sentencing measures.44 Wittingly or unwittingly,

they found themselves complicit in the emergence of a penal system

unprecedented in world history. Black support for harsh responses to

5 4 T H E N E W J I M   C R O W

urban crime—support born of desperation and legitimate concern over

the unraveling of basic security in inner-city communities—helped

provide political cover for conservative politicians who saw an opening

to turn back the clock on racial progress in the United States. Conser-

vatives could point to black support for highly punitive approaches to

dealing with the problems of the urban poor as “proof” that race had

nothing to do with their “law and order” agenda.

Early on, little effort was made to disguise the racial motivations

behind the law and order rhetoric and the harsh criminal justice legis-

lation proposed in Congress. The most ardent opponents of civil rights

legislation and desegregation were the most active on the emerging

crime issue. Well-known segregationist George Wallace, for example,

argued that “the same Supreme Court that ordered integration and

encouraged civil rights legislation” was now “bending over backwards

to help criminals.” 45 Three other prominent segregationists—Senators

McClellan, Ervin, and Thurmond—led the legislative battle to curb

the rights of criminal defendants.46

As the rules of acceptable discourse changed, however, segrega-

tionists distanced themselves from an explicitly racist agenda. They

developed instead the racially sanitized rhetoric of “cracking down on

crime”—rhetoric that is now used freely by politicians of every stripe.

Conservative politicians who embraced this rhetoric purposefully

failed to distinguish between the direct action tactics of civil rights

activists, violent rebellions in inner cities, and traditional crimes of an

economic or violent nature. Instead, as Marc Mauer of the Sentencing

Project has noted, “all of these phenomenon were subsumed under the

heading of ‘crime in the streets.’” 47

After the passage of the Civil Rights Act, the public debate shifted

focus from segregation to crime. The battle lines, however, remained

largely the same. Positions taken on crime policies typically cohered

along lines of racial ideology. Political scientist Vesla Weaver explains:

“Votes cast in opposition to open housing, busing, the Civil Rights

T H E R E B I R T H O F C A S T E 5 5

Act, and other measures time and again showed the same divisions as

votes for amendments to crime bills. . . . Members of Congress who

voted against civil rights measures proactively designed crime legisla-

tion and actively fought for their proposals.” 48

Although law and order rhetoric ultimately failed to prevent the for-

mal dismantling of the Jim Crow system, it proved highly effective in

appealing to poor and working-class whites, particularly in the South,

who were opposed to integration and frustrated by the Democratic Par-

ty’s apparent support for the Civil Rights Movement. As Weaver notes,

“rather than fading, the segregationists’ crime-race argument was

reframed, with a slightly different veneer,” and eventually became the

foundation of the conservative agenda on crime.49 In fact, law and order

rhetoric—first employed by segregationists—would eventually con-

tribute to a major realignment of political parties in the United States.

Following the Civil War, party alignment was almost entirely

regional. The South was solidly Democratic, embittered by the war,

firmly committed to the maintenance of a racial caste system, and

extremely hostile to federal intervention on behalf of African Ameri-

cans. The North was overwhelmingly Republican and, while Republi-

cans were ambivalent about equality for African Americans, they were

far more inclined to adopt and implement racial justice reforms than

their Democratic counterparts below the Mason-Dixon line.

The Great Depression effectuated a sea change in American race

relations and party alignment. The New Deal—spearheaded by the

Democratic Party of President Franklin D. Roosevelt—was designed

to alleviate the suffering of poor people in the midst of the Depression,

and blacks, the poorest of the poor, benefited disproportionately. While

New Deal programs were rife with discrimination in their administra-

tion, they at least included blacks within the pool of beneficiaries—a

development, historian Michael Klarman has noted, that was “suf-

ficient to raise black hopes and expectations after decades of malign

neglect from Washington.”50 Poor and working-class whites in both the

5 6 T H E N E W J I M   C R O W

North and South, no less than African Americans, responded positively

to the New Deal, anxious for meaningful economic relief. As a result,

the Democratic New Deal coalition evolved into an alliance of urban

ethnic groups and the white South that dominated electoral politics

from 1932 to the early 1960s.

That dominance came to an abrupt end with the creation and imple-

mentation of what has come to be known as the Southern Strategy.

The success of law and order rhetoric among working-class whites and

the intense resentment of racial reforms, particularly in the South,

led conservative Republican analysts to believe that a “new majority”

could be created by the Republican Party, one that included the tradi-

tional Republican base, the white South, and half the Catholic, blue-

collar vote of the big cities.51 Some conservative political strategists

admitted that appealing to racial fears and antagonisms was central to

this strategy, though it had to be done surreptitiously. H.R. Haldeman,

one of Nixon’s key advisers, recalls that Nixon himself deliberately

pursued a Southern, racial strategy: “He [President Nixon] empha-

sized 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.”52 Similarly, John Ehrlichman, special counsel to the

president, explained the Nixon administration’s campaign strategy of

1968 in this way: “We’ll go after the racists.”53 In Ehrlichman’s view,

“that subliminal appeal to the anti-black voter was always present in

Nixon’s statements and speeches.”54

Republican strategist Kevin Phillips is often credited for offer-

ing the most influential argument in favor of a race-based strategy

for Republican political dominance in the South. He argued in The

Emerging Republican Majority, published in 1969, that Nixon’s suc-

cessful presidential election campaign could point the way toward

long-term political realignment and the building of a new Republi-

can majority, if Republicans continued to campaign primarily on the

basis of racial issues, using coded antiblack rhetoric.55 He argued that

T H E R E B I R T H O F C A S T E 5 7

Southern white Democrats had become so angered and alienated by

the Democratic Party’s support for civil rights reforms, such as deseg-

regation and busing, that those voters could be easily persuaded to

switch parties if those racial resentments could be maintained. War-

ren Weaver, a New York Times journalist who reviewed the book upon

its release, observed that Phillips’s strategy largely depended upon

creating and maintaining a racially polarized political environment.

“Full racial polarization is an essential ingredient of Phillips’s political

pragmatism. He wants to see a black Democratic party, particularly in

the South, because this will drive into the Republican party precisely

the kind of anti- Negro whites who will help constitute the emerging

majority. This even leads him to support some civil rights efforts.”56

Appealing to the racism and vulnerability of working-class whites had

worked to defeat the Populists at the turn of the century, and a growing

number of conservatives believed the tactic should be employed again,

albeit in a more subtle fashion.

Thus in the late 1960s and early 1970s, two schools of thought were

offered to the general public regarding race, poverty, and the social

order. Conservatives argued that poverty was caused not by structural

factors related to race and class but rather by culture—particularly

black culture. This view received support from Daniel Patrick Moyni-

han’s now infamous report on the black family, which attributed black

poverty to a black “subculture” and the “tangle of pathology” that

characterized it. As described by sociologist Katherine Beckett, “The

(alleged) misbehaviors of the poor were transformed from adapta-

tions to poverty that had the unfortunate effect of reproducing it into

character failings that accounted for poverty in the first place.”57 The

“social pathologies” of the poor, particularly street crime, illegal drug

use, and delinquency, were redefined by conservatives as having their

cause in overly generous relief arrangements. Black “welfare cheats”

and their dangerous offspring emerged, for the first time, in the politi-

cal discourse and media imagery.

5 8 T H E N E W J I M   C R O W

Liberals, by contrast, insisted that social reforms such as the War

on Poverty and civil rights legislation would get at the “root causes” of

criminal behavior and stressed the social conditions that predictably

generate crime. Lyndon Johnson, for example, argued during his 1964

presidential campaign against Barry Goldwater that antipoverty pro-

grams were, in effect, anticrime programs: “There is something mighty

wrong when a candidate for the highest office bemoans violence in the

streets but votes against the War on Poverty, votes against the Civil

Rights Act and votes against major educational bills that come before

him as a legislator.”58

Competing images of the poor as “deserving” and “undeserving”

became central components of the debate. Ultimately, the racialized

nature of this imagery became a crucial resource for conservatives,

who succeeded in using law and order rhetoric in their effort to mobi-

lize the resentment of white working-class voters, many of whom felt

threatened by the sudden progress of African Americans. As explained

by Thomas and Mary Edsall in their insightful book Chain Reaction,

a disproportionate share of the costs of integration and racial equality

had been borne by lower- and lower-middle-class whites, who were

suddenly forced to compete on equal terms with blacks for jobs and

status and who lived in neighborhoods adjoining black ghettos. Their

children—not the children of wealthy whites—attended schools most

likely to fall under busing orders. The affluent white liberals who were

pressing the legal claims of blacks and other minorities “were often

sheltered, in their private lives, and largely immune to the costs of

implementing minority claims.”59 This reality made it possible for con-

servatives to characterize the “liberal Democratic establishment” as

being out of touch with ordinary working people—thus resolving one

of the central problems facing conservatives: how to persuade poor

and working-class voters to join in alliance with corporate interests

and the conservative elite. By 1968, 81 percent of those responding

to the Gallup Poll agreed with the statement that “law and order has

T H E R E B I R T H O F C A S T E 59

broken down in this country,” and the majority blamed “Negroes who

start riots” and “Communists.” 60

During the presidential election that year, both the Republican

candidate, Richard Nixon, and the independent segregationist candi-

date, George Wallace, made “law and order” a central theme of their

campaigns, and together they collected 57 percent of the vote.61 Nix-

on dedicated seventeen speeches solely to the topic of law and order,

and one of his television ads explicitly called on voters to reject the

lawlessness of civil rights activists and embrace “order” in the United

States.62 The advertisement began with frightening music accompa-

nied by flashing images of protestors, bloodied victims, and violence.

A deep voice then said:

It is time for an honest look at the problem of order in the

United States. Dissent is a necessary ingredient of change,

but in a system of government that provides for peaceful

change, there is no cause that justifies resort to violence.

Let us recognize that the first right of every American is to

be free from domestic violence. So I pledge to you, we shall

have order in the United States.

At the end of the ad, a caption declared: “This time . . . vote like your

whole world depended on it . . . NIXON.” Viewing his own campaign

ad, Nixon reportedly remarked with glee that the ad “hits it right on

the nose. It’s all about those damn Negro–Puerto Rican groups out

there.” 63

Race had become, yet again, a powerful wedge, breaking up what had

been a solid liberal coalition based on economic interests of the poor

and the working and lower-middle classes. In the 1968 election, race

eclipsed class as the organizing principle of American politics, and by

1972, attitudes on racial issues rather than socioeconomic status were

the primary determinant of voters’ political self-identification. The

6 0 T H E N E W J I M   C R O W

late 1960s and early 1970s marked the dramatic erosion in the belief

among working-class whites that the condition of the poor, or those

who fail to prosper, was the result of a faulty economic system that

needed to be challenged. As the Edsalls explain, “the pitting of whites

and blacks at the low end of the income distribution against each oth-

er intensified the view among many whites that the condition of life

for the disadvantaged—particularly for disadvantaged blacks—is the

responsibility of those afflicted, and not the responsibility of the larger

society.” 64 Just as race had been used at the turn of the century by

Southern elites to rupture class solidarity at the bottom of the income

ladder, race as a national issue had broken up the Democratic New

Deal “bottom-up” coalition—a coalition dependent on substantial sup-

port from all voters, white and black, at or below the median income.

The conservative revolution that took root within the Republican

Party in the 1960s did not reach its full development until the election

of President Ronald Reagan in 1980. The decade preceding Reagan’s

ascent to the presidency was characterized by political and social crises,

as the Civil Rights Movement was promptly followed by intense con-

troversy over the implementation of the equality principle—especially

busing and affirmative action—as well as dramatic political clashes

over the Vietnam War and Watergate. Throughout the 1970s, conserva-

tives generally gave lip service to the goal of racial equality but active-

ly resisted desegregation, busing, and civil rights enforcement. They

repeatedly raised the issue of welfare, subtly framing it as a contest

between hardworking, blue-collar whites and poor blacks who refused

to work. The not-so-subtle message to working-class whites was that

their tax dollars were going to support special programs for blacks who

most certainly did not deserve them. During this period, Nixon called

for a “war on drugs”—an announcement that proved largely rhetorical

as he declared illegal drugs “public enemy number one” without pro-

posing dramatic shifts in drug policy. A backlash against blacks was

clearly in force, but no consensus had yet been reached regarding what

T H E R E B I R T H O F C A S T E 6 1

racial and social order would ultimately emerge from these turbulent

times. That changed during the Reagan era.

In his campaign for the presidency, Reagan mastered the “excision

of the language of race from conservative public discourse” and thus

built on the success of earlier conservatives who developed a strategy

of exploiting racial hostility or resentment for political gain without

making explicit reference to race.65 Condemning “welfare queens”

and criminal “predators,” he rode into office with the strong sup-

port of disaffected whites—poor and working-class whites who felt

betrayed by the Democratic Party’s embrace of the civil rights agenda.

As one political insider explained, Reagan’s appeal derived primarily

from the ideological fervor of the right wing of the Republican Party

and “the emotional distress of those who fear or resent the Negro,

and who expect Reagan somehow to keep him ‘in his place’ or at

least echo their own anger and frustration.” 66 To great effect, Reagan

echoed white frustration in race-neutral terms through implicit racial

appeals. His “colorblind” rhetoric on crime, welfare, taxes, and states’

rights was clearly understood by white (and black) voters as having

a racial dimension, though claims to that effect were impossible to

prove. The absence of explicitly racist rhetoric afforded the racial

nature of his coded appeals a certain plausible deniability. For exam-

ple, when Reagan kicked off his presidential campaign at the annual

Neshoba County Fair near Philadelphia, Mississippi—the town where

three civil rights activists were murdered in 1964—he assured the

crowd “I believe in states’ rights,” and promised to restore to states

and local governments the power that properly belonged to them.67

His critics promptly alleged that he was signaling a racial message to

his audience, suggesting allegiance with those who resisted deseg-

regation, but Reagan firmly denied it, forcing liberals into a position

that would soon become familiar—arguing that something is racist

but finding it impossible to prove in the absence of explicitly racist

language.

6 2 T H E N E W J I M   C R O W

Crime and welfare were the major themes of Reagan’s campaign rhet-

oric. According to the Edsalls, one of Reagan’s favorite and most-often-

repeated anecdotes was the story of a Chicago “welfare queen” with

“80 names, 30 addresses, 12 Social Security cards,” whose “tax-free

income alone is over $150,000.” 68 The term welfare queen became a

not-so-subtle code for “lazy, greedy, black ghetto mother.” The food

stamp program, in turn, was a vehicle to let “some fellow ahead of

you buy a T-bone steak,” while “you were standing in a checkout line

with your package of hamburger.” 69 These highly racialized appeals,

targeted to poor and working-class whites, were nearly always accom-

panied by vehement promises to be tougher on crime and to enhance

the federal government’s role in combating it. Reagan portrayed the

criminal as “a staring face—a face that belongs to a frightening reality

of our time: the face of the human predator.”70 Reagan’s racially coded

rhetoric and strategy proved extraordinarily effective, as 22 percent of

all Democrats defected from the party to vote for Reagan. The defec-

tion rate shot up to 34 percent among those Democrats who believed

civil rights leaders were pushing “too fast.”71

Once elected, Reagan’s promise to enhance the federal govern-

ment’s role in fighting crime was complicated by the fact that fight-

ing street crime has traditionally been the responsibility of state and

local law enforcement. After a period of initial confusion and contro-

versy regarding whether the FBI and the federal government should be

involved in street crime, the Justice Department announced its inten-

tion to cut in half the number of specialists assigned to identify and

prosecute white-collar crime and to shift its attention to street crime,

especially drug-law enforcement.72 In October 1982, President Reagan

officially announced his administration’s War on Drugs. At the time

he declared this new war, less than 2 percent of the American public

viewed drugs as the most important issue facing the nation.73 This fact

was no deterrent to Reagan, for the drug war from the outset had little

to do with public concern about drugs and much to do with public

T H E R E B I R T H O F C A S T E 6 3

concern about race. By waging a war on drug users and dealers, Rea-

gan made good on his promise to crack down on the racially defined

“others”—the undeserving.

Practically overnight the budgets of federal law enforcement agen-

cies soared. Between 1980 and 1984, FBI antidrug funding increased

from $8 million to $95 million.74 Department of Defense antidrug allo-

cations increased from $33 million in 1981 to $1,042 million in 1991.

During that same period, DEA antidrug spending grew from $86 to

$1,026 million, and FBI antidrug allocations grew from $38 to $181

million.75 By contrast, funding for agencies responsible for drug treat-

ment, prevention, and education was dramatically reduced. The bud-

get of the National Institute on Drug Abuse, for example, was reduced

from $274 million to $57 million from 1981 to 1984, and antidrug

funds allocated to the Department of Education were cut from $14 mil-

lion to $3 million.76

Determined to ensure that the “new Republican majority” would

continue to support the extraordinary expansion of the federal

government’s law enforcement activities and that Congress would

continue to fund it, the Reagan administration launched a media

offensive to justify the War on Drugs.77 Central to the media cam-

paign was an effort to sensationalize the emergence of crack cocaine

in inner-city neighborhoods—communities devastated by deindus-

trialization and skyrocketing unemployment. The media frenzy the

campaign inspired simply could not have come at a worse time for

African Americans.

In the early 1980s, just as the drug war was kicking off, inner-city

communities were suffering from economic collapse. The blue-collar

factory jobs that had been plentiful in urban areas in the 1950s and

1960s had suddenly disappeared.78 Prior to 1970, inner-city workers

with relatively little formal education could find industrial employ-

ment close to home. Globalization, however, helped to change that.

Manufacturing jobs were transferred by multinational corporations

6 4 T H E N E W J I M   C R O W

away from American cities to countries that lacked unions, where

workers earn a small fraction of what is considered a fair wage in the

United States. To make matters worse, dramatic technological changes

revolutionized the workplace—changes that eliminated many of the

jobs that less skilled workers once relied upon for their survival. High-

ly educated workers benefited from the pace of technological change

and the increased use of computer-based technologies, but blue-collar

workers often found themselves displaced in the sudden transition

from an industrial to a service economy.

The impact of globalization and deindustrialization was felt most

strongly in black inner-city communities. As described by William

Julius Wilson in his book When Work Disappears, the overwhelming

majority of African Americans in the 1970s lacked college educations

and had attended racially segregated, underfunded schools lacking

basic resources. Those residing in ghetto communities were particu-

larly ill equipped to adapt to the seismic changes taking place in the

U.S. economy; they were left isolated and jobless. One study indicates

that as late as 1970, more than 70 percent of all blacks working in met-

ropolitan areas held blue-collar jobs.79 Yet by 1987, when the drug war

hit high gear, the industrial employment of black men had plummeted

to 28 percent.80

The new manufacturing jobs that opened during this time period

were generally located in the suburbs. The growing spatial mismatch

of jobs had a profound impact on African Americans trapped in ghet-

tos. A study of urban black fathers found that only 28 percent had

access to an automobile. The rate fell to 18 percent for those living in

ghetto areas.81

Women fared somewhat better during this period because the social-

service sector in urban areas—which employs primarily women—was

expanding at the same time manufacturing jobs were evaporating. The

fraction of black men who moved into so-called pink-collar jobs like

nursing or clerical work was negligible.82

T H E R E B I R T H O F C A S T E 6 5

The decline in legitimate employment opportunities among inner-

city residents created economic desperation, leading some to sell

drugs—most notably crack cocaine. Crack is pharmacologically

almost identical to powder cocaine, but it has been converted into

a form that can be vaporized and inhaled for a faster, more intense

(though shorter) high using less of the drug— making it possible to

sell small doses at more affordable prices. Crack hit the streets in

1985, a few years after Reagan’s drug war was announced, resulting

in a spike in violence as drug markets struggled to stabilize, and the

anger and frustration associated with joblessness boiled. Joblessness

and crack swept inner cities precisely at the moment that a fierce

backlash against the Civil Rights Movement was manifesting itself

through the War on Drugs.

No one should ever attempt to minimize the harm caused by

crack cocaine and the related violence. As David Kennedy correctly

observes, “[c] rack blew through America’s poor black neighborhoods

like the Four Horsemen of the Apocalypse,” leaving behind unspeak-

able devastation and suffering.83 As a nation, though, we had a choice

about how to respond. Some countries faced with rising drug crime

or seemingly intractable rates of drug abuse and drug addiction chose

the path of drug treatment, prevention, education, or economic invest-

ment. Portugal, for example, responded to persistent problems of drug

addiction and abuse by decriminalizing the possession of all drugs and

redirecting the money that would have been spent putting drug users

in cages into drug treatment and prevention. Ten years later, Portugal

reported that rates of drug abuse and addiction had plummeted, and

drug-related crime was on the decline as well.84 Numerous paths were

available to our nation in the wake of the crack crisis, yet for reasons

traceable largely to racial politics and fear mongering, we chose war.

Conservatives found they could finally justify an all-out war on an

“enemy” that had been racially defined years before.

Almost immediately after crack appeared, the Reagan administration

6 6 T H E N E W J I M   C R O W

leaped at the opportunity to publicize crack cocaine in an effort to build

support for its drug war. In October 1985, the DEA sent Robert Stutman

to serve as director of its New York City office and charged him with

the responsibility of shoring up public support for the administration’s

new war. Stutman developed a strategy for improving relations with the

news media and sought to draw journalists’ attention to the spread of

crack cocaine in inner-city communities. As Stutman recounted years

later:

The agents would hear me give hundreds of presentations

to the media as I attempted to call attention to the drug

scourge. I wasted no time in pointing out its [the DEA’s]

new accomplishments against the drug traffickers. . . . In

order to convince Washington, I needed to make it [drugs]

a national issue and quickly. I began a lobbying effort and I

used the media. The media were only too willing to coop-

erate, because as far the New York media was concerned,

crack was the hottest combat reporting story to come along

since the end of the Vietnam War.85

The strategy bore fruit. In June 1986, Newsweek declared crack to be

the biggest story since Vietnam/Watergate, and in August of that year,

Time magazine termed crack “the issue of the year.” Thousands of sto-

ries about the crack crisis flooded the airwaves and newsstands, and

the stories had a clear racial subtext. The articles typically featured

black “crack whores,” “crack babies,” and “gangbangers,” reinforcing

already prevalent racial stereotypes of black women as irresponsible,

selfish “welfare queens,” and black men as “predators”—part of an

inferior and criminal subculture.86 When two popular sports figures,

Len Bias and Don Rogers, died of cocaine overdoses in June 1986, the

media erroneously reported their deaths as caused by crack, contrib-

uting to the media firestorm and groundswell of political activity and

T H E R E B I R T H O F C A S T E 6 7

public concern relating to the new “demon drug,” crack cocaine. The

bonanza continued into 1989, as the media continued to disseminate

claims that crack was an “epidemic,” a “plague,” “instantly addictive,”

and extraordinarily dangerous— claims that have now been proven

false or highly misleading. Between October 1988 and October 1989,

The Washington Post alone ran 1,565 stories about the “drug scourge.”

Richard Harwood, the Post’s ombudsmen, eventually admitted the

paper had lost “a proper sense of perspective” due to such a “hyperbole

epidemic.” He said that “politicians are doing a number on people’s

heads.”87 Sociologists Craig Reinarman and Harry Levine later made a

similar point: “Crack was a godsend to the Right. . . . It could not have

appeared at a more politically opportune moment.”88

In September 1986, with the media frenzy at full throttle, the House

passed legislation that allocated $2 billion to the antidrug crusade,

required the participation of the military in narcotics control efforts,

allowed the death penalty for some drug-related crimes, and authorized

the admission of some illegally obtained evidence in drug trials. Later

that month, the Senate proposed even tougher antidrug legislation,

and shortly thereafter, the president signed the Anti-Drug Abuse Act

of 1986 into law. Among other harsh penalties, the legislation included

mandatory minimum sentences for the distribution of cocaine, includ-

ing far more severe punishment for distribution of crack—associated

with blacks—than powder cocaine—associated with whites.

Few criticisms of the legislation could be heard en route to enact-

ment. One senator insisted that crack had become a scapegoat dis-

tracting the public’s attention from the true causes of our social ills,

arguing: “If we blame crime on crack, our politicians are off the hook.

Forgotten are the failed schools, the malign welfare programs, the des-

olate neighborhoods, the wasted years. Only crack is to blame. One

is tempted to think that if crack did not exist, someone somewhere

would have received a Federal grant to develop it.”89 Critical voices,

however, were lonely ones.

6 8 T H E N E W J I M   C R O W

Congress revisited drug policy in 1988. The resulting legislation was

once again extraordinarily punitive, this time extending far beyond

traditional criminal punishments and including new “civil penalties”

for people convicted of drug crimes. The new Anti-Drug Abuse Act

authorized public housing authorities to evict any tenant who allows

any form of drug-related criminal activity to occur on or near pub-

lic housing premises and eliminated many federal benefits, including

student loans, for anyone convicted of a drug offense. The act also

expanded use of the death penalty for serious drug-related offenses

and imposed new mandatory minimums for drug offenses, including a

five-year mandatory minimum for simple possession of cocaine base—

with no evidence of intent to sell. Remarkably, the penalty would apply

to people with no prior criminal convictions. The severity of this pun-

ishment was unprecedented in the federal system. Until 1988, one year

of imprisonment had been the maximum for possession of any amount

of any drug. Members of the Congressional Black Caucus (CBC) were

mixed in their assessment of the new legislation—some believed the

harsh penalties were necessary, others convinced that the laws were

biased and harmful to African Americans. Ultimately the legislation

passed by an overwhelming margin—346 to 11. Six of the negative

votes came from the CBC.90

The War on Drugs proved popular among key white voters, par-

ticularly whites who remained resentful of black progress, civil

rights enforcement, and affirmative action. Beginning in the 1970s,

researchers found that racial attitudes—not crime rates or likelihood

of victimization—are an important determinant of white support for

“get tough on crime” and antiwelfare measures.91 Among whites, those

expressing the highest degree of concern about crime also tend to

oppose racial reform, and their punitive attitudes toward crime are

largely unrelated to their likelihood of victimization.92 Whites, on

average, are more punitive than blacks, despite the fact that blacks

are far more likely to be victims of crime. Rural whites are often the

T H E R E B I R T H O F C A S T E 6 9

most punitive, even though they are least likely to be crime victims.93

The War on Drugs, cloaked in race-neutral language, offered whites

opposed to racial reform a unique opportunity to express their hostil-

ity toward blacks and black progress, without being exposed to the

charge of racism.

Reagan’s successor, President George Bush Sr., did not hesitate to

employ implicit racial appeals, having learned from the success of

other conservative politicians that subtle negative references to race

could mobilize poor and working-class whites who once were loyal

to the Democratic Party. Bush’s most famous racial appeal, the Willie

Horton ad, featured a dark-skinned black man, a convicted murderer

who escaped while on a work furlough and then raped and murdered

a white woman in her home. The ad blamed Bush’s opponent, Massa-

chusetts governor Michael Dukakis, for the death of the white woman,

because he approved the furlough program. For months, the ad played

repeatedly on network news stations and was the subject of incessant

political commentary. Though controversial, the ad was stunningly

effective; it destroyed Dukakis’s chances of ever becoming president.

Once in the Oval Office, Bush stayed on message, opposing affirmative

action and aggressive civil rights enforcement, and embracing the drug

war with great enthusiasm. In August 1989, President Bush character-

ized drug use as “the most pressing problem facing the nation.”94 Short-

ly thereafter, a New York Times/CBS News Poll reported that 64 percent

of those polled—the highest percentage ever recorded—now thought

that drugs were the most significant problem in the United States.95

This surge of public concern did not correspond to a dramatic shift in

illegal drug activity, but instead was the product of a carefully orches-

trated political campaign. The level of public concern about crime and

drugs was only weakly correlated with actual crime rates, but highly

correlated with political initiatives, campaigns, and partisan appeals.96

The shift to a general attitude of “toughness” toward problems

associated with communities of color began in the 1960s, when the

7 0 T H E N E W J I M   C R O W

gains and goals of the Civil Rights Movement began to require real

sacrifices on the part of white Americans, and conservative politicians

found they could mobilize white racial resentment by vowing to crack

down on crime. By the late 1980s, however, not only conservatives

played leading roles in the get-tough movement, spouting the rheto-

ric once associated only with segregationists. Democratic politicians

and policymakers were now attempting to wrest control of the crime

and drug issues from Republicans by advocating stricter anticrime and

antidrug laws—all in an effort to win back the so-called “swing vot-

ers” who were defecting to the Republican Party. Somewhat ironically,

these “new Democrats” were joined by virulent racists, most notably

the Ku Klux Klan, which announced in 1990 that it intended to “join

the battle against illegal drugs” by becoming the “eyes and ears of the

police.”97 Progressives concerned about racial justice in this period

were mostly silent about the War on Drugs, preferring to channel their

energy toward defense of affirmative action and other perceived gains

of the Civil Rights Movement.

In the early 1990s, resistance to the emergence of a new system of

racialized social control collapsed across the political spectrum. A

century earlier, a similar political dynamic had resulted in the birth

of Jim Crow. In the 1890s, Populists buckled under the political pres-

sure created by the Redeemers, who had successfully appealed to poor

and working-class whites by proposing overtly racist and increas-

ingly absurd Jim Crow laws. Now, a new racial caste system—mass

incarceration—was taking hold, as politicians of every stripe compet-

ed with each other to win the votes of poor and working-class whites,

whose economic status was precarious, at best, and who felt threatened

by racial reforms. As had happened before, former allies of African

Americans—as much as conservatives—adopted a political strategy

that required them to prove how “tough” they could be on “them,” the

dark-skinned pariahs.

T H E R E B I R T H O F C A S T E 7 1

The results were immediate. As law enforcement budgets exploded,

so did prison and jail populations. In 1991, the Sentencing Project

reported that the number of people behind bars in the United States

was unprecedented in world history, and that one-fourth of young Afri-

can American men were now under the control of the criminal justice

system. Despite the jaw- dropping impact of the “get-tough” movement

on the African American community, neither the Democrats nor the

Republicans revealed any inclination to slow the pace of incarceration.

To the contrary, in 1992, presidential candidate Bill Clinton vowed

that he would never permit any Republican to be perceived as tougher

on crime than he. True to his word, just weeks before the critical New

Hampshire primary, Clinton chose to fly home to Arkansas to oversee

the execution of Ricky Ray Rector, a mentally impaired black man who

had so little conception of what was about to happen to him that he

asked for the dessert from his last meal to be saved for him until the

morning. After the execution, Clinton remarked, “I can be nicked a lot,

but no one can say I’m soft on crime.”98

Once elected, Clinton endorsed the idea of a federal “three strikes

and you’re out” law, which he advocated in his 1994 State of the Union

address to enthusiastic applause on both sides of the aisle. The $30 bil-

lion crime bill sent to President Clinton in August 1994 was hailed as

a victory for the Democrats, who “were able to wrest the crime issue

from the Republicans and make it their own.”99 The bill created dozens

of new federal capital crimes, mandated life sentences for some “three-

strikers,” and authorized more than $16 billion for state prison grants

and expansion of state and local police forces. Far from resisting the

emergence of the new caste system, Clinton escalated the drug war

beyond what conservatives had imagined possible a decade earlier. As

the Justice Policy Institute has observed, “the Clinton Administration’s

‘tough on crime’ policies resulted in the largest increases in federal and

state inmate populations of any president in American history.”100

7 2 T H E N E W J I M   C R O W

Clinton eventually moved beyond crime and capitulated to the

conservative racial agenda on welfare. This move, like his “get tough”

rhetoric and policies, was part of a grand strategy articulated by the

“new Democrats” to appeal to the elusive white swing voters. In so

doing, Clinton—more than any other president—created the current

racial undercaste. He signed the Personal Responsibility and Work

Opportunity Reconciliation Act, which “ended welfare as we know it,”

replacing Aid to Families with Dependent Children (AFDC) with a

block grant to states called Temporary Assistance to Needy Families

(TANF). TANF imposed a five-year lifetime limit on welfare assistance,

as well as a permanent, lifetime ban on eligibility for welfare and food

stamps for anyone convicted of a felony drug offense—including sim-

ple possession of marijuana.

Despite claims that these radical policy changes were driven by fis-

cal conservatism—i.e., the desire to end big government and slash

budget deficits—the reality is that government was not reducing the

amount of money devoted to the management of the urban poor. It

was radically altering what the funds would be used for. The dramatic

shift toward punitiveness resulted in a massive reallocation of public

resources. By 1996, the penal budget doubled the amount that had

been allocated to AFDC or food stamps.101 Similarly, funding that had

once been used for public housing was being redirected to prison con-

struction. During Clinton’s tenure, Washington slashed funding for

public housing by $17 billion (a reduction of 61 percent) and boosted

corrections by $19 billion (an increase of 171 percent), “effectively

making the construction of prisons the nation’s main housing program

for the urban poor.”102

Clinton did not stop there. Determined to prove how “tough” he

could be on “them,” Clinton also made it easier for federally assisted

public housing projects to exclude anyone with a criminal history—an

extraordinarily harsh step in the midst of a drug war aimed at racial

and ethnic minorities. In his announcement of the “One Strike and

T H E R E B I R T H O F C A S T E 7 3

You’re Out” Initiative, Clinton explained: “From now on, the rule for

residents who commit crime and peddle drugs should be one strike

and you’re out.”103 The new rule promised to be “the toughest admis-

sion and eviction policy that HUD has implemented.”104 Thus, for

countless poor people, particularly racial minorities targeted by the

drug war, public housing was no longer available, leaving many of

them homeless—locked out not only of mainstream society, but their

own homes.

The law and order perspective, first introduced during the peak of

the Civil Rights Movement by rabid segregationists, had become nearly

hegemonic two decades later. By the mid-1990s, no serious alternatives

to the War on Drugs and “get-tough” movement were being enter-

tained in mainstream political discourse. Once again, in response to

a major disruption in the prevailing racial order—this time the civil

rights gains of the 1960s—a new system of racialized social control

was created by exploiting the vulnerabilities and racial resentments

of poor and working-class whites. More than 2 million people found

themselves behind bars at the turn of the twenty-first century, and

millions more were relegated to the margins of mainstream society,

banished to a political and social space not unlike Jim Crow, where

discrimination in employment, housing, and access to education was

perfectly legal, and where they could be denied the right to vote. The

system functioned relatively automatically, and the prevailing system

of racial meanings, identities, and ideologies already seemed natural.

Ninety percent of those admitted to prison for drug offenses in many

states were black or Latino, yet the mass incarceration of communi-

ties of color was explained in race-neutral terms, an adaptation to the

needs and demands of the current political climate. The New Jim Crow

was born.

2
T he L o c k do w n

We may think we know how the criminal justice system works. Television is overloaded with fictional dramas about police,
crime, and prosecutors—shows such as Law & Order. These fictional

dramas, like the evening news, tend to focus on individual stories of

crime, victimization, and punishment, and the stories are typically told

from the point of view of law enforcement. A charismatic police officer,

investigator, or prosecutor struggles with his own demons while hero-

ically trying to solve a horrible crime. He ultimately achieves a person-

al and moral victory by finding the bad guy and throwing him in jail.

That is the made-for-TV version of the criminal justice system. It per-

petuates the myth that the primary function of the system is to keep

our streets safe and our homes secure by rooting out dangerous crimi-

nals and punishing them. These television shows, especially those that

romanticize drug-law enforcement, are the modern-day equivalent of

the old movies portraying happy slaves, the fictional gloss placed on a

brutal system of racialized oppression and control.

Those who have been swept within the criminal justice system

know that the way the system actually works bears little resemblance

to what happens on television or in movies. Full-blown trials of guilt

or innocence rarely occur; many people never even meet with an attor-

ney; witnesses are routinely paid and coerced by the government;

police regularly stop and search people for no reason whatsoever;

7 6 T H E N E W J I M   C R O W

penalties for many crimes are so severe that innocent people plead

guilty, accepting plea bargains to avoid harsh mandatory sentences;

and children, even as young as fourteen, are sent to adult prisons.

Rules of law and procedure, such as “guilt beyond a reasonable doubt”

or “probable cause” or “reasonable suspicion,” can easily be found in

court cases and law-school textbooks but are much harder to find in

real life.

In this chapter, we shall see how the system of mass incarceration

actually works. Our focus is the War on Drugs. The reason is simple:

nothing has contributed more to the systematic mass incarceration

of people of color in the United States than this ongoing war. Drug

offenses alone account for two-thirds of the rise in the federal prison

population and more than half the rise in the state prison population

between 1985 and 2000.1 Approximately a half-million people are

in prison or jail for a drug offense today, compared to an estimated

41,100 in 1980—an increase of 1,100 percent.2 Drug arrests have tri-

pled since 1980. As a result, more than 31 million people have been

arrested for drug offenses since the drug war began.3 To put the mat-

ter in perspective, consider this: there are more people in prisons and

jails today just for drug offenses than were incarcerated for all reasons

in 1980.4 The population under correctional control—on probation or

parole—has tripled as well, an increase driven almost entirely by drug

convictions and other nonviolent crimes.

Before we begin our tour of the drug war, it is worthwhile to get

a couple of myths out of the way. The first is that the war is aimed

at ridding the nation of drug “kingpins” or big-time dealers. Nothing

could be further from the truth. The vast majority of those arrested are

charged with relatively minor crimes. In 2005, for example, four out of

five drug arrests were for possession, and only one out of five was for

sales. Moreover, most people in state prison for drug offenses have no

history of violence or significant selling activity.5

The second myth is that the drug war is principally concerned

T H E L O C K D O W N 7 7

with dangerous drugs. Quite to the contrary, arrests for marijuana

possession—a drug less harmful than tobacco or alcohol— accounted

for nearly 80 percent of the growth in drug arrests in the 1990s.6

Despite the fact that most drug arrests are for nonviolent minor

offenses, the War on Drugs has ushered in an era of unprecedented

punitiveness.

The percentage of drug arrests that result in prison sentences (rath-

er than dismissal, community service, or probation) has quadrupled,

contributing to a prison-building boom the likes of which the world

has never seen. In two short decades, between 1980 and 2000, the

number of people incarcerated in our nation’s prisons and jails soared

from roughly 300,000 to more than 2 million. By the end of 2007, more

than 7 million Americans—or one in every 31 adults—were behind

bars, on probation, or on parole.7

We begin our exploration of the drug war at the point of entry—arrest

by the police—and then consider how the system of mass incarceration

is structured to reward mass drug arrests and facilitate the conviction

and imprisonment of an unprecedented number of Americans, whether

guilty or innocent. In subsequent chapters, we will consider how the

system specifically targets people of color and then relegates them to a

second-class status analogous to Jim Crow. At this point, we simply take

stock of the means by which the War on Drugs facilitates the roundup

and lockdown of an extraordinary percentage of the U.S. population.

Rules of the Game

Few legal rules meaningfully constrain the police in the War on Drugs.

This may sound like an overstatement, but upon examination it proves

accurate. The absence of significant constraints on the exercise of

police discretion is a key feature of the drug war’s design. It has made

the roundup of millions of Americans for nonviolent drug offenses

relatively easy.

7 8 T H E N E W J I M   C R O W

With only a few exceptions, the Supreme Court has seized every

opportunity to facilitate the drug war, primarily by eviscerating

Fourth Amendment protections against unreasonable searches and

seizures by the police. The rollback has been so pronounced that some

commentators charge that a virtual “drug exception” now exists to

the Bill of Rights. Shortly before his death, Justice Thurgood Marshall

felt compelled to remind his colleagues that there is, in fact, “no drug

exception” written into the text of the Constitution.8

Most Americans do not know what the Fourth Amendment of the

U.S. Constitution actually says or what it requires of the police. It

states, in its entirety:

The right of the people to be secure in their persons, hous-

es, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and

the person or things to be seized.

Courts and scholars agree that the Fourth Amendment governs

all searches and seizures by the police and that the amendment was

adopted in response to the English practice of conducting arbitrary

searches under general warrants to uncover seditious libels. The rou-

tine police harassment, arbitrary searches, and widespread police

intimidation of those subject to English rule helped to inspire the

American Revolution. Not surprisingly, then, preventing arbitrary

searches and seizures by the police was deemed by the Founding

Fathers an essential element of the U.S. Constitution. Until the War

on Drugs, courts had been fairly stringent about enforcing the Fourth

Amendment’s requirements.

Within a few years after the drug war was declared, however, many

legal scholars noted a sharp turn in the Supreme Court’s Fourth

Amendment jurisprudence. By the close of the Supreme Court’s

T H E L O C K D O W N 7 9

1990–91 term, it had become clear that a major shift in the relation-

ship between the citizens of this country and the police was under

way. Justice Stevens noted the trend in a powerful dissent issued in

California v. Acevedo, a case upholding the warrantless search of a bag

locked in a motorist’s trunk:

In the years [from 1982 to 1991] , the Court has heard argu-

ment in 30 Fourth Amendment cases involving narcot-

ics. In all but one, the government was the petitioner. All

save two involved a search or seizure without a warrant

or with a defective warrant. And, in all except three, the

Court upheld the constitutionality of the search or seizure.

In the meantime, the flow of narcotics cases through the

courts has steadily and dramatically increased. No impar-

tial observer could criticize this Court for hindering the

progress of the war on drugs. On the contrary, decisions

like the one the Court makes today will support the con-

clusion that this Court has become a loyal foot soldier in

the Executive’s fight against crime.9

Police searches of vehicles are but one example. Virtually all consti-

tutionally protected civil liberties have been undermined by the drug

war. The Court has been busy in recent years approving mandatory

drug testing of employees and students, upholding random searches

and sweeps of public schools and students, permitting police to obtain

search warrants based on an anonymous informant’s tip, expanding

the government’s wiretapping authority, legitimating the use of paid,

unidentified informants by police and prosecutors, approving the use

of helicopter surveillance of homes without a warrant, and allowing

the forfeiture of cash, homes, and other property based on unproven

allegations of illegal drug activity.

For our purposes here, we limit our focus to the legal rules crafted

by the Supreme Court that grant law enforcement a pecuniary interest

8 0 T H E N E W J I M   C R O W

in the drug war and make it relatively easy for the police to seize peo-

ple virtually anywhere—on public streets and sidewalks, on buses,

airplanes, and trains, or in any other public place—and usher them

behind bars. These new legal rules have ensured that anyone, virtually

anywhere, for any reason, can become a target of drug-law enforce-

ment activity.

Unreasonable Suspicion

Once upon a time, it was generally understood that the police could not

stop and search someone without a warrant unless there was probable

cause to believe that the individual was engaged in criminal activity.

That was a basic Fourth Amendment principle. In Terry v. Ohio, decid-

ed in 1968, the Supreme Court modified that understanding, but only

modestly, by ruling that if and when a police officer observes unusual

conduct by someone the officer reasonably believes to be dangerous

and engaged in criminal activity, the officer “is entitled for the protec-

tion of himself and others in the area” to conduct a limited search “to

discover weapons that might be used against the officer.”10 Known as

the stop-and-frisk rule, the Terry decision stands for the proposition

that, so long as a police officer has “reasonable articulable suspicion”

that someone is engaged in criminal activity and dangerous, it is con-

stitutionally permissible to stop, question, and frisk him or her—even

in the absence of probable cause.

Justice Douglas dissented in Terry on the grounds that “grant[ing]

police greater power than a magistrate [judge] is to take a long step

down the totalitarian path.”11 He objected to the notion that police

should be free to conduct warrantless searches whenever they sus-

pect someone of criminal activity, believing that dispensing with the

Fourth Amendment’s warrant requirement risked opening the door

to the same abuses that gave rise to the American Revolution. His

voice was a lonely one. Most commentators at the time agreed that

T H E L O C K D O W N 8 1

affording police the power and discretion to protect themselves dur-

ing an encounter with someone they believed to be dangerous is not

“unreasonable” under the Fourth Amendment.

History suggests Justice Douglas had the better of the argument. In

the years since Terry, stops, interrogations, and searches of ordinary

people driving down the street, walking home from the bus stop, or

riding the train have become commonplace—at least for people of col-

or. As Douglas suspected, the Court in Terry had begun its slide down

a very slippery slope. Today it is no longer necessary for the police to

have any reason to believe that people are engaged in criminal activ-

ity or actually dangerous to stop and search them. As long as you give

“consent,” the police can stop, interrogate, and search you for any rea-

son or no reason at all.

Just Say No

The first major sign that the Supreme Court would not allow the

Fourth Amendment to interfere with the prosecution of the War on

Drugs came in Florida v. Bostick. In that case, Terrance Bostick, a

twenty-eight-year-old African American, had been sleeping in the back

seat of a Greyhound bus on his way from Miami to Atlanta. Two police

officers, wearing bright green “raid” jackets and displaying their badg-

es and a gun, woke him with a start. The bus was stopped for a brief

layover in Fort Lauderdale, and the officers were “working the bus,”

looking for persons who might be carrying drugs. Bostick provided

them with his identification and ticket, as requested. The officers then

asked to search his bag. Bostick complied, even though he knew his bag

contained a pound of cocaine. The officers had no basis for suspecting

Bostick of any criminal activity, but they got lucky. They arrested Bos-

tick, and he was charged and convicted of trafficking cocaine.

Bostick’s search and seizure reflected what had become an increas-

ingly common tactic in the War on Drugs: suspicionless police sweeps

8 2 T H E N E W J I M   C R O W

of buses in interstate or intrastate travel. The resulting “interviews” of

passengers in these dragnet operations usually culminate in a request

for “consent” to search the passenger’s luggage.12 Never do the officers

inform passengers that they are free to remain silent or to refuse to

answer questions. By proceeding systematically in this manner, the

police are able to engage in an extremely high volume of searches. One

officer was able to search over three thousand bags in a nine-month

period employing these techniques.13 By and large, however, the hit

rates are low. For example, in one case, a sweep of one hundred buses

resulted in only seven arrests.14

On appeal, the Florida Supreme Court ruled in Bostick’s case that

the police officer’s conduct violated the Fourth Amendment’s prohi-

bition of unreasonable searches and seizures. The Fourth Amend-

ment, the court reasoned, forbids the police from seizing people and

searching them without some individualized suspicion that they have

committed or are committing a crime. The court thus overturned

Bostick’s conviction, ruling that the cocaine, having been obtained

illegally, was inadmissible. It also broadly condemned “bus sweeps”

in the drug war, comparing them to methods employed by totalitar-

ian regimes:

The evidence in this case has evoked images of other days,

under other flags, when no man traveled his nation’s roads

or railways without fear of unwarranted interruption, by

individuals who had temporary power in Government. . . .

This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it

white supremacist South Africa. Yet in Broward County,

Florida, these police officers approach every person on

board buses and trains (“that time permits”) and check

identification, tickets, ask to search luggage—all in the

name of “voluntary cooperation” with law enforcement.15

T H E L O C K D O W N 8 3

The U.S. Supreme Court reversed. The Court ruled that Bostick’s

encounter with the police was purely voluntary, and therefore he was

not “seized” within the meaning of the Fourth Amendment. Even if

Bostick did not feel free to leave when confronted by police at the back

of the bus, the proper question, according to the Court, was whether

“a reasonable person” in Bostick’s shoes would have felt free to ter-

minate the encounter. A reasonable person, the Court concluded,

would have felt free to sit there and refuse to answer the police offi-

cer’s questions, and would have felt free to tell the officer “No, you

can’t search my bag.” Accordingly, Bostick was not really “seized”

within the meaning of the Fourth Amendment, and the subsequent

search was purely consensual. The Court made clear that its deci-

sion was to govern all future drug sweeps, no matter what the cir-

cumstances of the targeted individual. Given the blanket nature of

the ruling, courts have found police encounters to be consensual in

truly preposterous situations. For example, a few years after Bostick,

the District of Columbia Court of Appeals applied the ruling to a

case involving a fourteen-year-old girl interrogated by the police,

concluding that she must be held to the same reasonable- person

standard.16

Prior to the Bostick decision, a number of lower courts had found

absurd the notion that “reasonable people” would feel empowered to

refuse to answer questions when confronted by the police. As federal

judge Prentiss Marshall explained, “The average person encountered

will feel obliged to stop and respond. Few will feel that they can walk

away or refuse to answer.”17 Professor Tracey Maclin put it this way:

“Common sense teaches that most of us do not have the chutzpah or

stupidity to tell a police officer to ‘get lost’ after he has stopped us and

asked us for identification or questioned us about possible criminal

conduct.”18 Other courts emphasized that granting police the free-

dom to stop, interrogate, and search anyone who consented would

8 4 T H E N E W J I M   C R O W

likely lead to racial and ethnic discrimination. Young black men

would be the likely targets, rather than older white women. Justice

Thurgood Marshall acknowledged as much in his dissent in Bostick,

noting “the basis of the decision to single out particular passengers

during a suspicionless sweep is less likely to be inarticulable than

unspeakable.”19

Studies have shown that Maclin’s common sense is correct: the over-

whelming majority of people who are confronted by police and asked

questions respond, and when asked to be searched, they comply.20 This

is the case even among those, like Bostick, who have every reason to

resist these tactics because they actually have something to hide. This

is no secret to the Supreme Court. The Court long ago acknowledged

that effective use of consent searches by the police depends on the

ignorance (and powerlessness) of those who are targeted. In Schneck-

loth v. Bustamonte, decided in 1973, the Court admitted that if waiver

of one’s right to refuse consent were truly “knowing, intelligent, and

voluntary,” it would “in practice create serious doubt whether consent

searches would continue to be conducted.”21 In other words, consent

searches are valuable tools for the police only because hardly anyone

dares to say no.

Poor Excuse

So-called consent searches have made it possible for the police to stop

and search just about anybody walking down the street for drugs. All

a police officer has to do in order to conduct a baseless drug investi-

gation is ask to speak with someone and then get their “consent” to

be searched. So long as orders are phrased as a question, compliance

is interpreted as consent. “May I speak to you?” thunders an officer.

“Will you put your arms up and stand against the wall for a search?”

Because almost no one refuses, drug sweeps on the sidewalk (and on

T H E L O C K D O W N 8 5

buses and trains) are easy. People are easily intimidated when the

police confront them, hands on their revolvers, and most have no idea

the question can be answered, “No.” But what about all the people

driving down the street? How do police extract consent from them?

The answer: pretext stops.

Like consent searches, pretext stops are favorite tools of law enforce-

ment in the War on Drugs. A classic pretext stop is a traffic stop moti-

vated not by any desire to enforce traffic laws, but instead motivated by

a desire to hunt for drugs in the absence of any evidence of illegal drug

activity. In other words, police officers use minor traffic violations as

an excuse—a pretext—to search for drugs, even though there is not a

shred of evidence suggesting the motorist is violating drug laws. Pre-

text stops, like consent searches, have received the Supreme Court’s

unequivocal blessing. Just ask Michael Whren and James Brown.

Whren and Brown, both of whom are African American, were

stopped by plainclothes officers in an unmarked vehicle in June 1993.

The police admitted to stopping Whren and Brown because they want-

ed to investigate them for imagined drug crimes, even though they did

not have probable cause or reasonable suspicion such crimes had actu-

ally been committed. Lacking actual evidence of criminal activity, the

officers decided to stop them based on a pretext—a traffic violation.

The officers testified that the driver failed to use his turn signal and

accelerated abruptly from a stop sign. Although the officers weren’t

really interested in the traffic violation, they stopped the pair any-

way because they had a “hunch” they might be in possession of illegal

drugs. According to the officers, they were right. The officers claimed

that the driver had a bag of cocaine sitting in his lap in plain view.

On appeal, Whren and Brown challenged their convictions on the

ground that pretextual stops violate the Fourth Amendment. They

argued that, because of the multitude of applicable traffic and equip-

ment regulations, and the difficulty of obeying all traffic rules perfectly

8 6 T H E N E W J I M   C R O W

at all times, the police will nearly always have an excuse to stop some-

one and go fishing for drugs. Anyone driving more than a few blocks is

likely to commit a traffic violation of some kind, such as failing to track

properly between lanes, failing to stop at precisely the correct distance

behind a crosswalk, failing to pause for precisely the right amount of

time at a stop sign, or failing to use a turn signal at the appropriate

distance from an intersection. Allowing the police to use minor traffic

violations as a pretext for baseless drug investigations would permit

them to single out anyone for a drug investigation without any evidence

of illegal drug activity whatsoever. That kind of arbitrary police con-

duct is precisely what the Fourth Amendment was intended to prohibit.

The Supreme Court rejected their argument, ruling that an offi-

cer’s motivations are irrelevant when evaluating the reasonableness

of police activity under the Fourth Amendment. It does not matter,

the Court declared, why the police are stopping motorists under the

Fourth Amendment, so long as some kind of traffic violation gives

them an excuse. The fact that the Fourth Amendment was specifi-

cally adopted by the Founding Fathers to prevent arbitrary stops and

searches was deemed unpersuasive. The Court ruled that the police

are free to use minor traffic violations as a pretext to conduct drug

investigations, even when there is no evidence of illegal drug activity.

A few months later, in Ohio v. Robinette, the Court took its twisted

logic one step further. In that case, a police officer pulled over Robert

Robinette, allegedly for speeding. After checking Robinette’s license

and issuing a warning (but no ticket), the officer then ordered Robi-

nette out of his vehicle, turned on a video camera in the officer’s car,

and then asked Robinette whether he was carrying any drugs and

would “consent” to a search. He did. The officer found a small amount

of marijuana in Robinette’s car, and a single pill, which turned out to

be methamphetamine.

The Ohio Supreme Court, reviewing the case on appeal, was obvi-

ously uncomfortable with the blatant fishing expedition for drugs. The

T H E L O C K D O W N 8 7

court noted that traffic stops were increasingly being used in the War

on Drugs to extract “consent” for searches, and that motorists may

not believe they are free to refuse consent and simply drive away. In

an effort to provide some minimal protection for motorists, the Ohio

court adopted a bright-line rule, that is, an unambiguous requirement

that officers tell motorists they are free to leave before asking for con-

sent to search their vehicles. At the very least, the justices reasoned,

motorists should know they have the right to refuse consent and to

leave, if they so choose.

The U.S. Supreme Court struck down this basic requirement as

“unrealistic.” In so doing, the Court made clear to all lower courts

that, from now on, the Fourth Amendment should place no meaning-

ful constraints on the police in the War on Drugs. No one needs to be

informed of their rights during a stop or search, and police may use

minor traffic stops as well as the myth of “consent” to stop and search

anyone they choose for imaginary drug crimes, whether or not any

evidence of illegal drug activity actually exists.

One might imagine that the legal rules described thus far would

provide more than enough latitude for the police to engage in an all-

out, no- holds-barred war on drugs. But there’s more. Even if motor-

ists, after being detained and interrogated, have the nerve to refuse

consent to a search, the police can arrest them anyway. In Atwater v.

City of Lago Vista, the Supreme Court held that the police may arrest

motorists for minor traffic violations and throw them in jail (even

if the statutory penalty for the traffic violation is a mere fine, not

jail time).

Another legal option for officers frustrated by a motorist’s refusal

to grant “consent” is to bring a drug- sniffing dog to the scene. This

option is available to police in traffic stops, as well as to law enforce-

ment officials confronted with resistant travelers in airports and in bus

or train stations who refuse to give the police consent to search their

luggage. The Supreme Court has ruled that walking a drug- sniffing

8 8 T H E N E W J I M   C R O W

dog around someone’s vehicle (or someone’s luggage) does not con-

stitute a “search,” and therefore does not trigger Fourth Amendment

scrutiny.22 If the dog alerts to drugs, then the officer has probable

cause to search without the person’s consent. Naturally, in most cases,

when someone is told that a drug-sniffing dog will be called, the seized

individual backs down and “consents” to the search, as it has become

apparent that the police are determined to conduct the search one way

or another.

Kissing Frogs

Court cases involving drug-law enforcement almost always involve

guilty people. Police usually release the innocent on the street—often

without a ticket, citation, or even an apology—so their stories are rarely

heard in court. Hardly anyone files a complaint, because the last thing

most people want to do after experiencing a frightening and intrusive

encounter with the police is show up at the police station where the

officer works and attract more attention to themselves. Many people,

especially poor people of color, fear and experience police harassment,

retaliation, and abuse. After having your car torn apart by the police

in a futile search for drugs, or being forced to lie spread-eagled on

the pavement while the police search you and interrogate you for no

reason at all, how much confidence do you have in law enforcement?

Do you expect to get a fair hearing? Those who try to find an attorney

to represent them in a lawsuit often learn that unless they have bro-

ken bones (and no criminal record), private attorneys are unlikely to

be interested in their case. Many people are shocked to discover that

what happened to them on the side of the road was not, in fact, against

the law.

The inevitable result is that the people who wind up in front of a judge

are usually guilty of some crime. The parade of guilty people through

America’s courtrooms gives the false impression to the public—as well

T H E L O C K D O W N 8 9

as to judges—that when the police have a “hunch,” it makes sense

to let them act on it. Judges tend to imagine the police have a sixth

sense—or some kind of special police training—that qualifies them

to identify people who are guilty of drug crimes without any evidence.

After all, they seem to be right so much of the time, don’t they?

The truth, however, is that most people stopped and searched in

the War on Drugs are perfectly innocent of any crime. The police have

received no training that enhances the likelihood they will spot the

guilty people as they drive by and leave everyone else alone. To the

contrary, tens of thousands of law enforcement officers have received

training that guarantees precisely the opposite. The Drug Enforcement

Agency (DEA) trains police to conduct utterly unreasonable and dis-

criminatory stops and searches throughout the United States.

Perhaps the best known of these training programs is Operation

Pipeline. The DEA launched Operation Pipeline in 1984 as part of the

Reagan administration’s rollout of the War on Drugs. The federal pro-

gram, administered by over three hundred state and local law enforce-

ment agencies, trains state and local law enforcement officers to use

pretextual traffic stops and consent searches on a large scale for drug

interdiction. Officers learn, among other things, how to use a minor

traffic violation as a pretext to stop someone, how to lengthen a rou-

tine traffic stop and leverage it into a search for drugs, how to obtain

consent from a reluctant motorist, and how to use drug- sniffing dogs

to obtain probable cause.23 By 2000, the DEA had directly trained

more than 25,000 officers in forty-eight states in Pipeline tactics and

helped to develop training programs for countless municipal and state

law enforcement agencies. In legal scholar Ricardo Bascuas’s words,

“Operation Pipeline is exactly what the Framers meant to prohibit: a

federally-run general search program that targets people without cause

for suspicion, particularly those who belong to disfavored groups.”24

The program’s success requires police to stop “staggering” num-

bers of people in shotgun fashion.25 This “volume” approach to drug

9 0 T H E N E W J I M   C R O W

enforcement sweeps up extraordinary numbers of innocent people. As

one California Highway Patrol Officer said, “It’s sheer numbers. . . .

You’ve got to kiss a lot of frogs before you find a prince.”26 Accord-

ingly, every year, tens of thousands of motorists find themselves

stopped on the side of the road, fielding questions about imaginary

drug activity, and then succumbing to a request for their vehicle to

be searched—sometimes torn apart—in the search for drugs. Most of

these stops and searches are futile. It has been estimated that 95 per-

cent of Pipeline stops yield no illegal drugs.27 One study found that up

to 99 percent of traffic stops made by federally funded narcotics task

forces result in no citation and that 98 percent of task-force searches

during traffic stops are discretionary searches in which the officer

searches the car with the driver’s verbal “consent” but has no other

legal authority to do so.28

The “drug-courier profiles” utilized by the DEA and other law

enforcement agencies for drug sweeps on highways, as well as in air-

ports and train stations, are notoriously unreliable. In theory, a drug-

courier profile reflects the collective wisdom and judgment of a law

enforcement agency’s officials. Instead of allowing each officer to rely

on his or her own limited experience and biases in detecting suspi-

cious behavior, a drug-courier profile affords every officer the advan-

tage of the agency’s collective experience and expertise. However, as

legal scholar David Cole has observed, “in practice, the drug-courier

profile is a scattershot hodgepodge of traits and characteristics so

expansive that it potentially justifies stopping anybody and every-

body.”29 The profile can include traveling with luggage, traveling with-

out luggage, driving an expensive car, driving a car that needs repairs,

driving with out-of-state license plates, driving a rental car, driving

with “mismatched occupants,” acting too calm, acting too nervous,

dressing casually, wearing expensive clothing or jewelry, being one of

the first to deplane, being one of the last to deplane, deplaning in the

middle, paying for a ticket in cash, using large-denomination curren-

T H E L O C K D O W N 9 1

cy, using small- denomination currency, traveling alone, traveling with

a companion, and so on. Even striving to obey the law fits the profile!

The Florida Highway Patrol Drug Courier Profile cautioned troopers

to be suspicious of “scrupulous obedience to traffic laws.”30 As Cole

points out, “such profiles do not so much focus an investigation as

provide law enforcement officials a ready-made excuse for stopping

whomever they please.”31

The Supreme Court has allowed use of drug-courier profiles as

guides for the exercise of police discretion. Although it has indicated

that the mere fact that someone fits a profile does not automatically

constitute reasonable suspicion justifying a stop, courts routinely defer

to these profiles, and the Court has yet to object. As one judge said after

conducting a review of drug-courier profile decisions: “Many courts

have accepted the profile, as well as the Drug Enforcement Agency’s

scattershot enforcement efforts, unquestioningly, mechanistically, and

dispositively.”32

It Pays to Play

Clearly, the rules of the drug war game are designed to allow for the

roundup of an unprecedented number of Americans. The number of

annual drug arrests more than tripled between 1980 and 2005, as

drug sweeps and suspicionless stops and searches proceeded in record

numbers.33

Still, it is fair to wonder why the police would choose to arrest such

an astonishing percentage of the American public for minor drug

crimes. The fact that police are legally allowed to engage in a wholesale

roundup of people suspected of minor drug crimes does not answer

the question why they would choose to do so, particularly when most

police departments have far more serious crimes to prevent and solve.

Why would police prioritize drug-law enforcement? Drug use and

abuse is nothing new; in fact, it was on the decline, not on the rise,

9 2 T H E N E W J I M   C R O W

when the War on Drugs began. So why make drug-law enforcement a

priority now?

Once again, the answer lies in the system’s design. Every system of

control depends for its survival on the tangible and intangible benefits

that are provided to those who are responsible for the system’s mainte-

nance and administration. This system is no exception.

At the time the drug war was declared, illegal drug use and abuse

was not a pressing concern in most communities. The announcement

of a War on Drugs was therefore met with some confusion and resis-

tance within law enforcement, as well as among some conservative

commentators.34 The federalization of drug crime violated the con-

servative tenet of states’ rights and local control, as street crime was

typically the responsibility of local law enforcement. Many state and

local law enforcement officials were less than pleased with the attempt

by the federal government to assert itself in local crime fighting, view-

ing the new drug war as an unwelcome distraction. Participation in

the drug war required a diversion of resources away from more serious

crimes, such as murder, rape, grand theft, and violent assault—all of

which were of far greater concern to most communities than illegal

drug use.

The resistance within law enforcement to the drug war created

something of a dilemma for the Reagan administration. In order for

the war to actually work—that is, in order for it to succeed in achiev-

ing its political goals—it was necessary to build a consensus among

state and local law enforcement agencies that the drug war should be a

top priority in their hometowns. The solution: cash. Huge cash grants

were made to those law enforcement agencies that were willing to

make drug-law enforcement a top priority. The new system of control

is traceable, to a significant degree, to a massive bribe offered to state

and local law enforcement by the federal government.

In 1988, at the behest of the Reagan administration, Congress

revised the program that provides federal aid to law enforcement,

T H E L O C K D O W N 9 3

renaming it the Edward Byrne Memorial State and Local Law Enforce-

ment Assistance Program after a New York City police officer who was

shot to death while guarding the home of a drug-case witness. The

Byrne program was designed to encourage every federal grant recipi-

ent to help fight the War on Drugs. Millions of dollars in federal aid

have been offered to state and local law enforcement agencies willing

to wage the war. This federal grant money has resulted in the prolif-

eration of narcotics task forces, including those responsible for high-

way drug interdiction. Nationally, narcotics task forces make up about

40 percent of all Byrne grant funding, but in some states as much as

90 percent of all Byrne grant funds go toward specialized narcotics

task forces.35 In fact, it is questionable whether any specialized drug

enforcement activity would exist in some states without the Byrne

program.

Other forms of valuable aid have been offered as well. The DEA

has offered free training, intelligence, and technical support to state

highway patrol agencies that are willing to commit their officers to

highway drug interdiction. The Pentagon, for its part, has given away

military intelligence and millions of dollars in firepower to state and

local agencies willing to make the rhetorical war a literal one.

Almost immediately after the federal dollars began to flow, law

enforcement agencies across the country began to compete for fund-

ing, equipment, and training. By the late 1990s, the overwhelming

majority of state and local police forces in the country had availed

themselves of the newly available resources and added a significant

military component to buttress their drug-war operations. According

to the Cato Institute, in 1997 alone, the Pentagon handed over more

than 1.2 million pieces of military equipment to local police depart-

ments.36 Similarly, the National Journal reported that between Janu-

ary 1997 and October 1999, the agency handled 3.4 million orders

of Pentagon equipment from over eleven thousand domestic police

agencies in all fifty states. Included in the bounty were “253 aircraft

9 4 T H E N E W J I M   C R O W

(including six- and seven-passenger airplanes, UH-60 Blackhawk and

UH-1 Huey helicopters), 7,856 M-16 rifles, 181 grenade launchers,

8,131 bulletproof helmets, and 1,161 pairs of night-vision goggles.”37

A retired police chief in New Haven, Connecticut, told The New York

Times, “I was offered tanks, bazookas, anything I wanted.”38

Waging War

In barely a decade, the War on Drugs went from being a political slo-

gan to an actual war. Now that police departments were suddenly flush

with cash and military equipment earmarked for the drug war, they

needed to make use of their new resources. As described in a Cato

Institute report, paramilitary units (most commonly called Special

Weapons and Tactics, or SWAT, teams) were quickly formed in virtu-

ally every major city to fight the drug war.39

SWAT teams originated in the 1960s and gradually became more

common in the 1970s, but until the drug war, they were used rarely,

primarily for extraordinary emergency situations such as hostage tak-

ings, hijackings, or prison escapes. That changed in the 1980s, when

local law enforcement agencies suddenly had access to cash and mili-

tary equipment specifically for the purpose of conducting drug raids.

Today, the most common use of SWAT teams is to serve narcot-

ics warrants, usually with forced, unannounced entry into the home.

In fact, in some jurisdictions drug warrants are served only by SWAT

teams—regardless of the nature of the alleged drug crime. As the

Miami Herald reported in 2002, “Police say they want [SWAT teams] in

case of a hostage situation or a Columbine-type incident, but in prac-

tice the teams are used mainly to serve search warrants on suspected

drug dealers. Some of these searches yield as little as a few grams of

cocaine or marijuana.” 40

The rate of increase in the use of SWAT teams has been astonishing.

In 1972, there were just a few hundred paramilitary drug raids per

T H E L O C K D O W N 9 5

year in the United States. By the early 1980s, there were three thou-

sand annual SWAT deployments, by 1996 there were thirty thousand,

and by 2001 there were forty thousand.41 The escalation of military

force was quite dramatic in cities throughout the United States. In

the city of Minneapolis, Minnesota, for example, its SWAT team was

deployed on no-knock warrants thirty-five times in 1986, but in 1996

that same team was deployed for drug raids more than seven hundred

times.42

Drug raids conducted by SWAT teams are not polite encounters. In

countless situations in which police could easily have arrested some-

one or conducted a search without a military-style raid, police blast

into people’s homes, typically in the middle of the night, throwing

grenades, shouting, and pointing guns and rifles at anyone inside,

often including young children. In recent years, dozens of people have

been killed by police in the course of these raids, including elderly

grandparents and those who are completely innocent of any crime.

Criminologist Peter Kraska reports that between 1989 and 2001 at

least 780 cases of flawed paramilitary raids reached the appellate level,

a dramatic increase over the 1980s, when such cases were rare, or ear-

lier, when they were nonexistent.43 Many of these cases involve people

killed in botched raids.

Alberta Spruill, a fifty-seven-year-old city worker from Harlem, is

among the fallen. On May 16, 2003, a dozen New York City police

officers stormed her apartment building on a no-knock warrant, act-

ing on a tip from a confidential informant who told them a “convicted

felon” was selling drugs on the sixth floor. The informant had actually

been in jail at the time he said he’d bought drugs in the apartment, and

the target of the raid had been arrested four days before, but the officers

didn’t check and didn’t even interview the building superintendent.

The only resident in the building was Alberta, described by friends as

a “devout churchgoer.” Before entering, police deployed a flash-bang

grenade, resulting in a blinding, deafening explosion. Alberta went

9 6 T H E N E W J I M   C R O W

into cardiac arrest and died two hours later. The death was ruled a

homicide but no one was indicted.

Those who survive SWAT raids are generally traumatized by the

event. Not long after Spruill’s death, Manhattan Borough President

C. Virginia Fields held hearings on SWAT practices in New York

City. According to the Village Voice, “Dozens of black and Latino

victims—nurses, secretaries, and former officers—packed her cham-

bers airing tales, one more horrifying than the next. Most were unable

to hold back tears as they described police ransacking their homes,

handcuffing children and grandparents, putting guns to their heads,

and being verbally (and often physically) abusive. In many cases, vic-

tims had received no follow-up from the NYPD, even to fix busted

doors or other physical damage.” 44

Even in small towns, such as those in Dodge County, Wisconsin,

SWAT teams treat routine searches for narcotics as a major battlefront

in the drug war. In Dodge County, police raided the mobile home of

Scott Bryant in April 1995, after finding traces of marijuana in his

garbage. Moments after busting into the mobile home, police shot

Bryant—who was unarmed—killing him. Bryant’s eight-year-old son

was asleep in the next room and watched his father die while waiting

for an ambulance. The district attorney theorized that the shooter’s

hand had clenched in “sympathetic physical reaction” as his other hand

reached for handcuffs. A spokesman for the Beretta company called

this unlikely because the gun’s double-action trigger was designed to

prevent unintentional firing. The Dodge County sheriff compared the

shooting to a hunting accident.45

SWAT raids have not been limited to homes, apartment buildings,

or public housing projects. Public high schools have been invaded

by SWAT teams in search of drugs. In November 2003, for example,

police raided Stratford High School in Goose Creek, South Carolina.

The raid was recorded by the school’s surveillance cameras as well as

a police camera. The tapes show students as young as fourteen forced

T H E L O C K D O W N 9 7

to the ground in handcuffs as officers in SWAT team uniforms and

bulletproof vests aim guns at their heads and lead a drug- sniffing dog

to tear through their book bags. The raid was initiated by the school’s

principal, who was suspicious that a single student might be dealing

marijuana. No drugs or weapons were found during the raid and no

charges were filed. Nearly all of the students searched and seized were

students of color.

The transformation from “community policing” to “military polic-

ing,” began in 1981, when President Reagan persuaded Congress to

pass the Military Cooperation with Law Enforcement Act, which

encouraged the military to give local, state, and federal police access

to military bases, intelligence, research, weaponry, and other equip-

ment for drug interdiction. That legislation carved a huge exception

to the Posse Comitatus Act, the Civil War–era law prohibiting the

use of the military for civilian policing. It was followed by Reagan’s

National Security Decision Directive, which declared drugs a threat to

U.S. national security, and provided for yet more cooperation between

local, state, and federal law enforcement. In the years that followed,

Presidents George Bush and Bill Clinton enthusiastically embraced

the drug war and increased the transfer of military equipment, tech-

nology, and training to local law enforcement, contingent, of course,

on the willingness of agencies to prioritize drug-law enforcement and

concentrate resources on arrests for illegal drugs.

The incentives program worked. Drug arrests skyrocketed as

SWAT teams swept through urban housing projects, highway patrol

agencies organized drug interdiction units on the freeways, and

stop-and- frisk programs were set loose on the streets. Generally,

the financial incentives offered to local law enforcement to pump up

their drug arrests have not been well publicized, leading the average

person to conclude reasonably (but mistakenly) that when their local

police departments report that drug arrests have doubled or tripled

in a short period of time, the arrests reflect a surge in illegal drug

9 8 T H E N E W J I M   C R O W

activity, rather than an infusion of money and an intensified enforce-

ment effort.

One exception is a 2001 report by the Capital Times in Madison,

Wisconsin. The Times reported that as of 2001, sixty-five of the state’s

eighty-three local SWAT teams had come into being since 1980, and

that the explosion of SWAT teams was traceable to the Pentagon’s

weaponry giveaway program, as well as to federal programs that pro-

vide money to local police departments for drug control. The paper

explained that, in the 1990s, Wisconsin police departments were

given nearly a hundred thousand pieces of military equipment. And

although the paramilitary units were often justified to city councils

and skeptical citizens as essential to fight terrorism or deal with hos-

tage situations, they were rarely deployed for those reasons but instead

were sent to serve routine search warrants for drugs and make drug

arrests. In fact, the Times reported that police departments had an

extraordinary incentive to use their new equipment for drug enforce-

ment: the extra federal funding the local police departments received

was tied to antidrug policing. The size of the disbursements was linked

to the number of city or county drug arrests. Each arrest, in theory,

would net a given city or county about $153 in state and federal fund-

ing. Non-drug-related policing brought no federal dollars, even for vio-

lent crime. As a result, when Jackson County, Wisconsin, quadrupled

its drug arrests between 1999 and 2000, the county’s federal subsidy

quadrupled too.46

Finders Keepers

As if the free military equipment, training, and cash grants were not

enough, the Reagan administration provided law enforcement with yet

another financial incentive to devote extraordinary resources to drug

law enforcement, rather than more serious crimes: state and local law

enforcement agencies were granted the authority to keep, for their own

T H E L O C K D O W N 9 9

use, the vast majority of cash and assets they seized when waging the

drug war. This dramatic change in policy gave state and local police an

enormous stake in the War on Drugs—not in its success, but in its per-

petual existence. Law enforcement gained a pecuniary interest not only

in the forfeited property, but in the profitability of the drug market itself.

Modern drug forfeiture laws date back to 1970, when Congress

passed the Comprehensive Drug Abuse Prevention and Control Act.

The act included a civil forfeiture provision authorizing the govern-

ment to seize and forfeit drugs, drug manufacturing and storage equip-

ment, and conveyances used to transport drugs. As legal scholars Eric

Blumenson and Eva Nilsen have explained, the provision was justified

as an effort “to forestall the spread of drugs in a way criminal penalties

could not—by striking at its economic roots.” 47 When a drug dealer is

sent to jail, there are many others ready and willing to take his place,

but seizing the means of production, some legislators reasoned, may

shut down the trafficking business for good. Over the years, the list

of properties subject to forfeiture expanded greatly, and the required

connection to illegal drug activity became increasingly remote, leading

to many instances of abuse. But it was not until 1984, when Congress

amended the federal law to allow federal law enforcement agencies to

retain and use any and all proceeds from asset forfeitures, and to allow

state and local police agencies to retain up to 80 percent of the assets’

value, that a true revolution occurred.

Suddenly, police departments were capable of increasing the size of

their budgets, quite substantially, simply by taking the cash, cars, and

homes of people suspected of drug use or sales. At the time the new

rules were adopted, the law governing civil forfeiture was so heavily

weighted in favor of the government that fully 80 percent of forfeitures

went uncontested. Property or cash could be seized based on mere

suspicion of illegal drug activity, and the seizure could occur without

notice or hearing, upon an ex parte showing of mere probable cause to

believe that the property had somehow been “involved” in a crime. The

10 0 T H E N E W J I M   C R O W

probable cause showing could be based on nothing more than hearsay,

innuendo, or even the paid, self-serving testimony of someone with

interests clearly adverse to the property owner. Neither the owner of

the property nor anyone else need be charged with a crime, much less

found guilty of one. Indeed, a person could be found innocent of any

criminal conduct and the property could still be subject to forfeiture.

Once the property was seized, the owner had no right of counsel, and

the burden was placed on him to prove the property’s “innocence.”

Because those who were targeted were typically poor or of moder-

ate means, they often lacked the resources to hire an attorney or pay

the considerable court costs. As a result, most people who had their

cash or property seized did not challenge the government’s action,

especially because the government could retaliate by filing criminal

charges—baseless or not.

Not surprisingly, this drug forfeiture regime proved highly lucra-

tive for law enforcement, offering more than enough incentive to wage

the War on Drugs. According to a report commissioned by the Depart-

ment of Justice, between 1988 and 1992 alone, Byrne-funded drug

task forces seized over $1 billion in assets.48 Remarkably, this figure

does not include drug task forces funded by the DEA or other federal

agencies.

The actual operation of drug forfeiture laws seriously undermines

the usual rhetoric offered in support of the War on Drugs, namely that

it is the big “kingpins” that are the target of the war. Drug forfeiture

laws are frequently used to allow those with assets to buy their free-

dom, while drug users and small-time dealers with few assets to trade

are subjected to lengthy prison terms. In Massachusetts, for example,

an investigation by journalists found that on average a “payment of

$50,000 in drug profits won a 6.3 year reduction in a sentence for

dealers,” while agreements of $10,000 or more bought elimination

or reduction of trafficking charges in almost three-fourths of such

cases.49 Federal drug forfeiture laws are one reason, Blumenson and

T H E L O C K D O W N 10 1

Nilsen note, “why state and federal prisons now confine large numbers

of men and women who had relatively minor roles in drug distribution

networks, but few of their bosses.”50

The Shakedown

Quite predictably, the enormous economic rewards created by both

the drug forfeiture and Byrne grant laws have created an environment

in which a very fine line exists between the lawful and the unlaw-

ful taking of other people’s money and property—a line so thin that

some officers disregard the formalities of search warrants, probable

cause, and reasonable suspicion altogether. In United States v. Reese,

for example, the Ninth Circuit Court of Appeals described a drug task

force completely corrupted by its dependence on federal drug money.

Operating as a separate unit within the Oakland Housing Authority,

the task force behaved, in the words of one officer, “more or less like

a wolfpack,” driving up in police vehicles and taking “anything and

everything we saw on the street corner.”51 The officers were under tre-

mendous pressure from their commander to keep their arrest numbers

up, and all of the officers were aware that their jobs depended on the

renewal of a federal grant. The task force commander emphasized that

they would need statistics to show that the grant money was well spent

and sent the task force out to begin a shift with comments like, “Let’s

go out and kick ass,” and “Everybody goes to jail tonight for every-

thing, right?”52

Journalists and investigators have documented numerous other

instances in which police departments have engaged in illegal shake-

downs, searches, and threats in search of forfeitable property and

cash. In Florida, reporters reviewed nearly one thousand videotapes of

highway traffic stops and found that police had used traffic violations

as an excuse—or pretext—to confiscate “tens of thousands of dollars

from motorists against whom there [was] no evidence of wrongdoing,”

10 2 T H E N E W J I M   C R O W

frequently taking the money without filing any criminal charges.53

Similarly, in Louisiana, journalists reported that Louisiana police

engaged in massive pretextual stops in an effort to seize cash, with the

money diverted to police department ski trips and other unauthorized

uses.54 And in Southern California, a Los Angeles Sheriff’s Department

employee reported that deputies routinely planted drugs and falsified

police reports to establish probable cause for cash seizures.55

Lots of small seizures can be nearly as profitable, and require the

expenditure of fewer investigative resources, than a few large busts.

The Western Area Narcotics Task Force (WANT) became the focus of a

major investigation in 1996 when almost $66,000 was discovered hid-

den in its headquarters. The investigation revealed that the task force

seized large amounts of money, but also small amounts, and then dis-

pensed it freely, unconstrained by reporting requirements or the task

force’s mission. Some seizures were as small as eight cents. Another

seizure of ninety-three cents prompted the local newspaper to observe

that “once again the officers were taking whatever the suspects were

carrying, even though by no stretch could pocket change be construed

to be drug money.”56

In 2000, Congress passed the Civil Asset Forfeiture Reform Act,

which was meant to address many of the egregious examples of abuse

of civil forfeiture. Some of the most widely cited examples involved

wealthy whites whose property was seized. One highly publicized case

involved a reclusive millionaire, Donald Scott, who was shot and killed

when a multiagency task force raided his two-hundred-acre Malibu

ranch purportedly in search of marijuana plants. They never found

a single marijuana plant in the course of the search. A subsequent

investigation revealed that the primary motivation for the raid was

the possibility of forfeiting Scott’s property. If the forfeiture had been

successful, it would have netted the law enforcement agencies about

$5 million in assets.57 In another case, William Munnerlynn had his

Learjet seized by the DEA after he inadvertently used it to transport

T H E L O C K D O W N 10 3

a drug dealer. Though charges were dropped against him within sev-

enty-two hours, the DEA refused to return his Learjet. Only after five

years of litigation and tens of thousands of dollars in legal fees was he

able to secure return of his jet. When the jet was returned, it had sus-

tained $100,000 worth of damage.58 Such cases were atypical but got

the attention of Congress.

The Reform Act resulted in a number of significant due-process chang-

es, such as shifting the burden of proof onto the government, eliminat-

ing the requirement that an owner post a cost bond, and providing some

minimal hardship protections for innocent parties who stand to lose

their homes. These reforms, however, do not go nearly far enough.

Arguably the most significant reform is the creation of an “innocent

owner” defense. Prior to the Reform Act, the Supreme Court had ruled

that the guilt or innocence of the property’s owner was irrelevant to

the property’s guilt—a ruling based on the archaic legal fiction that a

piece of property could be “guilty” of a crime. The act remedied this

insanity to some extent; it provides an “innocent owner” defense to

those whose property has been seized. However, the defense is serious-

ly undermined by the fact that the government’s burden of proof is so

low—the government need only establish by a “preponderance of the

evidence” that the property was involved in the commission of a drug

crime. This standard of proof is significantly lower than the “clear and

convincing evidence” standard contained in an earlier version of the

legislation, and it is far lower than the “proof beyond a reasonable

doubt” standard for criminal convictions.

Once the government meets this minimal burden, the burden then

shifts to the owner to prove that she “did not know of the conduct

giving rise to the forfeiture” or that she did “all that reasonably could

be expected under the circumstances to terminate such use of the

property.” This means, for example, that a woman who knew that

her husband occasionally smoked pot could have her car forfeited to

the government because she allowed him to use her car. Because the

10 4 T H E N E W J I M   C R O W

“car” was guilty of transporting someone who had broken a drug law

at some time, she could legally lose her only form of transportation,

even though she herself committed no crime. Indeed, women who are

involved in some relationship with men accused of drug crimes, typi-

cally husbands or boyfriends, are among the most frequent claimants

in forfeiture proceedings.59 Courts have not been forgiving of women

in these circumstances, frequently concluding that “the nature and

circumstances of the marital relationship may give rise to an inference

of knowledge by the spouse claiming innocent ownership.” 60

There are other problems with this framework, not the least of which

being that the owner of the property is not entitled to the appoint-

ment of counsel in the forfeiture proceeding, unless he or she has been

charged with a crime. The overwhelming majority of forfeiture cases

do not involve any criminal charges, so the vast majority of people who

have their cash, cars, or homes seized must represent themselves in

court, against the federal government. Oddly, someone who has actu-

ally been charged with a crime is entitled to the appointment of coun-

sel in civil forfeiture proceedings, but those whose property has been

forfeited but whose conduct did not merit criminal charges are on their

own. This helps to explain why up to 90 percent of forfeiture cases

in some jurisdictions are not challenged. Most people simply cannot

afford the considerable cost of hiring an attorney. Even if the cost is

not an issue, the incentives are all wrong. If the police seized your car

worth $5,000, or took $500 cash from your home, would you be will-

ing to pay an attorney more than your assets are worth to get them

back? If you haven’t been charged with a crime, are you willing to risk

the possibility that fighting the forfeiture might prompt the govern-

ment to file criminal charges against you?

The greatest failure of the Reform Act, however, has nothing to

do with one’s due process rights once property has been seized in a

drug investigation. Despite all of the new procedural rules and formal

protections, the law does not address the single most serious prob-

T H E L O C K D O W N 10 5

lem associated with drug forfeiture laws: the profit motive in drug-law

enforcement. Under the new law, drug busts motivated by the desire

to seize cash, cars, homes, and other property are still perfectly legal.

Law enforcement agencies are still allowed, through revenue- sharing

agreements with the federal government, to keep seized assets for their

own use. Clearly, so long as law enforcement is free to seize assets

allegedly associated with illegal drug activity— without ever charging

anyone with a crime— local police departments, as well as state and

federal law enforcement agencies, will continue to have a direct pecu-

niary interest in the profitability and longevity of the drug war. The

basic structure of the system remains intact.

None of this is to suggest that the financial rewards offered for police

participation in the drug war are the only reason that law enforce-

ment decided to embrace the war with zeal. Undoubtedly, the polit-

ical and cultural context of the drug war— particularly in the early

years— encouraged the roundup. When politicians declare a drug war,

the police (our domestic warriors) undoubtedly feel some pressure to

wage it. But it is doubtful that the drug war would have been launched

with such intensity on the ground but for the bribes offered for law

enforcement’s cooperation.

Today the bribes may no longer be necessary. Now that the SWAT

teams, the multiagency drug task forces, and the drug enforcement

agenda have become a regular part of federal, state, and local law

enforcement, it appears the drug war is here to stay. Funding for

the Byrne- sponsored drug task forces had begun to dwindle during

President Bush’s tenure, but Barack Obama, as a presidential candi-

date, promised to revive the Byrne grant program, claiming that it is

“critical to creating the anti-drug task forces our communities need.” 61

Obama honored his word following the election, drastically increasing

funding for the Byrne grant program despite its abysmal track record.

The Economic Recovery Act of 2009 included more than $2 billion in

new Byrne funding and an additional $600 million to increase state

10 6 T H E N E W J I M   C R O W

and local law enforcement across the country.62 Relatively little orga-

nized opposition to the drug war currently exists, and any dramatic

effort to scale back the war may be publicly condemned as “soft” on

crime. The war has become institutionalized. It is no longer a special

program or politicized project; it is simply the way things are done.

Legal Misrepresentation

So far, we have seen that the legal rules governing the drug war ensure

that extraordinary numbers of people will be swept into the criminal

justice system—arrested on drug charges, often for very minor offens-

es. But what happens after arrest? How does the design of the system

help to ensure the creation of a massive undercaste?

Once arrested, one’s chances of ever being truly free of the system

of control are slim, often to the vanishing point. Defendants are typi-

cally denied meaningful legal representation, pressured by the threat

of a lengthy sentence into a plea bargain, and then placed under for-

mal control—in prison or jail, on probation or parole. Most Americans

probably have no idea how common it is for people to be convicted

without ever having the benefit of legal representation, or how many

people plead guilty to crimes they did not commit because of fear of

mandatory sentences.

Tens of thousands of poor people go to jail every year without ever

talking to a lawyer, and those who do meet with a lawyer for a drug

offense often spend only a few minutes discussing their case and

options before making a decision that will profoundly affect the rest of

their lives. As one public defender explained to the Los Angeles Times,

“They are herded like cattle [into the courtroom lockup], up at 3 or

4 in the morning. Then they have to make decisions that affect the rest

of their lives. You can imagine how stressful it is.” 63

More than forty years ago, in Gideon v. Wainwright, the Supreme

Court ruled that poor people accused of serious crimes were entitled

T H E L O C K D O W N 10 7

to counsel. Yet thousands of people are processed through America’s

courts annually either with no lawyer at all or with a lawyer who does

not have the time, resources, or, in some cases, the inclination to pro-

vide effective representation. In Gideon, the Supreme Court left it to

state and local governments to decide how legal services should be

funded. However, in the midst of a drug war, when politicians com-

pete with each other to prove how “tough” they can be, funding pub-

lic defender offices and paying private attorneys to represent those

accused of crimes has been a low priority.

Approximately 80 percent of criminal defendants are indigent and

thus unable to hire a lawyer.64 Yet our nation’s public defender sys-

tem is woefully inadequate. The most visible sign of the failed system

is the astonishingly large caseloads public defenders routinely carry,

making it impossible for them to provide meaningful representation

to their clients. Sometimes defenders have well over one hundred cli-

ents at a time; many of these clients are facing decades behind bars or

life imprisonment. Too often the quality of court-appointed counsel is

poor because the miserable working conditions and low pay discour-

age good attorneys from participating in the system. And some states

deny representation to impoverished defendants on the theory that

somehow they should be able to pay for a lawyer, even though they are

scarcely able to pay for food or rent. In Virginia, for example, fees paid

to court-appointed attorneys for representing someone charged with a

felony that carries a sentence of less than twenty years are capped at

$428. And in Wisconsin, more than eleven thousand poor people go

to court without representation every year because anyone who earns

more than $3,000 per year is considered able to afford a lawyer.65 In

Lake Charles, Louisiana, the public defender office has only two inves-

tigators for the 2,500 new felony cases and 4,000 new misdemeanor

cases assigned to the office each year.66 The NAACP Legal Defense

Fund and the Southern Center for Human Rights in Atlanta sued the

city of Gulfport, Mississippi, alleging that the city operated a “modern

10 8 T H E N E W J I M   C R O W

day debtor’s prison” by jailing poor people who are unable to pay their

fines and denying them the right to lawyers.

In 2004, the American Bar Association released a report on the sta-

tus of indigent defense, concluding that, “All too often, defendants

plead guilty, even if they are innocent, without really understanding

their legal rights or what is occurring. Sometimes the proceedings

reflect little or no recognition that the accused is mentally ill or does

not adequately understand English. The fundamental right to a lawyer

that Americans assume applies to everyone accused of criminal con-

duct effectively does not exist in practice for countless people across

the United States.” 67

Even when people are charged with extremely serious crimes, such

as murder, they may find themselves languishing in jail for years with-

out meeting with an attorney, much less getting a trial. One extreme

example is the experience of James Thomas, an impoverished day

laborer in Baton Rouge, Louisiana, who was charged with murder in

1996 and waited eight and a half years for his case to go to trial. It

never did. His mother finally succeeded in getting his case dismissed

after scraping together $500 to hire an attorney, who demonstrated to

the court that, in the time Thomas spent waiting for his case to go to

trial, his alibi witness had died of kidney disease. Another Louisiana

man, Johnny Lee Ball, was convicted of second-degree murder and sen-

tenced to life in prison without the possibility of parole after meeting

with a public defender for just eleven minutes before trial. If indicted

murderers have a hard time getting meaningful representation, what

are the odds that small-time drug dealers find themselves represented

by a zealous advocate? As David Carroll, the research director for the

National Legal Aid & Defender Association explained to USA Today,

“There’s a real disconnect in this country between what people perceive

is the state of indigent defense and what it is. I attribute that to shows

like Law & Order, where the defendant says, ‘I want a lawyer,’ and all

of a sudden Legal Aid appears in the cell. That’s what people think.” 68

T H E L O C K D O W N 10 9

Children caught up in this system are the most vulnerable and yet are

the least likely to be represented by counsel. In 1967, the U.S. Supreme

Court ruled in In re Gault that children under the age of eighteen have

the right to legal assistance with any criminal charges filed against

them. In practice, however, children routinely “waive” their right to

counsel in juvenile proceedings. In some states, such as Ohio, as many

as 90 percent of children charged with criminal wrongdoing are not

represented by a lawyer. As one public defender explained, “The kids

come in with their parents, who want to get this dealt with as quickly

as possible, and they say, ‘You did it, admit it.’ If people were informed

about what could be done, they might actually ask for help.” 69

Bad Deal

Almost no one ever goes to trial. Nearly all criminal cases are resolved

through plea bargaining—a guilty plea by the defendant in exchange

for some form of leniency by the prosecutor. Though it is not widely

known, the prosecutor is the most powerful law enforcement official

in the criminal justice system. One might think that judges are the

most powerful, or even the police, but in reality the prosecutor holds

the cards. It is the prosecutor, far more than any other criminal justice

official, who holds the keys to the jailhouse door.

After the police arrest someone, the prosecutor is in charge. Few

rules constrain the exercise of his or her discretion. The prosecutor is

free to dismiss a case for any reason or no reason at all. The prosecutor

is also free to file more charges against a defendant than can realisti-

cally be proven in court, so long as probable cause arguably exists—a

practice known as overcharging.

The practice of encouraging defendants to plead guilty to crimes,

rather than affording them the benefit of a full trial, has always carried

its risks and downsides. Never before in our history, though, have such

an extraordinary number of people felt compelled to plead guilty, even

1 10 T H E N E W J I M   C R O W

if they are innocent, simply because the punishment for the minor,

nonviolent offense with which they have been charged is so unbe-

lievably severe. When prosecutors offer “only” three years in prison

when the penalties defendants could receive if they took their case to

trial would be five, ten, or twenty years—or life imprisonment—only

extremely courageous (or foolish) defendants turn the offer down.

The pressure to plead guilty to crimes has increased exponential-

ly since the advent of the War on Drugs. In 1986, Congress passed

The Anti-Drug Abuse Act, which established extremely long manda-

tory minimum prison terms for low-level drug dealing and posses-

sion of crack cocaine. The typical mandatory sentence for a first-time

drug offense in federal court is five or ten years. By contrast, in other

developed countries around the world, a first- time drug offense would

merit no more than six months in jail, if jail time is imposed at all.70

State legislatures were eager to jump on the “get tough” bandwagon,

passing harsh drug laws, as well as “three strikes” laws mandating a

life sentence for those convicted of any third offense. These mandatory

minimum statutory schemes have transferred an enormous amount of

power from judges to prosecutors. Now, simply by charging someone

with an offense carrying a mandatory sentence of ten to fifteen years

or life, prosecutors are able to force people to plead guilty rather than

risk a decade or more in prison. Prosecutors admit that they routinely

charge people with crimes for which they technically have probable

cause but which they seriously doubt they could ever win in court.71

They “load up” defendants with charges that carry extremely harsh

sentences in order to force them to plead guilty to lesser offenses

and—here’s the kicker—to obtain testimony for a related case. Harsh

sentencing laws encourage people to snitch.

The number of snitches in drug cases has soared in recent years,

partly because the government has tempted people to “cooperate”

with law enforcement by offering cash, putting them “on payroll,”

and promising cuts of seized drug assets, but also because ratting out

T H E L O C K D O W N 1 1 1

co- defendants, friends, family, or acquaintances is often the only way

to avoid a lengthy mandatory minimum sentence.72 In fact, under the

federal sentencing guidelines, providing “substantial assistance” is

often the only way defendants can hope to obtain a sentence below the

mandatory minimum. The “assistance” provided by snitches is noto-

riously unreliable, as studies have documented countless informants

who have fabricated stories about drug-related and other criminal

activity in exchange for money or leniency in their pending criminal

cases.73 While such conduct is deplorable, it is not difficult to under-

stand. Who among us would not be tempted to lie if it was the only way

to avoid a forty-year sentence for a minor drug crime?

The pressure to plea-bargain and thereby “convict yourself ” in

exchange for some kind of leniency is not an accidental by-product of

the mandatory-sentencing regime. The U.S. Sentencing Commission

itself has noted that “the value of a mandatory minimum sentence lies

not in its imposition, but in its value as a bargaining chip to be given

away in return for the resource-saving plea from the defendant to a more

leniently sanctioned charge.” Describing severe mandatory sentences

as a bargaining chip is a major understatement, given its potential for

extracting guilty pleas from people who are innocent of any crime.

It is impossible to know for certain how many innocent drug defen-

dants convict themselves every year by accepting a plea bargain out of

fear of mandatory sentences, or how many are convicted due to lying

informants and paid witnesses, but reliable estimates of the number

of innocent people currently in prison tend to range from 2 percent

to 5 percent.74 While those numbers may sound small (and probably

are underestimates), they translate into thousands of innocent people

who are locked up, some of whom will die in prison. In fact, if only

1 percent of those locked in America’s prisons are actually innocent of

the crimes for which they have been convicted, that would mean tens

of thousands of innocent people are currently languishing behind bars

in the United States.

1 1 2 T H E N E W J I M   C R O W

The real point here, however, is not that innocent people are locked

up. That has been true since penitentiaries first opened in America.

The critical point is that thousands of people are swept into the crimi-

nal justice system every year pursuant to the drug war without much

regard for their guilt or innocence. The police are allowed by the

courts to conduct fishing expeditions for drugs on streets and free-

ways based on nothing more than a hunch. Homes may be searched for

drugs based on a tip from an unreliable, confidential informant who is

trading the information for money or to escape prison time. And once

swept inside the system, people are often denied attorneys or mean-

ingful representation and pressured into plea bargains by the threat of

unbelievably harsh sentences—sentences for minor drug crimes that

are higher than many countries impose on convicted murderers. This

is the way the roundup works, and it works this way in virtually every

major city in the United States.

Time Served

Once convicted of felony drug charges, one’s chances of being released

from the system in short order are slim, at best. The elimination of

judicial discretion through mandatory sentencing laws has forced

judges to impose sentences for drug crimes that are often longer

than those imposed for violent crimes in many countries around

the world. When judges have discretion, they may consider a defen-

dant’s background and impose a lighter penalty if the defendant’s

personal circumstances—extreme poverty or experience of abuse,

for example—warrant it. This flexibility—which is important in all

criminal cases—is especially important in drug cases, as studies have

indicated that many drug defendants are using or selling to support an

addiction.75 Referring a defendant to treatment, rather than sending

him or her to prison, may well be the most prudent choice—saving

government resources and potentially saving the defendant from a

T H E L O C K D O W N 1 13

lifetime of addiction. Likewise, imposing a short prison sentence (or

none at all) may increase the chances that the defendant will expe-

rience successful re- entry. A lengthy prison term may increase the

odds that re-entry will be extremely difficult, leading to relapse, and

re- imprisonment. Mandatory drug sentencing laws strip judges of

their traditional role of considering all relevant circumstances in an

effort to do justice in the individual case.

Nevertheless, harsh mandatory minimum sentences for people

convicted of drug offenses have been consistently upheld by the U.S.

Supreme Court. In 1982, the Supreme Court upheld forty years of

imprisonment for possession and an attempt to sell 9 ounces of mari-

juana.76 Several years later, in Harmelin v. Michigan, the Court upheld

a sentence of life imprisonment for a defendant with no prior convic-

tions who attempted to sell 672 grams (approximately 23 ounces) of

crack cocaine.77 The Court found the sentences imposed in those cases

“reasonably proportionate” to the offenses committed—and not “cruel

and unusual” in violation of the Eighth Amendment. This ruling was

remarkable given that, prior to the Drug Reform Act of 1986, the lon-

gest sentence Congress had ever imposed for possession of any drug in

any amount was one year. A life sentence for a first-time drug offense

is unheard of in the rest of the developed world. Even for high-end

drug crimes, most countries impose sentences that are measured in

months, rather than years. For example, a conviction for selling a kilo-

gram of heroin yields a mandatory ten-year sentence in U.S. federal

court, compared with six months in prison in England.78 Remarkably,

in the United States, a life sentence is deemed perfectly appropriate for

someone whose only crime is a first-time drug offense.

The most famous Supreme Court decision upholding mandatory

minimum sentences is Lockyer v. Andrade.79 In that case, the Court

rejected constitutional challenges to sentences of twenty-five years

without parole for a man who stole three golf clubs from a pro shop,

and fifty years without parole for another man for stealing children’s

1 1 4 T H E N E W J I M   C R O W

videotapes from a Kmart store. These sentences were imposed pur-

suant to California’s controversial three strikes law, which mandates

a sentence of twenty-five years to life for recidivists convicted of a

third felony, no matter how minor. Writing for the Court’s majority,

Justice Sandra Day O’Connor acknowledged that the sentences were

severe but concluded that they are not grossly disproportionate to the

offense, and therefore do not violate the Eighth Amendment’s ban on

“cruel and unusual” punishments. In dissent, Justice David H. Souter

retorted, “If Andrade’s sentence [for stealing videotapes] is not grossly

disproportionate, the principle has no meaning.” Similarly, counsel for

one of the defendants, University of Southern California law profes-

sor Erwin Chemerinsky, noted that the Court’s reasoning makes it

extremely difficult if not impossible to challenge any recidivist sen-

tencing law: “If these sentences aren’t cruel and unusual punishment,

what would be?”80

Mandatory sentencing laws are frequently justified as necessary to

keep “violent criminals” off the streets, yet those penalties are imposed

most often against people who are guilty of nonviolent crimes and

drug offenses. In fact, under the three strikes regime in California, a

“repeat offender” could be someone who had only a single prior case

decades ago, and one arrest can result in multiple strikes. For example,

imagine a young man, eighteen years old, who is arrested as part of an

undercover operation and charged with two counts of dealing cocaine

to minors. He had been selling to friends to earn extra money for shoes

and basic things his mother could not afford. The prosecutor offers

him probation if he agrees to plead guilty to both charges and to snitch

on a bigger dealer. Terrified of doing prison time, he takes the deal.

Several years later, he finds his punishment will never end. Branded

a felon, he is struggling to survive and to support his children. One

night he burglarizes a corner store and steals food, toothpaste, Pepsi,

and diapers for his baby boy. He is arrested almost immediately a few

blocks away. That’s it for him. He now has three strikes. His burglary

T H E L O C K D O W N 1 15

can be charged as a third strike because of his two prior felony convic-

tions. He is eligible for life imprisonment. His children will be raised

without a father.

Or imagine a woman struggling with drug addiction, unable to

obtain treatment, and desperate for money so she can feed her habit.

Together with her boyfriend, she burglarizes two homes, stealing tele-

visions they hope to sell. After her arrest, she takes a plea deal, spends

several years in prison, and is released with two strikes on her record,

one for each burglary. Two decades later, she relapses— after being

clean for fifteen years—and is arrested for selling crack. She made the

sale to support her relapse. That’s it for her. She can be locked up for

the rest of her life.

These examples may sound extreme, but real life can be worse. Sen-

tences for each charge can run consecutively, so a defendant can easily

face a sentence of fifty, seventy-five, or one hundred years to life aris-

ing from a single case. It is not uncommon for people to receive prison

sentences of more than fifty years for minor crimes. In fact, fifty years

to life was the actual sentence given to Leandro Andrade for stealing

videotapes, a sentence upheld by the Supreme Court.

The clear majority of those subject to harsh mandatory minimum

sentences in the federal system are people convicted of drug offenses.

Most are low- level, minor drug dealers—not “drug kingpins.” The sto-

ries are legion. Marcus Boyd was arrested after selling 3.9 grams of

crack cocaine to a confidential informant working with a regional drug

task force. At the time of his arrest, Marcus was twenty-four years old

and had been addicted to drugs for six years, beginning shortly after

his mother’s death and escalating throughout his early twenties. He

met the informant through a close family friend, someone he trusted.

At sentencing, the judge based the drug quantity calculation on testi-

mony from the informant and another witness, who both claimed they

bought crack from Marcus on other occasions. As a result, Marcus was

held accountable for 37.4 grams (the equivalent of 1.3 ounces) based

1 1 6 T H E N E W J I M   C R O W

on the statements made by the informant and the other witness. He

was sentenced to more than fourteen years in prison. His two children

were six and seven years old at the time of his sentencing. They will be

adults when he is released.81

Weldon Angelos is another casualty of the drug war. He will spend

the rest of his life in prison for three marijuana sales. Angelos, a

twenty-four-year-old record producer, possessed a weapon—which he

did not use or threaten to use—at the time of the sales. Under federal

sentencing guidelines, however, the sentencing judge was obligated to

impose a fifty-five-year mandatory minimum sentence. Upon doing so,

the judge noted his reluctance to send the young man away for life for

three marijuana sales. He said from the bench, “The Court believes

that to sentence Mr. Angelos to prison for the rest of his life is unjust,

cruel, and even irrational.”82

Some federal judges, including conservative judges, have quit in

protest of federal drug laws and sentencing guidelines. Face-to-face

with those whose lives hang in the balance, they are far closer to the

human tragedy occasioned by the drug war than the legislators who

write the laws from afar. Judge Lawrence Irving, a Reagan appointee,

noted upon his retirement: “If I remain on the bench, I have no choice

but to follow the law. I just can’t, in good conscience, continue to do

this.”83 Other judges, such as Judge Jack Weinstein, publicly refused

to take any more drug cases, describing “a sense of depression about

much of the cruelty I have been a party to in connection with the ‘war

on drugs.’”84 Another Reagan appointee, Judge Stanley Marshall, told a

reporter, “I’ve always been considered a fairly harsh sentencer, but it’s

killing me that I’m sending so many low-level offenders away for all

this time.”85 He made the statement after imposing a five-year sentence

on a mother in Washington, DC, who was convicted of “possession” of

crack found by police in a locked box that her son had hidden in her

attic. In California, reporters described a similar event:

T H E L O C K D O W N 1 1 7

U.S. District Judge William W. Schwarzer, a Republican

appointee, is not known as a light sentencer. Thus it was

that everyone in his San Francisco courtroom watched in

stunned silence as Schwarzer, known for his stoic demean-

or, choked with tears as he anguished over sentencing

Richard Anderson, a first offender Oakland longshoreman,

to ten years in prison without parole for what appeared to

be a minor mistake in judgment in having given a ride to a

drug dealer for a meeting with an undercover agent.86

Even Supreme Court Justice Anthony Kennedy has condemned the

harsh mandatory minimum sentences imposed on people convicted of

drug offenses. He told attorneys gathered for the American Bar Associ-

ation’s 2003 annual conference: “Our [prison] resources are misspent,

our punishments too severe, our sentences too loaded.” He then added,

“I can accept neither the necessity nor the wisdom of federal manda-

tory minimum sentences. In all too many cases, mandatory minimum

sentences are unjust.”87

The Prison Label

Most people imagine that the explosion in the U.S. prison population

during the past twenty-five years reflects changes in crime rates. Few

would guess that our prison population leaped from approximately

350,000 to 2.3 million in such a short period of time due to changes in

laws and policies, not changes in crime rates. Yet it has been changes

in our laws—particularly the dramatic increases in the length of pris-

on sentences—that has been responsible for the growth of our pris-

on system, not increases in crime. One study suggests that the entire

increase in the prison population from 1980 to 2001 can be explained

by sentencing policy changes.88

Because harsh sentencing is a major cause of the prison explosion,

1 1 8 T H E N E W J I M   C R O W

one might reasonably assume that substantially reducing the length

of prison sentences would effectively dismantle this new system of

control. That view, however, is mistaken. This system depends on the

prison label, not prison time.

Once a person is labeled a felon, he or she is ushered into a parallel

universe in which discrimination, stigma, and exclusion are perfectly

legal, and privileges of citizenship such as voting and jury service are

off-limits. It does not matter whether you have actually spent time

in prison; your second-class citizenship begins the moment you are

branded a felon. Most people branded felons, in fact, are not sentenced

to prison. As of 2008, there were approximately 2.3 million people in

prisons and jails and a staggering 5.1 million people under “commu-

nity correctional supervision”—i.e., on probation or parole.89 Merely

reducing prison terms does not have a major impact on the majority of

people in the system. It is the badge of inferiority—the felony record—

that relegates people for their entire lives to second-class status. As

described in chapter 4, for people convicted of drug crimes, there is

little hope of escape. Barred from public housing by law, discriminat-

ed against by private landlords, ineligible for food stamps, forced to

“check the box” indicating a felony conviction on employment appli-

cations for nearly every job, and denied licenses for a wide range of

professions, people whose only crime is drug addiction or possession

of a small amount of drugs for recreational use find themselves locked

out of the mainstream society and economy—permanently.

No wonder, then, that most people labeled felons are swept back

into prisons not long after their release. According to a Bureau of Jus-

tice Statistics study, about 30 percent of those released from prison

in its sample were rearrested within six months of release.90 Within

three years, nearly 68 percent were rearrested at least once for a new

offense.91 Only a small minority are rearrested for violent crimes; the

vast majority are rearrested for property offenses, drug offenses, and

offenses against the public order.92

T H E L O C K D O W N 1 19

For those released on probation or parole, the risks are especially

high. They are subject to regular surveillance and monitoring by the

police and may be stopped and searched (with or without their con-

sent) for any reason or no reason at all. As a result, they are far more

likely to be arrested (again) than those whose behavior is not subject

to constant scrutiny by law enforcement. Probationers and parolees

are at increased risk of arrest because their lives are governed by addi-

tional rules that do not apply to everyone else. Myriad restrictions

on their travel and behavior (such as a prohibition on “associating

with other felons”), as well as various requirements of probation and

parole (such as paying fines and meeting with probation officers), cre-

ate opportunities for arrest. Violation of these special rules can land

someone right back in prison. In fact, that is what happens a good deal

of the time.

The increase in prison admissions due to parole and probation viola-

tions is astounding. With respect to parole, in 1980, only 1 percent of

all prison admissions were parole violators. Twenty years later, more

than one-third (35 percent) of prison admissions resulted from parole

violations.93 To put the matter more starkly: About as many people were

returned to prison for parole violations in 2000 as were admitted to prison

in 1980 for all reasons.94 Of all parole violators returned to prison in

2000, only one-third were returned for a new conviction; two-thirds

were returned for a technical violation such as missing appointments

with a parole officer, failing to maintain employment, or failing a drug

test.95 In this system of control, failing to cope well with one’s exile sta-

tus is treated like a crime. If you fail, after being released from prison

with a criminal record—your personal badge of inferiority—to remain

drug free, or if you fail to get a job against all the odds, or if you get

depressed and miss an appointment with your parole officer (or if you

cannot afford the bus fare to take you there), you can be sent right

back to prison—where society apparently thinks millions of Ameri-

cans belong.

1 2 0 T H E N E W J I M   C R O W

This disturbing phenomenon of people cycling in and out of pris-

on, trapped by their second-class status, has been described by Loïc

Wacquant as a “closed circuit of perpetual marginality.”96 Hundreds

of thousands of people are released from prison every year, only to

find themselves locked out of the mainstream society and economy.

Most ultimately return to prison, sometimes for the rest of their lives.

Others are released again, only to find themselves in precisely the cir-

cumstances they occupied before, unable to cope with the stigma of

the prison label and their permanent pariah status.

Reducing the amount of time people spend behind bars—by elimi-

nating harsh mandatory minimums—will alleviate some of the unnec-

essary suffering caused by this system, but it will not disturb the closed

circuit. Those labeled felons will continue to cycle in and out of prison,

subject to perpetual surveillance by the police, and unable to integrate

into the mainstream society and economy. Unless the number of peo-

ple who are labeled felons is dramatically reduced, and unless the laws

and policies that keep people with criminal records marginalized from

the mainstream society and economy are eliminated, the system will

continue to create and maintain an enormous undercaste.

3
T he C olor of Ju s t ic e

Imagine you are Erma Faye Stewart, a thirty-year-old, single Afri-can American mother of two who was arrested as part of a drug
sweep in Hearne, Texas.1 All but one of the people arrested were Afri-

can American. You are innocent. After a week in jail, you have no one

to care for your two small children and are eager to get home. Your

court-appointed attorney urges you to plead guilty to a drug distribu-

tion charge, saying the prosecutor has offered probation. You refuse,

steadfastly proclaiming your innocence. Finally, after almost a month

in jail, you decide to plead guilty so you can return home to your chil-

dren. Unwilling to risk a trial and years of imprisonment, you are sen-

tenced to ten years’ probation and ordered to pay $1,000 in fines, as

well as court and probation costs. You are also now branded a drug

felon. You are no longer eligible for food stamps; you may be discrimi-

nated against in employment; you cannot vote for at least twelve years;

and you are about to be evicted from public housing. Once homeless,

your children will be taken from you and put in foster care.

A judge eventually dismisses all cases against the defendants who

did not plead guilty. At trial, the judge finds that the entire sweep was

based on the testimony of a single informant who lied to the pros-

ecution. You, however, are still branded a drug felon, homeless, and

desperate to regain custody of your children. Now place yourself in

the shoes of Clifford Runoalds, another African American victim of

1 2 2 T H E N E W J I M   C R O W

the Hearne drug bust.2 You returned home to Bryan, Texas, to attend

the funeral of your eighteen-month-old daughter. Before the funeral

services begin, the police show up and handcuff you. You beg the offi-

cers to let you take one last look at your daughter before she is buried.

The police refuse. You are told by prosecutors that you are needed to

testify against one of the defendants in a recent drug bust. You deny

witnessing any drug transaction; you don’t know what they are talk-

ing about. Because of your refusal to cooperate, you are indicted on

felony charges. After a month of being held in jail, the charges against

you are dropped. You are technically free, but as a result of your arrest

and period of incarceration, you lose your job, your apartment, your

furniture, and your car. Not to mention the chance to say good-bye to

your baby girl.

This is the War on Drugs. The brutal stories described above are

not isolated incidents, nor are the racial identities of Erma Faye

Stewart and Clifford Runoalds random or accidental. In every state

across our nation, African Americans—particularly in the poorest

neighborhoods—are subjected to tactics and practices that would

result in public outrage and scandal if committed in middle-class

white neighborhoods. In the drug war, the enemy is racially defined.

The law enforcement methods described in chapter 2 have been

employed almost exclusively in poor communities of color, resulting

in jaw-dropping numbers of African Americans and Latinos filling our

nation’s prisons and jails every year. We are told by drug warriors that

the enemy in this war is a thing—drugs—not a group of people, but

the facts prove otherwise.

Human Rights Watch reported in 2000 that, in seven states, African

Americans constitute 80 to 90 percent of all those sent to prison on

drug charges.3 In at least fifteen states, blacks are admitted to pris-

on on drug charges at a rate from twenty to fifty-seven times greater

than that of white men.4 In fact, nationwide, the rate of incarceration

for African Americans convicted of drug offenses dwarfs the rate of

T H E C O L O R O F J U S T I C E 1 2 3

whites. When the War on Drugs gained full steam in the mid- 1980s,

prison admissions for African Americans skyrocketed, nearly quadru-

pling in three years, and then increasing steadily until it reached in

2000 a level more than twenty-six times the level in 1983.5 The number

of 2000 drug admissions for Latinos was twenty-two times the number

of 1983 admissions.6 Whites have been admitted to prison for drug

offenses at increased rates as well—the number of whites admitted for

drug offenses in 2000 was eight times the number admitted in 1983—

but their relative numbers are small compared to blacks’ and Latinos’.7

Although the majority of illegal drug users and dealers nationwide are

white, three-fourths of all people imprisoned for drug offenses have

been black or Latino.8 In recent years, rates of black imprisonment

for drug offenses have dipped somewhat—declining approximately

25 percent from their zenith in the mid-1990s—but it remains the case

that African Americans are incarcerated at grossly disproportionate

rates throughout the United States.9

There is, of course, an official explanation for all of this: crime

rates. This explanation has tremendous appeal—before you know the

facts—for it is consistent with, and reinforces, dominant racial nar-

ratives about crime and criminality dating back to slavery. The truth,

however, is that rates and patterns of drug crime do not explain the

glaring racial disparities in our criminal justice system. People of all

races use and sell illegal drugs at remarkably similar rates.10 If there

are significant differences in the surveys to be found, they frequently

suggest that whites, particularly white youth, are more likely to engage

in illegal drug dealing than people of color.11 One study, for example,

published in 2000 by the National Institute on Drug Abuse report-

ed that white students use cocaine at seven times the rate of black

students, use crack cocaine at eight times the rate of black students,

and use heroin at seven times the rate of black students.12 That same

survey revealed that nearly identical percentages of white and black

high school seniors use marijuana. The National Household Survey

1 2 4 T H E N E W J I M   C R O W

on Drug Abuse reported in 2000 that white youth aged 12–17 are

more than a third more likely to have sold illegal drugs than African

American youth.13 Thus the very same year Human Rights Watch was

reporting that African Americans were being arrested and imprisoned

at unprecedented rates, government data revealed that blacks were no

more likely to be guilty of drug crimes than whites and that white

youth were actually the most likely of any racial or ethnic group to be

guilty of illegal drug possession and sales. Any notion that drug use

among blacks is more severe or dangerous is belied by the data; white

youth have about three times the number of drug-related emergency

room visits as their African American counterparts.14

The notion that whites comprise the vast majority of drug users

and dealers—and may well be more likely than other racial groups to

commit drug crimes—may seem implausible to some, given the media

imagery we are fed on a daily basis and the racial composition of our

prisons and jails. Upon reflection, however, the prevalence of white

drug crime—including drug dealing—should not be surprising. After

all, where do whites get their illegal drugs? Do they all drive to the

ghetto to purchase them from somebody standing on a street corner?

No. Studies consistently indicate that drug markets, like American

society generally, reflect our nation’s racial and socioeconomic bound-

aries. Whites tend to sell to whites; blacks to blacks.15 University stu-

dents tend to sell to each other.16 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.17 White high school students typically

buy drugs from white classmates, friends, or older relatives. Even Bar-

ry McCaffrey, former director of the White House Office of National

Drug Control Policy, once remarked, if your child bought drugs, “it

was from a student of their own race generally.”18 The notion that most

illegal drug use and sales happens in the ghetto is pure fiction. Drug

trafficking occurs there, but it occurs everywhere else in America as

well. Nevertheless, black men have been admitted to state prison on

T H E C O L O R O F J U S T I C E 1 2 5

drug charges at a rate that is more than thirteen times higher than that

of white men.19 The racial bias inherent in the drug war is a major rea-

son that 1 in every 14 black men was behind bars in 2006, compared

with 1 in 106 white men.20 For young black men, the statistics are even

worse. One in 9 black men between the ages of twenty and thirty-five

was behind bars in 2006, and far more were under some form of penal

control—such as probation or parole.21 These gross racial disparities

simply cannot be explained by rates of illegal drug activity among

African Americans.

What, then, does explain the extraordinary racial disparities in our

criminal justice system? Old-fashioned racism seems out of the ques-

tion. Politicians and law enforcement officials today rarely endorse

racially biased practices, and most of them fiercely condemn racial

discrimination of any kind. When accused of racial bias, police and

prosecutors—like most Americans—express horror and outrage.

Forms of race discrimination that were open and notorious for cen-

turies were transformed in the 1960s and 1970s into something

un-American—an affront to our newly conceived ethic of color-

blindness. By the early 1980s, survey data indicated that 90 percent

of whites thought black and white children should attend the same

schools, 71 percent disagreed with the idea that whites have a right

to keep blacks out of their neighborhoods, 80 percent indicated they

would support a black candidate for president, and 66 percent opposed

laws prohibiting intermarriage.22 Although far fewer supported spe-

cific policies designed to achieve racial equality or integration (such

as busing), the mere fact that large majorities of whites were, by the

early 1980s, supporting the antidiscrimination principle reflected a

profound shift in racial attitudes. The margin of support for colorblind

norms has only increased since then.

This dramatically changed racial climate has led defenders of mass

incarceration to insist that our criminal justice system, whatever its

past sins, is now largely fair and nondiscriminatory. They point to

1 2 6 T H E N E W J I M   C R O W

violent crime rates in the African American community as a justifi-

cation for the staggering number of black men who find themselves

behind bars. Black men, they say, have much higher rates of violent

crime; that’s why so many of them are locked up.

Typically, this is where the discussion ends.

The problem with this abbreviated analysis is that violent crime is

not responsible for mass incarceration. As numerous researchers have

shown, violent crime rates have fluctuated over the years and bear lit-

tle relationship to incarceration rates—which have soared during the

past three decades regardless of whether violent crime was going up

or down.23 Today violent crime rates are at historically low levels, yet

incarceration rates continue to climb.

Murder convictions tend to receive a tremendous amount of media

attention, which feeds the public’s sense that violent crime is rampant

and forever on the rise. But like violent crime in general, the mur-

der rate cannot explain the growth of the penal apparatus. Homicide

convictions account for a tiny fraction of the growth in the prison

population. In the federal system, for example, homicide convictions

account for 0.4 percent of the past decade’s growth in the federal pris-

on population, while drug convictions account for nearly 61 percent

of that expansion.24 In the state system, less than 3 percent of new

court commitments to state prison typically involve people convicted

of homicide.25

Roughly half of the people in state prisons are classified as violent

offenders, but that statistic can easily be misinterpreted. The term vio-

lent offender can apply to people who have been convicted of a wide

range of crimes—from fist fights to armed robbery to rape or murder.

The general public seems to imagine that our prisons are filled with

“rapists and murderers,” but they actually account for a small minority

of our nation’s prison population.

Equally important to understand is this: the fact that half of a state’s

prison population is comprised of people who are labeled violent

T H E C O L O R O F J U S T I C E 1 2 7

offenders does not mean that half of the people sentenced to prison

in that state have been convicted of violent crimes. This may seem

counterintuitive at first, but if you pause to consider how the system

actually operates this fact becomes obvious. People who are convicted

of violent crimes tend to get longer prison sentences than those who

commit nonviolent offenses. As a result, people who are classified as

violent offenders comprise a much larger share of the prison popula-

tion than they would if they had earlier release dates.

A hypothetical scenario may help here. Picture in your mind a prison

hallway lined with cells (ten on each side) that are occupied by people

for varying lengths of time. Imagine that each cell holds two people.

One side of the hallway is reserved for people who have been convicted

of drug or property crimes and who have relatively short sentences

of five years or fewer. The other side of the hallway is reserved for

people who have been convicted of violent crimes and sentenced to

ten years or more (or life imprisonment). During a single decade, more

than a hundred people could cycle in and out of the cages reserved for

people convicted of nonviolent crimes, while the same twenty people

who are locked up for violent crimes on the other side of the hallway

would remain in place. At any given moment, if you were to snap a

picture of that hallway, half the people living in cages would be clas-

sified as “violent offenders.” But this picture would wildly distort your

understanding of the population that had been sentenced to prison

during the past ten years. Although prison hallways are not segregated

in this fashion, some version of this dynamic occurs in prisons across

America, resulting in prisons that are half-filled with people convicted

of violent crimes, even though most people sentenced to prisons and

jails were convicted of lesser offenses.

The most important fact to keep in mind, however, is that debates

about prison statistics typically ignore a key fact: most people who are

under state supervision and control are not in prison. Of the nearly 7.3

million people currently under correctional control, only 2.3 million

1 2 8 T H E N E W J I M   C R O W

are in prison or jail.26 The rest are on probation or parole. More than 4

million people are on probation in the United States (roughly twice the

number in prison) and only 19 percent of them were convicted of a vio-

lent offense. Similarly, the overwhelming majority of people on parole

were convicted of nonviolent crimes.27 The most common offense for

which people are placed on probation or parole is a drug offense.28

Even if the analysis is limited to felonies—thus excluding extremely

minor crimes and misdemeanors—nonviolent offenses predominate.

Only about a quarter of felony defendants in large urban counties were

charged with a violent offense in 2006.29

Nevertheless, politicians, law enforcement officials, and journalists

routinely create the false impression that most people branded crimi-

nals have been convicted of violent crimes. They point to the current

composition of state prisons as “proof” of this imagined fact, ignoring

that sentencing practices distort our understanding of who is placed

under state control and why. The lie that “most people sent to prison

are violent offenders” is dangerous because it perpetuates the false

notion that our system of mass incarceration is primarily concerned

with violence and that it is well designed to keep people safe. In fact,

the system is primarily concerned with the perpetual control and mar-

ginalization of the dispossessed.

None of this is to suggest that we ought not be concerned about vio-

lent crime. Nor is it to say that we should not care about people serv-

ing time for violent offenses. We should care deeply about all people

impacted, including people who live in fear of violence, people who

are survivors, and those who commit violent crimes. Often these cat-

egories overlap, since nearly everyone who engages in violence first

survives it. If we truly want to end violence in our communities, we

must come to understand, as discussed in the final chapter, the ways

in which mass incarceration increases—not decreases—violence and

multiplies its harms. But at the same time, we ought not be misled by

those who insist that violent crime has driven the rise of this unprec-

edented system of racial and social control. The uncomfortable reality

T H E C O L O R O F J U S T I C E 1 2 9

is that a literal war has been waged on our most vulnerable commu-

nities, and convictions for relatively minor, nonviolent offenses have

propelled mass incarceration. In many states, including Colorado and

Maryland, people convicted of drug offenses now constitute the sin-

gle largest category of people admitted to prison.30 People of color are

convicted of drug offenses at rates out of all proportion to their drug

crimes, a fact that has greatly contributed to the emergence of a vast

new racial undercaste—a system of mass incarceration that governs

the lives of millions of people inside and outside of prison walls.

These facts may still leave some readers unsatisfied. The idea that

the criminal justice system discriminates in such a terrific fashion

when few people openly express or endorse racial discrimination may

seem far-fetched, if not absurd. How could the War on Drugs operate

in a discriminatory manner, on such a large scale, when hardly anyone

advocates or engages in explicit race discrimination? That question is

the subject of this chapter. As we shall see, despite the colorblind rhet-

oric and fanfare of recent years, the design of the drug war effectively

guarantees that those who are swept into the nation’s new undercaste

are largely black and brown.

This sort of claim invites skepticism. Nonracial explanations and

excuses for the systematic mass incarceration of people of color are

plentiful. It is the genius of the new system of control that it can always

be defended on nonracial grounds, given the rarity of a noose or a

racial slur in connection with any particular criminal case. Moreover,

because blacks and whites are almost never similarly situated (given

extreme racial segregation in housing and disparate life experiences),

trying to “control for race” in an effort to evaluate whether the mass

incarceration of people of color is really about race or something else—

anything else—is difficult. But it is not impossible.

A bit of common sense is overdue in public discussions about racial

bias in the criminal justice system. The great debate over whether

black men have been targeted by the criminal justice system or unfair-

ly treated in the War on Drugs often overlooks the obvious. What is

13 0 T H E N E W J I M   C R O W

painfully obvious when one steps back from individual cases and spe-

cific policies is that the system of mass incarceration operates with

stunning efficiency to sweep people of color off the streets, lock them

in cages, and then release them into an inferior second-class status.

Nowhere is this more true than in the War on Drugs.

The central question, then, is how exactly does a formally color-

blind criminal justice system achieve such racially discriminatory

results? Rather easily, it turns out. The process occurs in two stages.

The first step is to grant law enforcement officials extraordinary dis-

cretion regarding whom to stop, search, arrest, and charge for drug

offenses, thus ensuring that conscious and unconscious racial beliefs

and stereotypes will be given free rein. Unbridled discretion inevita-

bly creates huge racial disparities. Then, the damning step: close the

courthouse doors to all claims by defendants and private litigants that

the criminal justice system operates in racially discriminatory fashion.

Demand that anyone who wants to challenge racial bias in the system

offer, in advance, clear proof that the racial disparities are the prod-

uct of intentional racial discrimination—i.e., the work of a bigot. This

evidence will almost never be available in the era of colorblindness,

because everyone knows—but does not say—that the enemy in the

War on Drugs can be identified by race. This simple design has helped

to produce one of the most extraordinary systems of racialized social

control the world has ever seen.

Picking and Choosing—The Role of Discretion

Chapter 2 described the first step in some detail, including the legal

rules that grant police the discretion and authority to stop, interro-

gate, and search anyone, anywhere, provided they get “consent” from

the targeted individual. It also examined the legal framework that

affords prosecutors extraordinary discretion to charge or not charge,

plea bargain or not, and load up defendants with charges carrying the

threat of harsh mandatory sentences in order to force guilty pleas, even

T H E C O L O R O F J U S T I C E 13 1

in cases in which the defendants may well be innocent. These rules

have made it possible for law enforcement agencies to boost dramati-

cally their rates of drug arrests and convictions, even in communities

where drug crime is stable or declining.31 But that is not all. These

rules have also guaranteed racially discriminatory results.

The reason is this: drug-law enforcement is unlike most other types

of law enforcement. When a violent crime or a robbery occurs, the

criminal activity usually causes harm or violates someone’s rights.

But with drug crime, neither the purchaser of the drugs nor the seller

has any incentive to contact law enforcement. It is consensual activity.

Equally important, it is popular. The clear majority of Americans of all

races have violated drug laws in their lifetime. In fact, in any given year,

more than one in ten Americans violate drug laws. But due to resource

constraints (and the politics of the drug war), only a small fraction are

arrested, convicted, and incarcerated. In 2002, for example, there were

19.5 million illicit drug users, compared to 1.5 million drug arrests

and 175,000 people admitted to prison for a drug offense.32

The ubiquity of illegal drug activity, combined with its consensual

nature, requires a far more proactive approach by law enforcement

than what is required to address ordinary street crime. It is impos-

sible for law enforcement to identify and arrest everyone who commits

a drug crime. Strategic choices must be made about whom to target

and what tactics to employ. Police and prosecutors did not declare the

War on Drugs—and some initially opposed it—but once the finan-

cial incentives for waging the war became too attractive to ignore, law

enforcement agencies had to ask themselves, if we’re going to wage

this war, where should it be fought and who should be taken prisoner?

That question was not difficult to answer, given the political and

social context. As discussed in chapter 1, the Reagan administra-

tion launched a media campaign a few years after the drug war was

announced in an effort to publicize horror stories involving black

crack users and crack dealers in ghetto communities. Although crack

cocaine had not yet hit the streets when the War on Drugs was declared

13 2 T H E N E W J I M   C R O W

in 1982, its appearance a few years later created the perfect opportuni-

ty for the Reagan administration to build support for its new war. Drug

use, once considered a private, public-health matter, was reframed

through political rhetoric and media imagery as a grave threat to the

national order.

Jimmie Reeves and Richard Campbell show in their research how

the media imagery surrounding cocaine changed as the practice of

smoking cocaine came to be associated with poor blacks.33 Early in

the 1980s, the typical cocaine-related story focused on white recre-

ational users who snorted the drug in its powder form. These stories

generally relied on news sources associated with the drug treatment

industry, such as rehabilitation clinics, and emphasized the possibility

of recovery. By 1985, however, as the War on Drugs moved into high

gear, this frame was supplanted by a new “siege paradigm,” in which

transgressors were poor, nonwhite users and dealers of crack cocaine.

Law enforcement officials assumed the role of drug “experts,” empha-

sizing the need for law and order responses—a crackdown on those

associated with the drug. These findings are consistent with numerous

other studies, including a study of network television news from 1990

and 1991, which found that a predictable “us against them” frame was

used in the news stories, with “us” being white, suburban America,

and “them” being black Americans and a few corrupted whites.34

The media bonanza inspired by the administration’s campaign solid-

ified in the public imagination the image of the black drug criminal.

Although explicitly racial political appeals remained rare, the calls for

“war” at a time when the media was saturated with images of black

drug crime left little doubt about who the enemy was in the War on

Drugs and exactly what he looked like. Jerome Miller, the former exec-

utive director of the National Center for Institutions and Alternatives,

described the dynamic this way: “There are certain code words that

allow you never to have to say ‘race,’ but everybody knows that’s what

you mean and ‘crime’ is one of those. . . . So when we talk about locking

T H E C O L O R O F J U S T I C E 13 3

up more and more people, what we’re really talking about is locking

up more and more black men.”35 Another commentator noted, “It is

unnecessary to speak directly of race [today] because speaking about

crime is talking about race.”36 Indeed, not long after the drug war was

ramped up in the media and political discourse, almost no one imag-

ined that “drug criminals” could be anything other than black.

A survey was conducted in 1995 asking the following question:

“Would you close your eyes for a second, envision a drug user, and

describe that person to me?” The startling results were published

in the Journal of Alcohol and Drug Education. Ninety-five percent of

respondents pictured a black drug user, while only 5 percent imagined

other racial groups.37 These results contrast sharply with the reality of

drug crime in America. African Americans constituted only 15 percent

of current drug users in 1995, and they constitute roughly the same

percentage today. Whites constituted the vast majority of drug users

then (and now), but almost no one pictured a white person when asked

to imagine what a drug user looks like. The same group of respondents

also perceived the typical drug trafficker as black.

There is no reason to believe that the survey results would have been

any different if police officers or prosecutors—rather than the general

public—had been the respondents. Law enforcement officials, no less

than the rest of us, have been exposed to the racially charged political

rhetoric and media imagery associated with the drug war. In fact, for

nearly three decades, news stories regarding virtually all street crime

have disproportionately featured African Americans. One study sug-

gests that the standard crime news “script” is so prevalent and so thor-

oughly racialized that viewers imagine a black perpetrator even when

none exists. In that study, 60 percent of viewers who saw a story with

no image falsely recalled seeing one, and 70 percent of those viewers

believed the perpetrator to be African American.38

Decades of cognitive bias research demonstrates that both uncon-

scious and conscious biases lead to discriminatory actions, even when

13 4 T H E N E W J I M   C R O W

an individual does not want to discriminate.39 The quotation, commonly

attributed to Nietzsche, that “there is no immaculate perception,” per-

fectly captures how cognitive schemas—thought structures—influence

what we notice and how the things we notice get interpreted.40 Studies

have shown that racial schemas operate not only as part of conscious,

rational deliberations, but also automatically—without conscious

awareness or intent.41 One study, for example, involved a video game

that placed photographs of white and black individuals holding either

a gun or other object (such as a wallet, soda can, or cell phone) into

various photographic backgrounds. Participants were told to decide

as quickly as possible whether to shoot the target. Consistent with

earlier studies, participants were more likely to mistake a black target

as armed when he was not and mistake a white target as unarmed

when in fact he was armed.42 This pattern of discrimination reflected

automatic, unconscious thought processes, not careful deliberations.

Most striking, perhaps, is the overwhelming evidence that implic-

it bias measures are disassociated from explicit bias measures.43 In

other words, the fact that you may honestly believe that you are not

biased against African Americans, and that you may even have black

friends or relatives, does not mean that you are free from unconscious

bias. Implicit bias tests may still show that you hold negative attitudes

and stereotypes about blacks, even though you do not believe you

do and do not want to.44 In the study described above, for example,

black participants showed an amount of “shooter bias” similar to that

shown by whites.45 Not surprisingly, people who have the greatest

explicit bias (as measured by self-reported answers to survey ques-

tions) against a racial group tend also to have the greatest implicit bias

against them, and vice versa.46 Yet there is often a weak correlation

between degrees of explicit and implicit bias; many people who think

they are not biased prove when tested to have relatively high levels of

bias.47 Unfortunately, a fairly consistent finding is that punitiveness

and hostility almost always increase when people are primed—even

T H E C O L O R O F J U S T I C E 13 5

subliminally—with images or verbal cues associated with African

Americans. In fact, studies indicate that people become increas-

ingly harsh when a criminal suspect is darker and more “stereotypi-

cally black”; they are more lenient when the accused is lighter and

appears more stereotypically white. This is true of jurors as well as

law enforcement officers.48

Viewed as a whole, the relevant research by cognitive and social psy-

chologists to date suggests that racial bias in the drug war was inevi-

table, once a public consensus was constructed by political and media

elites that drug crime is black and brown. Once blackness and crime,

especially drug crime, became conflated in the public consciousness,

the “criminalblackman,” as termed by legal scholar Kathryn Russell,

would inevitably become the primary target of law enforcement.49

Some discrimination would be conscious and deliberate, as many

honestly and consciously would believe that black men deserve extra

scrutiny and harsher treatment. Much racial bias, though, would oper-

ate unconsciously and automatically—even among law enforcement

officials genuinely committed to equal treatment under the law.

Whether or not one believes racial discrimination in the drug war

was inevitable, it should have been glaringly obvious in the 1980s and

1990s that an extraordinarily high risk of racial bias in the administra-

tion of criminal justice was present, given the way in which all crime

had been framed in the media and in political discourse. Awareness

of this risk did not require intimate familiarity with cognitive bias

research. Anyone possessing a television set during this period would

likely have had some awareness of the extent to which black men had

been demonized in the War on Drugs.

The risk that African Americans would be unfairly targeted should

have been of special concern to the U.S. Supreme Court—the one

branch of government charged with the responsibility of protecting

“discrete and insular minorities” from the excesses of majoritarian

democracy and guaranteeing constitutional rights for groups deemed

13 6 T H E N E W J I M   C R O W

unpopular or subject to prejudice.50 Yet when the time came for the

Supreme Court to devise the legal rules that would govern the War on

Drugs, the Court adopted rules that would maximize—not minimize—

the amount of racial discrimination that would likely occur. It then

closed the courthouse doors to claims of racial bias.

Whren v. United States is a case in point. As noted in chapter 2, the

Court held in Whren that police officers are free to use minor traffic

violations as an excuse to stop motorists for drug investigations—even

when there is no evidence whatsoever that the motorist has engaged

in drug crime. So long as a minor traffic violation—such as failing to

use a turn signal, exceeding the speed limit by a mile or two, tracking

improperly between the lines, or stopping on a pedestrian walkway—

can be identified, police are free to stop motorists for the purpose of

engaging in a fishing expedition for drugs. Such police conduct, the

Court concluded, does not violate the Fourth Amendment’s ban on

“unreasonable searches and seizures.”51

For good reason, the petitioners in Whren argued that granting

police officers such broad discretion to investigate virtually anyone

for drug crimes created a high risk that police would exercise their

discretion in a racially discriminatory manner. With no requirement

that any evidence of drug activity actually be present before launching

a drug investigation, police officers’ snap judgments regarding who

seems like a drug criminal would likely be influenced by prevailing

racial stereotypes and bias. They urged the Court to prohibit the police

from stopping motorists for the purpose of drug investigations unless

the officers actually had reason to believe a motorist was committing,

or had committed, a drug crime. Failing to do so, they argued, was

unreasonable under the Fourth Amendment and would expose Afri-

can Americans to a high risk of discriminatory stops and searches.

Not only did the Court reject the petitioners’ central claim—

that using traffic stops as a pretext for drug investigations is

unconstitutional—it ruled that claims of racial bias could not be

T H E C O L O R O F J U S T I C E 13 7

brought under the Fourth Amendment. In other words, the Court

barred any victim of race discrimination by the police from even alleg-

ing a claim of racial bias under the Fourth Amendment. According

to the Court, whether or not police discriminate on the basis of race

when making traffic stops is irrelevant to a consideration of whether

their conduct is “reasonable” under the Fourth Amendment.

The Court did offer one caveat, however. It indicated that victims of

race discrimination could still state a claim under the equal protection

clause of the Fourteenth Amendment, which guarantees “equal treat-

ment under the laws.” This suggestion may have been reassuring to

those unfamiliar with the Court’s equal protection jurisprudence. But

for those who have actually tried to prove race discrimination under

the Fourteenth Amendment, the Court’s remark amounted to cruel

irony. As we shall see below, the Supreme Court has made it virtually

impossible to challenge racial bias in the criminal justice system under

the Fourteenth Amendment, and it has barred litigation of such claims

under federal civil rights laws as well.

Closing the Courthouse Doors—McCleskey v. Kemp

First, consider sentencing. In 1987, when media hysteria regarding

black drug crime was at fever pitch and the evening news was satu-

rated with images of black men shackled in courtrooms, the Supreme

Court ruled in McCleskey v. Kemp that racial bias in sentencing, even

if shown through credible statistical evidence, could not be challenged

under the Fourteenth Amendment in the absence of clear evidence of

conscious, discriminatory intent. On its face, the case appeared to be

a straightforward challenge to Georgia’s death penalty scheme. Once

the Court’s opinion was released, however, it became clear the case

was about much more than the death penalty. The real issue at hand

was whether—and to what extent—the Supreme Court would tolerate

racial bias in the criminal justice system as a whole. The Court’s answer

13 8 T H E N E W J I M   C R O W

was that racial bias would be tolerated—virtually to any degree—so

long as no one admitted it.

Warren McCleskey was a black man facing the death penalty for

killing a white police officer during an armed robbery in Georgia. Rep-

resented by the NAACP Legal Defense and Education Fund, McCles-

key challenged his death sentence on the grounds that Georgia’s

death penalty scheme was infected with racial bias and thus violated

the Fourteenth and Eighth Amendments. In support of his claim, he

offered an exhaustive study of more than two thousand murder cases

in Georgia. The study was known as the Baldus study—named after

Professor David Baldus, who was its lead author. The study found

that defendants charged with killing white victims received the death

penalty eleven times more often than defendants charged with kill-

ing black victims. Georgia prosecutors seemed largely to blame for the

disparity; they sought the death penalty in 70 percent of cases involv-

ing black defendants and white victims, but only 19 percent of cases

involving white defendants and black victims.52

Sensitive to the fact that numerous factors besides race can influ-

ence the decision making of prosecutors, judges, and juries, Baldus and

his colleagues subjected the raw data to highly sophisticated statistical

analysis to see if nonracial factors might explain the disparities. Yet

even after accounting for thirty-five nonracial variables, the research-

ers found that defendants charged with killing white victims were 4.3

times more likely to receive a death sentence than defendants charged

with killing blacks. Black defendants, like McCleskey, who killed white

victims had the highest chance of being sentenced to death in Georgia.53

The case was closely watched by criminal lawyers and civil rights

lawyers nationwide. The statistical evidence of discrimination that

Baldus had developed was the strongest ever presented to a court

regarding race and criminal sentencing. If McCleskey’s evidence was

not enough to prove discrimination in the absence of some kind of rac-

ist utterance, what would be?

T H E C O L O R O F J U S T I C E 13 9

By a one-vote margin, the Court rejected McCleskey’s claims under

the Fourteenth Amendment, insisting that unless McCleskey could

prove that the prosecutor in his particular case had sought the death

penalty because of race or that the jury had imposed it for racial rea-

sons, the statistical evidence of race discrimination in Georgia’s death

penalty system did not prove unequal treatment under the law. The

Court accepted the statistical evidence as valid but insisted that evi-

dence of conscious, racial bias in McCleskey’s individual case was

necessary to prove unlawful discrimination. In the absence of such

evidence, patterns of discrimination—even patterns as shocking as

demonstrated by the Baldus study—did not violate the Fourteenth

Amendment.

In erecting this high standard, the Court knew full well that the

standard could not be met absent an admission that a prosecutor

or judge acted because of racial bias. The majority opinion openly

acknowledged that long-standing rules generally bar litigants from

obtaining discovery from the prosecution regarding charging pat-

terns and motives, and that similar rules forbid introduction of evi-

dence of jury deliberations even when a juror has chosen to make

deliberations public.54 The very evidence that the Court demanded in

McCleskey—evidence of deliberate bias in his individual case—would

almost always be unavailable and/or inadmissible due to procedural

rules that shield jurors and prosecutors from scrutiny. This dilemma

was of little concern to the Court. It closed the courthouse doors to

claims of racial bias in sentencing.

There is good reason to believe that, despite appearances, the McCles-

key decision was not really about the death penalty at all; rather, the

Court’s opinion was driven by a desire to immunize the entire crimi-

nal justice system from claims of racial bias. The best evidence in sup-

port of this view can be found at the end of the majority opinion where

the Court states that discretion plays a necessary role in the imple-

mentation of the criminal justice system, and that discrimination is an

1 4 0 T H E N E W J I M   C R O W

inevitable by-product of discretion. Racial discrimination, the Court

seemed to suggest, was something that simply must be tolerated in the

criminal justice system, provided no one admits to racial bias.

The majority observed that significant racial disparities had been

found in other criminal settings beyond the death penalty, and that

McCleskey’s case implicitly calls into question the integrity of the

entire system. In the Court’s words: “Taken to its logical conclusion,

[Warren McCleskey’s claim] throws into serious question the prin-

ciples that underlie our criminal justice system. . . . [I]f we accepted

McCleskey’s claim that racial bias has impermissibly tainted the capi-

tal sentencing decision, we could soon be faced with similar claims

as to other types of penalty.”55 The Court openly worried that other

actors in the criminal justice system might also face scrutiny for alleg-

edly biased decision making if similar claims of racial bias in the sys-

tem were allowed to proceed. Driven by these concerns, the Court

rejected McCleskey’s claim that Georgia’s death penalty system vio-

lates the Eighth Amendment’s ban on arbitrary punishment, framing

the critical question as whether the Baldus study demonstrated a “con-

stitutionally unacceptable risk” of discrimination. Its answer was no.

The Court deemed the risk of racial bias in Georgia’s capital sentenc-

ing scheme “constitutionally acceptable.” Justice Brennan pointedly

noted in his dissent that the Court’s opinion “seems to suggest a fear

of too much justice.”56

Cracked Up—Discriminatory Sentencing
in the War on Drugs

Anyone who doubts the devastating impact of McCleskey v. Kemp on

African American defendants throughout the criminal justice system,

including those ensnared by the War on Drugs, need only ask Edward

Clary. Two months after his eighteenth birthday, Clary was stopped

and searched in the St. Louis airport because he “looked like” a drug

T H E C O L O R O F J U S T I C E 1 4 1

courier. At the time, he was returning home from visiting some friends

in California. One of them persuaded him to take some drugs back

home to St. Louis. Clary had never attempted to deal drugs before, and

he had no criminal record.

During the search, the police found crack cocaine and promptly

arrested him. He was convicted in federal court and sentenced under

federal laws that punish crack offenses one hundred times more

severely than offenses involving powder cocaine. A conviction for the

sale of five hundred grams of powder cocaine triggers a five-year man-

datory sentence, while only five grams of crack triggers the same sen-

tence. Because Clary had been caught with more than fifty grams of

crack (less than two ounces), the sentencing judge believed he had no

choice but to sentence him—an eighteen-year-old who had no crimi-

nal record—to a minimum of ten years in federal prison.

Clary, like defendants in other crack cases, challenged the consti-

tutionality of the hundred-to-one ratio. His lawyers argued that the

law is arbitrary and irrational, because it imposes such vastly different

penalties on two forms of the same substance. They also argued that

the law discriminates against African Americans, because the major-

ity of those charged with crimes involving crack at that time were

black (approximately 93 percent of those convicted of crack offenses

were black; 5 percent were white), whereas those convicted of powder

cocaine offenses were predominantly white.

Every federal appellate court to have considered these claims

had rejected them on the ground that Congress— rightly or

wrongly— believed that crack was more dangerous to society, a view

supported by the testimony of some drug- abuse “experts” and police

officers. The fact that most of the evidence in support of any disparity

had since been discredited was deemed irrelevant; what mattered was

whether the law had seemed rational at the time it was adopted. Con-

gress, the courts concluded, is free to amend the law if circumstances

have changed.

1 4 2 T H E N E W J I M   C R O W

Courts also had rejected claims that crack sentencing laws were

racially discriminatory, largely on the grounds that the Supreme

Court’s decision in McCleskey v. Kemp precluded such a result. In the

years following McCleskey, lower courts consistently rejected claims of

race discrimination in the criminal justice system, finding that gross

racial disparities do not merit strict scrutiny in the absence of evidence

of explicit race discrimination—the very evidence unavailable in the

era of colorblindness.

Judge Clyde Cahill of the Federal District of Missouri, an African

American judge assigned Clary’s case, boldly challenged the prevailing

view that courts are powerless to address forms of race discrimina-

tion that are not overtly hostile. Cahill declared the hundred-to-one

ratio racially discriminatory in violation of the Fourteenth Amend-

ment, notwithstanding McCleskey.57 Although no admissions of racial

bias or racist intent could be found in the record, Judge Cahill believed

race was undeniably a factor in the crack sentencing laws and policies.

He traced the history of the get-tough movement and concluded that

fear coupled with unconscious racism had led to a lynch-mob men-

tality and a desire to control crime—and those deemed responsible

for it—at any cost. Cahill acknowledged that many people may not

believe they are motivated by discriminatory attitudes but argued that

we all have internalized fear of young black men, a fear reinforced by

media imagery that has helped to create a national image of the young

black male as a criminal. “The presumption of innocence is now a

legal myth,” he declared. “The 100-to-1 ratio, coupled with mandatory

minimum sentencing provided by federal statute, has created a situa-

tion that reeks with inhumanity and injustice. . . . If young white males

were being incarcerated at the same rate as young black males, the

statute would have been amended long ago.” Judge Cahill sentenced

Clary as if the drug he had carried home had been powder cocaine.

The sentence imposed was four years in prison. Clary served his term

and was released.

T H E C O L O R O F J U S T I C E 1 4 3

The prosecution appealed Clary’s case to the Eighth Circuit Court

of Appeals, which reversed Judge Cahill in a unanimous opinion, find-

ing that the case was not even close. In the court’s view, there was

no credible evidence that the crack penalties were motivated by any

conscious racial bigotry, as required by McCleskey v. Kemp. The court

remanded the case back to the district court for resentencing. Clary—

now married and a father—was ordered back to prison to complete his

ten-year term.58

Few challenges to sentencing schemes, patterns, or results have

been brought since McCleskey, for the exercise is plainly futile. Yet in

1995, a few brave souls challenged the implementation of Georgia’s

“two strikes and you’re out” sentencing scheme, which imposes life

imprisonment for a second drug offense. Georgia’s district attorneys,

who have unbridled discretion to decide whether to seek this harsh

penalty, had invoked it against only 1 percent of white defendants fac-

ing a second drug conviction but against 16 percent of black defen-

dants. The result was that 98.4 percent of those serving life sentences

under the provision were black. The Georgia Supreme Court ruled,

by a 4–3 vote, that the stark racial disparity presented a threshold

case of discrimination and required the prosecutors to offer a race-

neutral explanation for the results. Rather than offer a justification,

however, the Georgia attorney general filed a petition for rehearing

signed by every one of the state’s forty-six district attorneys, all of

whom were white. The petition argued that the Court’s decision was

a dire mistake; if the decision were allowed to stand and prosecutors

were compelled to explain gross racial disparities such as the ones at

issue, it would be a “substantial step toward invalidating” the death

penalty and would “paralyze the criminal justice system”—apparently

because severe and inexplicable racial disparities pervaded the system

as a whole. Thirteen days later, the Georgia Supreme Court reversed

itself, holding that the fact that 98.4 percent of the defendants selected

to receive life sentences for repeat drug offenses were black required

1 4 4 T H E N E W J I M   C R O W

no justification. The court’s new decision relied almost exclusively on

McCleskey v. Kemp. To date, not a single successful challenge has ever

been made to racial bias in sentencing under McCleskey v. Kemp any-

where in the United States.

Charging A head—United States v. Armstrong

If sentencing were the only stage of the criminal justice process in

which racial biases were allowed to flourish, it would be a tragedy of

gargantuan proportions. Thousands of people have had years of their

lives wasted in prison—years they would have been free if they had

been white. Some, like McCleskey, have been killed because of the

influence of race in the death penalty. Sentencing, however, is not the

end, but just the beginning. As we shall see, the legal rules governing

prosecutions, like those that govern sentencing decisions, maximize

rather than minimize racial bias in the drug war. The Supreme Court

has gone to great lengths to ensure that prosecutors are free to exer-

cise their discretion in any manner they choose, and it has closed the

courthouse doors to claims of racial bias.

As discussed in chapter 2, no one has more power in the criminal

justice system than prosecutors. Few rules constrain the exercise of

prosecutorial discretion. The prosecutor is free to dismiss a case for

any reason or no reason at all, regardless of the strength of the evi-

dence. The prosecutor is also free to file more charges against a defen-

dant than can realistically be proven in court, so long as probable cause

arguably exists. Whether a good plea deal is offered to a defendant is

entirely up to the prosecutor. And if the mood strikes, the prosecutor

can transfer drug defendants to the federal system, where the penalties

are far more severe. Juveniles, for their part, can be transferred to adult

court, where they can be sent to adult prison. Angela J. Davis, in her

authoritative study Arbitrary Justice: The Power of the American Pros-

ecutor, observes that “the most remarkable feature of these important,

T H E C O L O R O F J U S T I C E 1 4 5

sometimes life-and- death decisions is that they are totally discretion-

ary and virtually unreviewable.”59 Most prosecutors’ offices lack any

manual or guidebook advising prosecutors how to make discretionary

decisions. Even the American Bar Association’s standards of practice

for prosecutors are purely aspirational; no prosecutor is required to

follow the standards or even consider them.

Christopher Lee Armstrong learned the hard way that the Supreme

Court has little interest in ensuring that prosecutors exercise their

extraordinary discretion in a manner that is fair and nondiscrimi-

natory. He, along with four of his companions, was staying at a Los

Angeles motel in April 1992 when federal and state agents on a joint

drug crime task force raided their room and arrested them on fed-

eral drug charges—conspiracy to distribute more than fifty grams of

crack cocaine. The federal public defenders assigned to Armstrong’s

case were disturbed by the fact that Armstrong and his friends had

something in common with every other crack defendant their office

had represented during the past year: they were all black. In fact, of

the fifty-three crack cases their office had handled over the prior three

years, forty-eight defendants were black, five were Hispanic, and not

a single one was white. Armstrong’s lawyers found it puzzling that no

whites had been charged with crack offenses, given that most crack

users are white. They suspected that whites were being diverted by

federal prosecutors to the state system, where the penalties for crack

offenses were far less severe. The only way to prove this, though,

would be to gain access to the prosecutors’ records and find out just

how many white defendants were transferred to the state system and

why. Armstrong’s lawyers thus filed a motion asking the district court

for discovery of the prosecutors’ files to support their claim of selective

prosecution under the Fourteenth Amendment.

Nearly one hundred years earlier, in a case called Yick Wo v.

Hopkins, the Supreme Court had recognized that racially selec-

tive enforcement violates equal protection of the laws. In that case,

1 4 6 T H E N E W J I M   C R O W

decided in 1886, the Court unanimously overturned convictions of

two Chinese men who were operating laundries without a license.

San Francisco had denied licenses to all Chinese applicants, but grant-

ed licenses to all but one of the non-Chinese laundry operators who

applied. Law enforcement arrested more than a hundred people for

operating laundries without licenses, and every one of the arrestees

was Chinese. Overturning Yick Wo’s conviction, the Supreme Court

declared in a widely quoted passage, “Though the law itself be fair

on its face, and impartial in appearance, yet, if it is applied and

administered by public authority with an evil eye and an unequal

hand, so as practically to make unjust and illegal discriminations,

between persons in similar circumstances . . . the denial of equal

justice is still within the prohibition of the Constitution.”60 Arm-

strong’s lawyers sought to prove that, like the law at issue in Yick Wo,

federal crack laws were fair on their face and impartial in their

appearance, but were selectively enforced in a racially discriminatory

manner.

In support of their claim that Armstrong should, at the very least,

be entitled to discovery, Armstrong’s lawyers offered two sworn affi-

davits. One was from a halfway house intake coordinator who testi-

fied that, in his experience treating crack addicts, whites and blacks

dealt and used the drugs in similar proportions. The other affidavit

was from a defense attorney who had extensive experience in state

prosecutions. He testified that nonblack defendants were routinely

prosecuted in state, rather than federal, court. Arguably the best evi-

dence in support of Armstrong’s claims came from the government,

which submitted a list of more than two thousand people charged

with federal crack cocaine violations over a three-year period, all but

eleven of whom were black. None were white.

The district court ruled that the evidence presented was sufficient to

justify discovery for the purposes of determining whether the allega-

tions of selective enforcement were valid. The prosecutors, however,

T H E C O L O R O F J U S T I C E 1 4 7

refused to release any records and appealed the issue all the way to

the U.S. Supreme Court. In May 1996, the Supreme Court reversed. As

in McCleskey, the Court did not question the accuracy of the evidence

submitted, but ruled that because Armstrong failed to identify any

similarly situated white defendants who should have been charged in

federal court but were not, he was not entitled even to discovery on his

selective- prosecution claim. With no trace of irony, the Court demand-

ed that Armstrong produce in advance the very thing he sought in

discovery: information regarding white defendants who should have

been charged in federal court. That information, of course, was in the

prosecution’s possession and control, which is why Armstrong filed a

discovery motion in the first place.

As a result of the Armstrong decision, defendants who suspect racial

bias on the part of prosecutors are trapped in a classic catch-22. In order

to state a claim of selective prosecution, they are required to offer in

advance the very evidence that generally can be obtained only through

discovery of the prosecutor’s files. The Court justified this insurmount-

able hurdle on the grounds that considerable deference is owed the

exercise of prosecutorial discretion. Unless evidence of conscious,

intentional bias on the part of the prosecutor could be produced, the

Court would not allow any inquiry into the reasons for or causes of

apparent racial disparities in prosecutorial decision making. Again the

courthouse doors were closed, for all practical purposes, to claims of

racial bias in the administration of the criminal justice system.

Immunizing prosecutors from claims of racial bias and failing to

impose any meaningful check on the exercise of their discretion in

charging, plea bargaining, transferring cases, and sentencing has cre-

ated an environment in which conscious and unconscious biases are

allowed to flourish. Numerous studies have shown that prosecutors

interpret and respond to identical criminal activity differently based

on the race of the person charged with the crime.61 One widely cited

study was conducted by the San Jose Mercury News. The study reviewed

1 4 8 T H E N E W J I M   C R O W

seven hundred thousand criminal cases that were matched by crime

and criminal history of the defendant. The analysis revealed that sim-

ilarly situated whites were far more successful than African Ameri-

cans and Latinos in the plea bargaining process; in fact, “at virtually

every stage of pretrial negotiation, whites are more successful than

nonwhites.” 62

The most comprehensive studies of racial bias in the exercise of

prosecutorial and judicial discretion involve the treatment of juve-

niles. These studies have shown that youth of color are more likely

to be arrested, detained, formally charged, transferred to adult court,

and confined to secure residential facilities than their white counter-

parts.63 A report in 2000 observed that among youth who have never

been sent to a juvenile prison before, African Americans were more

than six times as likely as whites to be sentenced to prison for identical

crimes.64 A study sponsored by the U.S. Justice Department and sev-

eral of the nation’s leading foundations, published in 2007, found that

the impact of the biased treatment is magnified with each additional

step into the criminal justice system. African American youth account

for 16 percent of all youth, 28 percent of all juvenile arrests, 35 percent

of the youth waived to adult criminal court, and 58 percent of youth

admitted to state adult prison.65 A major reason for these disparities is

unconscious and conscious racial biases infecting decision making. In

the state of Washington, for example, a review of juvenile sentencing

reports found that prosecutors routinely described black and white

youth differently.66 Blacks committed crimes because of internal per-

sonality flaws such as disrespect. Whites did so because of external

conditions such as family conflict.

The risk that prosecutorial discretion will be racially biased is espe-

cially acute in the drug enforcement context, where virtually iden-

tical behavior is susceptible to a wide variety of interpretations and

responses and the media imagery and political discourse have been

so thoroughly racialized. Whether a kid is perceived as a dangerous

T H E C O L O R O F J U S T I C E 1 4 9

drug- dealing thug or instead is viewed as a good kid who was merely

experimenting with drugs and selling to a few of his friends has to

do with the ways in which information about illegal drug activity is

processed and interpreted, in a social climate in which drug dealing is

racially defined. As a former U.S. attorney explained:

I had an [assistant U.S. attorney who] wanted to drop the

gun charge against the defendant [in a case in which] there

were no extenuating circumstances. I asked, “Why do you

want to drop the gun offense?” And he said, “ ‘He’s a rural

guy and grew up on a farm. The gun he had with him was

a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles,

and it’s not like he was a gun- toting drug dealer.” But he

was a gun- toting drug dealer, exactly.

The decision in Armstrong effectively shields this type of biased

decision making from judicial scrutiny for racial bias. Prosecutors

are well aware that the exercise of their discretion is unchecked, pro-

vided no explicitly racist remarks are made, as it is next to impos-

sible for defendants to prove racial bias. It is difficult to imagine a

system better designed to ensure that racial biases and stereotypes are

given free rein— while at the same time appearing on the surface to be

colorblind—than the one devised by the U.S. Supreme Court.

In Defense of the A ll-W hite Jury—Purkett v. Elm

The rules governing jury selection provide yet another illustration of

the Court’s complete abdication of its responsibility to guarantee racial

minorities equal treatment under the law. In 1985, in Batson v. Kentucky,

the Court held that the Fourteenth Amendment prohibits prosecutors

from discriminating on the basis of race when selecting juries, a rul-

ing hailed as an important safeguard against all-white juries locking

150 T H E N E W J I M   C R O W

up African Americans based on racial biases and stereotypes. Prior

to Batson, prosecutors had been allowed to strike blacks from juries,

provided they did not always strike black jurors. The Supreme Court

had ruled in 1965, in Swain v. Alabama, that an equal-protection claim

would arise only if a defendant could prove that a prosecutor struck

African American jurors in every case, regardless of the crime involved

or regardless of the races of the defendant or the victim.67 Two decades

later, in Batson, the Supreme Court reversed course, a nod to the newly

minted public consensus that explicit race discrimination is an affront

to American values. Almost immediately after Batson was decided, how-

ever, it became readily apparent that prosecutors had no difficulty cir-

cumventing the formal requirement of colorblindness in jury selection

by means of a form of subterfuge the Court would come to accept, if not

endorse.

The history of race discrimination in jury selection dates back to

slavery. Until 1860, no black person had ever sat on a jury in the Unit-

ed States. During the Reconstruction era, African Americans began

to serve on juries in the South for the first time. The all-white jury

promptly returned, however, when Democratic conservatives sought

to “redeem” the South by stripping blacks of their right to vote and

their right to serve on juries. In 1880, the Supreme Court intervened,

striking down a West Virginia statute that expressly reserved jury ser-

vice to white men. Citing the recently enacted Fourteenth Amendment,

the Court declared that the exclusion of blacks from jury service was

“practically a brand upon them, affixed by law, an assertion of their

inferiority, and a stimulant to that race prejudice which is an impedi-

ment to . . . equal justice.” 68 The Court asked, “How can it be main-

tained that compelling a colored man to submit to a trial for his life by

a jury drawn from a panel from which the State has expressly excluded

every man of his race, because of his color alone, however well quali-

fied in other respects, is not a denial to him of equal protection?” 69

For all its bluster, the Court offered no meaningful protection

against jury discrimination in the years that followed. As legal scholar

T H E C O L O R O F J U S T I C E 15 1

Benno Schmidt has observed, from the end of Reconstruction through

the New Deal, “the systematic exclusion of black men from Southern

juries was about as plain as any legal discrimination could be short of

proclamation in state statutes or confession by state officials.” 70 The

Supreme Court repeatedly upheld convictions of black defendants by

all-white juries in situations where exclusion of black jurors was obvi-

ous.71 The only case in which the Court overturned a conviction on the

grounds of discrimination in jury selection was Neal v. Delaware, a case

decided in 1935. State law in Delaware once had explicitly restricted

jury service to white men, and “no colored citizen had ever been sum-

moned as a juror.”72 The Delaware Supreme Court had rejected Neal’s

equal protection claim on the grounds that “the great body of black

men residing in this State are utterly unqualified [for jury service] by

want of intelligence, experience, or moral integrity.”73 The Supreme

Court reversed. Clearly, what offended the U.S. Supreme Court was

not the exclusion of blacks from jury service per se, but rather doing so

openly and explicitly. That orientation continues to hold today.

Notwithstanding Batson’s formal prohibition on race discrimination

in jury selection, the Supreme Court and lower federal courts have

tolerated all but the most egregious examples of racial bias in jury

selection. Miller El v. Cockrell was such a case.74 That case involved

a jury-selection manual that sanctioned race-based selection. The

Court noted that it was unclear whether the official policy of race-

based exclusion was still in effect, but the prosecution did in fact

exclude ten of eleven black jurors, in part by employing an unusual

practice of “jury shuffling” that reduced the number of black jurors.75

The prosecution also engaged in disparate questioning of jurors based

on race—practices that seemed linked to the jury-selection manual.

This was a highly unusual case. In typical cases, there are no official

policies authorizing race discrimination in jury selection still lurking

around, arguably in effect. Normally, the discrimination is obvious

yet unstated, and the systematic exclusion of black jurors continues

largely unabated through use of the peremptory strike.

15 2 T H E N E W J I M   C R O W

Peremptory strikes have long been controversial. Both prosecutors

and defense attorneys are permitted to strike “peremptorily” jurors

they don’t like—that is, people they believe will not respond favor-

ably to the evidence or witnesses they intend to present at trial. In

theory, peremptory strikes may increase the fairness of the proceeding

by eliminating jurors who may be biased but whose biases cannot be

demonstrated convincingly to a judge. In practice, however, peremp-

tory challenges are notoriously discriminatory. Lawyers typically have

little information about potential jurors, so their decisions to strike

individual jurors tend to be based on nothing more than stereotypes,

prejudices, and hunches. Achieving an all-white jury, or nearly all-

white jury, is easy in most jurisdictions, because relatively few racial

minorities are included in the jury pool. Potential jurors are typically

called for service based on the list of registered voters or Department

of Motor Vehicle lists—sources that contain disproportionately fewer

people of color, because people of color are significantly less likely to

own cars or register to vote. Making matters worse, thirty-one states

and the federal government subscribe to the practice of lifetime felon

exclusion from juries. As a result, about 30 percent of black men are

automatically banned from jury service for life.76 Accordingly, no more

than a handful of strikes are necessary in many cases to eliminate

all or nearly all black jurors. The practice of systematically excluding

black jurors has not been halted by Batson; the only thing that has

changed is that prosecutors must come up with a race-neutral excuse

for the strikes—an exceedingly easy task.

In fact, one comprehensive study reviewed all published deci-

sions involving Batson challenges from 1986 to 1992 and concluded

that prosecutors almost never fail to successfully craft acceptable

race-neutral explanations to justify striking black jurors.77 Courts

accept explanations that jurors are too young, too old, too conserva-

tive, too liberal, too comfortable, or too uncomfortable. Clothing is

also a favorite reason; jurors have been stricken for wearing hats or

T H E C O L O R O F J U S T I C E 15 3

sunglasses. Even explanations that might correlate with race, such

as lack of education, unemployment, poverty, being single, living in

the same neighborhood as the defendant, or prior involvement with

the criminal justice system—have all been accepted as perfectly good,

non- pretextual excuses for striking African Americans from juries.

As professor Sheri Lynn Johnson once remarked, “If prosecutors exist

who . . . cannot create a ‘racially neutral’ reason for discriminating on

the basis of race, bar exams are too easy.”78

Given how flagrantly prosecutors were violating Batson’s ban on race

discrimination in jury selection, it was reasonable to hope that, if pre-

sented with a particularly repugnant case, the Supreme Court might be

willing to draw the line at practices that make a mockery of the antidis-

crimination principle. Granted, the Court had been unwilling to accept

statistical proof of race discrimination in sentencing in McCleskey, and

it had brushed off concerns of racial bias in discretionary police stops

in Whren, and it had granted virtual immunity to prosecutors in their

charging decisions in Armstrong, but would it go so far as to allow

prosecutors to offer blatantly absurd, downright laughable excuses for

striking blacks from juries? It turns out the answer was yes.

In Purkett v. Elm, in 1995, the Supreme Court ruled that any race-

neutral reason, no matter how silly, ridiculous, or superstitious, is

enough to satisfy the prosecutor’s burden of showing that a pattern of

striking a particular racial group is not, in fact, based on race. In that

case, the prosecutor offered the following explanation to justify his

strikes of black jurors:

I struck [juror] number twenty-two because of his long

hair. He had long curly hair. He had the longest hair of

anybody on the panel by far. He appeared not to be a good

juror for that fact. . . . Also, he had a mustache and a goa-

tee type beard. And juror number twenty-four also had a

mustache and goatee type beard. . . . And I don’t like the

15 4 T H E N E W J I M   C R O W

way they looked, with the way the hair is cut, both of them.

And the mustaches and the beards look suspicious to me.79

The Court of Appeals for the Eighth Circuit ruled that the foregoing

explanation for the prosecutor’s strikes of black jurors was insufficient

and should have been rejected by the trial court because long hair and

facial hair are not plausibly related to a person’s ability to perform as

a juror. The appellate court explained: “Where the prosecution strikes

a prospective juror who is a member of the defendant’s racial group,

solely on the basis of factors which are facially irrelevant to the ques-

tion of whether that person is qualified to serve as a juror in the par-

ticular case, the prosecution must at least articulate some plausible

race neutral reason for believing that those factors will somehow affect

the person’s ability to perform his or her duties as a juror.”80

The U.S. Supreme Court reversed, holding that when a pattern of

race-based strikes has been identified by the defense, the prosecutor

need not provide “an explanation that is persuasive, or even plausi-

ble.”81 Once the reason is offered, a trial judge may choose to believe

(or disbelieve) any “silly or superstitious” reason offered by prosecu-

tors to explain a pattern of strikes that appear to be based on race.82

The Court sent a clear message that appellate courts are largely free

to accept the reasons offered by a prosecutor for excluding prospec-

tive black jurors—no matter how irrational or absurd the reasons

may seem.

The Occupation—Policing the Enemy

The Court’s blind eye to race discrimination in the criminal justice

system has been especially problematic in policing. Racial bias is most

acute at the point of entry into the system for two reasons: discre-

tion and authorization. Although prosecutors, as a group, have the

greatest power in the criminal justice system, police have the greatest

T H E C O L O R O F J U S T I C E 15 5

discretion— discretion that is amplified in drug-law enforcement. And

unbeknownst to the general public, the Supreme Court has actually

authorized race discrimination in policing, rather than adopting legal

rules banning it.

Racially biased police discretion is key to understanding how the

overwhelming majority of people who get swept into the criminal jus-

tice system in the War on Drugs turn out to be black or brown, even

though the police adamantly deny that they engage in racial profil-

ing. In the drug war, police have discretion regarding whom to target

(which individuals), as well as where to target (which neighborhoods

or communities). As noted earlier, at least 10 percent of Americans vio-

late drug laws every year, and people of all races engage in illegal drug

activity at similar rates. With such an extraordinarily large population

to choose from, decisions must be made regarding who should be tar-

geted and where the drug war should be waged.

From the outset, the drug war could have been waged primarily in

overwhelmingly white suburbs or on college campuses. SWAT teams

could have rappelled from helicopters in gated suburban communities

and raided the homes of high school lacrosse players known for host-

ing coke and ecstasy parties after their games. The police could have

seized televisions, furniture, and cash from fraternity houses based

on an anonymous tip that a few joints or a stash of cocaine could be

found hidden in someone’s dresser drawer. Suburban homemakers

could have been placed under surveillance and subjected to under-

cover operations designed to catch them violating laws regulating the

use and sale of prescription “uppers.” All of this could have happened

as a matter of routine in white communities, but it did not.

Instead, when police go looking for drugs, they look in the ’hood.

Tactics that would be political suicide in an upscale white suburb are

not even newsworthy in poor black and brown communities. So long as

mass drug arrests are concentrated in impoverished urban areas, police

chiefs have little reason to fear a political backlash, no matter how

15 6 T H E N E W J I M   C R O W

aggressive and warlike the efforts may be. And so long as the number of

drug arrests increases or at least remains high, federal dollars continue

to flow in and fill the department’s coffers. As one former prosecutor

put it, “It’s a lot easier to go out to the ’hood, so to speak, and pick

somebody than to put your resources in an undercover [operation in a]

community where there are potentially politically powerful people.”83

The hypersegregation of the black poor in ghetto communities has

made the roundup easy. Confined to ghetto areas and lacking politi-

cal power, the black poor are convenient targets. Douglas Massey and

Nancy Denton’s book, American Apartheid, documents how racially

segregated ghettos were deliberately created by federal policy, not

impersonal market forces or private housing choices.84 The enduring

racial isolation of the ghetto poor has made them uniquely vulnerable

in the War on Drugs. What happens to them does not directly affect—

and is scarcely noticed by—the privileged beyond the ghetto’s invis-

ible walls. Thus it is here, in the poverty-stricken, racially segregated

ghettos, where the War on Poverty has been abandoned and factories

have disappeared, that the drug war has been waged with the greatest

ferocity. SWAT teams are deployed here; buy-and-bust operations are

concentrated here; drug raids of apartment buildings occur here; stop-

and-frisk operations occur on the streets here. Black and brown youth

are the primary targets. It is not uncommon for a young black teenager

living in a ghetto community to be stopped, interrogated, and frisked

numerous times in the course of a month, or even a single week, often by

paramilitary units. Studies of racial profiling typically report the total

number of people stopped and searched, disaggregated by race. These

studies have led some policing experts to conclude that racial profiling

is actually “worse” in white communities, because the racial disparities

in stop and search rates are much greater there. What these studies do

not reveal, however, is the frequency with which any given individual

is likely to be stopped in specific, racially defined neighborhoods.

The militarized nature of law enforcement in ghetto communities

T H E C O L O R O F J U S T I C E 15 7

has inspired rap artists and black youth to refer to the police presence

in black communities as “The Occupation.” In these occupied terri-

tories, many black youth automatically “assume the position” when a

patrol car pulls up, knowing full well that they will be detained and

frisked no matter what. This dynamic often comes as a surprise to

those who have spent little time in ghettos. Craig Futterman, a law

professor at the University of Chicago, reports that his students fre-

quently express shock and dismay when they venture into those com-

munities for the first time and witness the distance between abstract

legal principles and actual practice. One student reported, following

her ride- along with Chicago police: “Each time we drove into a public

housing project and stopped the car, every young black man in the area

would almost reflexively place his hands up against the car and spread

his legs to be searched. And the officers would search them. The offi-

cers would then get back in the car and stop in another project, and this

would happen again. This repeated itself throughout the entire day. I

couldn’t believe it. This was nothing like we learned in law school. But

it just seemed so normal—for the police and the young men.”

Numerous scholars (and many law enforcement officials) attempt to

justify the concentration of drug law enforcement resources in ghetto

communities on the grounds that it is easier for the police to combat

illegal drug activity there. The theory is that black and Latino drug

users are more likely than white users to obtain illegal drugs in public

spaces that are visible to the police, and therefore it is more efficient

and convenient for the police to concentrate their efforts on open-air

drug markets in ghetto communities. Sociologists have been major

proponents of this line of reasoning, pointing out that differential

access to private space influences the likelihood that criminal behav-

ior will be detected. Because poor people lack access to private space

(often sharing small apartments with numerous family members or

relatives), their criminal activity is more likely to be conducted out-

doors. Concentrating law enforcement efforts in locations where drug

15 8 T H E N E W J I M   C R O W

activity will be more easily detected is viewed as a race-neutral orga-

nizational necessity. This argument is often buttressed by claims that

most citizen complaints about illegal drug activity come from ghetto

areas, and that the violence associated with the drug trade occurs in

inner cities. These facts, drug war defenders claim, make the decision

to wage the drug war almost exclusively in poor communities of color

an easy and logical choice.

This line of reasoning is weaker than it initially appears. Many law

enforcement officials acknowledge that the demand for illegal drugs

is so great—and the lack of alternative sources of income so few in

ghetto communities—that “if you take one dealer off the street, he’ll

be replaced within an hour.” Many also admit that a predictable con-

sequence of breaking up one drug ring is a slew of violence as others

fight for control of the previously stabilized market.85 These realities

suggest—if the past two decades of endless war somehow did not—

that the drug war is doomed to fail. They also call into question the

legitimacy of “convenience” as an excuse for the mass imprisonment

of black and brown men in ghetto communities.

Even putting aside such concerns, though, recent research indicates

that the basic assumptions upon which drug war defenses typically

rest are simply wrong. The conventional wisdom—that “get tough”

tactics are a regrettable necessity in poor communities of color and

that efficiency requires the drug war to be waged in the most vulner-

able neighborhoods—turns out to be, as many have long suspected,

nothing more than wartime propaganda, not sound policy.

Unconventional Wisdom

In 2002, a team of researchers at the University of Washington decided

to take the defenses of the drug war seriously by subjecting the argu-

ments to empirical testing in a major study of drug-law enforcement in

a racially mixed city—Seattle.86 The study found that, contrary to the

prevailing “common sense,” the high arrest rates of African Americans

T H E C O L O R O F J U S T I C E 159

in drug-law enforcement could not be explained by rates of offending;

nor could they be explained by other standard excuses, such as the

ease and efficiency of policing open-air drug markets, citizen com-

plaints, crime rates, or drug- related violence. The study also debunked

the assumption that white drug dealers deal indoors, making their

criminal activity more difficult to detect.

The authors found that it was untrue stereotypes about crack mar-

kets, crack dealers, and crack babies—not facts—that were driving

discretionary decision making by the Seattle Police Department. The

facts were as follows: Seattle residents were far more likely to report

suspected narcotics activities in residences—not outdoors—but police

devoted their resources to open-air drug markets and to the one pre-

cinct that was least likely to be identified as the site of suspected drug

activity in citizen complaints. In fact, although hundreds of outdoor

drug transactions were recorded in predominantly white areas of Seat-

tle, police concentrated their drug enforcement efforts in one down-

town drug market where the frequency of drug transactions was much

lower. In racially mixed open-air drug markets, black dealers were

far more likely to be arrested than whites, even though white dealers

were present and visible. And the department focused overwhelming-

ly on crack—the one drug in Seattle more likely to be sold by Afri-

can Americans— despite the fact that local hospital records indicated

that overdose deaths involving heroin were more numerous than all

overdose deaths for crack and powder cocaine combined. Local police

acknowledged that no significant level of violence was associated with

crack in Seattle and that other drugs were causing more hospitaliza-

tions, but steadfastly maintained that their deployment decisions were

nondiscriminatory.

The study’s authors concluded, based on their review and analysis of

the empirical evidence, that the Seattle Police Department’s decisions

to focus so heavily on crack, to the near exclusion of other drugs, and

to concentrate its efforts on outdoor drug markets in downtown areas

rather than drug markets located indoors or in predominantly white

1 6 0 T H E N E W J I M   C R O W

communities, reflect “a racialized conception of the drug problem.”87

As the authors put it: “[The Seattle Police Department’s] focus on black

and Latino individuals and on the drug most strongly associated with

‘blackness’ suggest that law enforcement policies and practices are

predicated on the assumption that the drug problem is, in fact, a black

and Latino one, and that crack, the drug most strongly associated with

urban blacks, is ‘the worst.’”88 This racialized cultural script about

who and what constitutes the drug problem renders illegal drug activ-

ity by whites invisible. “White people,” the study’s authors observed,

“are simply not perceived as drug offenders by Seattle police officers.”89

Hollow Hope

One might imagine that the facts described above would provide

grounds for a lawsuit challenging the Seattle Police Department’s

drug war tactics as a violation of the equal protection clause of the

Fourteenth Amendment and demanding reform. After all, obtaining

reform through the city council or state legislature may seem unlikely,

for black “criminals” are perhaps the most despised minority in the

U.S. population. Few politicians will leap at the opportunity to sup-

port black people labeled criminals. Accordingly, a lawsuit may seem

like the best option. The purpose of our Constitution—especially the

Fourteenth Amendment’s equal-protection guarantee—is to protect

minority rights even when, or especially when, they are unpopular. So

shouldn’t African American defendants be able to file a successful law-

suit demanding an end to these discriminatory practices or challenge

their drug arrests on the grounds that these law enforcement practices

are unlawfully tainted by race? The answer is yes, they should, but no,

they probably can’t.

As legal scholar David Cole has observed, “The Court has imposed

nearly insurmountable barriers to persons challenging race discrimi-

nation at all stages of the criminal justice system.”90 The barriers are

T H E C O L O R O F J U S T I C E 1 6 1

so high that few lawsuits are even filed, notwithstanding shocking and

indefensible racial disparities. Procedural hurdles, such as the “stand-

ing requirement,” have made it virtually impossible to seek reform of

law enforcement agencies through the judicial process, even when the

policies or practices at issue are illegal or plainly discriminatory.

Adolph Lyons’s attempt to ban the use of lethal chokeholds by the

Los Angeles Police Department (LAPD) is a good example. Lyons, a

twenty-four-year-old black man, was driving his car in Los Angeles

one morning when he was pulled over by four police officers for a

burned-out taillight. With guns drawn, police ordered Lyons out of

his car. He obeyed. The officers told him to face the car, spread his legs,

and put his hands on his head. Again, Lyons did as he was told. After

the officers completed a pat-down, Lyons dropped his hands, prompt-

ing an officer to slam Lyons’s hands back on his head. When Lyons

complained that the car keys he was holding were causing him pain,

the officer forced Lyons into a chokehold. He lost consciousness and

collapsed. When he awoke, “he was spitting up blood and dirt, had

urinated and defecated, and had suffered permanent damage to his

larynx.”91 The officers issued a traffic ticket for the burned-out taillight

and released him.

Lyons sued the City of Los Angeles for violation of his constitutional

rights and sought, as a remedy, a ban against future use of the choke-

holds. By the time his case reached the Supreme Court, sixteen people

had been killed by police use of the chokehold, twelve of them black

men. The Supreme Court dismissed the case, however, ruling that

Lyons lacked “standing” to seek an injunction against the deadly prac-

tice. In order to have standing, the Court reasoned, Lyons would have

to show that he was highly likely to be subject to a chokehold again.

Lyons argued that, as a black man, he had good reason to fear he

would be stopped by the police for a minor traffic violation and sub-

jected to a chokehold again. He had done nothing to provoke the choke-

hold; to the contrary, he had obeyed instructions and cooperated fully.

1 6 2 T H E N E W J I M   C R O W

Why wouldn’t he believe he was at risk of being stopped and choked

again? The Court, however, ruled that in order to have standing

Lyons would have had not only to allege that he would

have another encounter with the police but also to make

the incredible assertion either (1) that all police officers in

Los Angeles always choke any citizen with whom they have

an encounter, whether for the purpose of arrest, issuing a

citation or for questioning, or (2) that the City ordered or

authorized the police to act in such a manner.92

Lyons did not allege race discrimination, but if he had, that claim

would almost certainly have been a loser too. The Court’s ruling in

Lyons makes it extremely difficult to challenge systemic race discrimi-

nation in law enforcement and obtain meaningful policy reform. For

example, African Americans in Seattle who hope to end the Seattle

police department’s discriminatory tactics through litigation would be

required to prove that they plan to violate drug laws and that they

will almost certainly face race discrimination by Seattle police officers

engaged in drug-law enforcement, in order to have standing to seek

reform—i.e., just to get in the courthouse door.

It is worthy of note that the Lyons standard does not apply to suits

for damages. But any suggestion that litigants need not worry about

policy reform because they can always sue for damages would be

disingenuous—particularly as applied to race discrimination cases.

Why? Neither the state nor the state police can be sued for damages.

In a series of cases, the Supreme Court has ruled that the state and its

offices are immune from federal suits for damages under the Eleventh

Amendment to the Constitution (unless they consent), and the state

can’t be sued for damages for constitutional violations in state court

either.93 City police departments, like the LAPD, are also typically

off-limits. The Court has ruled that a city police department cannot

T H E C O L O R O F J U S T I C E 1 6 3

be sued for damages unless a specific city policy or custom can be

identified authorizing the illegal practice.94 Most cities, of course, do

not have policies specifically authorizing illegal conduct (particularly

race discrimination), and “custom” is notoriously difficult to prove.

Accordingly, suing a city police department for damages is generally

not an option. Yet even if all of those hurdles can somehow be over-

come, there is still the matter of proving a claim of race discrimination.

As we have seen, to establish an equal-protection violation, one must

prove intentional discrimination—conscious racial bias. Law enforce-

ment officials rarely admit to having acted for racial reasons, leaving

most victims of discriminatory law enforcement without anyone to sue

and without a claim that can be proven in a court of law. But even if a

plaintiff managed to overcome all of the procedural hurdles and prove

that a police officer deliberately exercised his or her discretion on the

basis of race, that still might not be enough.

Race as a Factor

The dirty little secret of policing is that the Supreme Court has actu-

ally granted the police license to discriminate. This fact is not adver-

tised by police departments, because law enforcement officials know

that the public would not respond well to this fact in the era of color-

blindness. It is the sort of thing that is better left unsaid. Civil rights

lawyers—including those litigating racial profiling cases—have been

complicit in this silence, fearing that any acknowledgment that race-

based policing is authorized by law would legitimate in the public

mind the very practice they are hoping to eradicate.

The truth, however, is this: at other stages of the criminal justice

process, the Court has indicated that overt racial bias necessarily trig-

gers strict scrutiny—a concession that has not been costly, as very

few law enforcement officials today are foolish enough to admit bias

openly. But the Supreme Court has indicated that in policing, race can

1 6 4 T H E N E W J I M   C R O W

be used as a factor in discretionary decision making. In United States

v. Brignoni-Ponce, the Court concluded it was permissible under the

equal protection clause of the Fourteenth Amendment for the police to

use race as a factor in making decisions about which motorists to stop

and search. In that case, the Court concluded that the police could

take a person’s Mexican appearance into account when developing

reasonable suspicion that a vehicle may contain undocumented immi-

grants. The Court said that “the likelihood that any person of Mexican

ancestry is an alien is high enough to make Mexican appearance a

relevant factor.”95 Some commentators have argued that Brignoni-Ponce

may be limited to the immigration context; the Court might not apply

the same principle to drug-law enforcement. It is not obvious what the

rational basis would be for limiting overt race discrimination by police

to immigration. The likelihood that a person of Mexican ancestry is an

“alien” could not be significantly higher than the likelihood that any

random black person is a “drug criminal.”

The Court’s quiet blessing of race-based traffic stops has led to

something of an Orwellian public discourse regarding racial profiling.

Police departments and highway patrol agencies frequently declare,

“We do not engage in racial profiling,” even though their officers rou-

tinely use race as a factor when making decisions regarding whom to

stop and search. The justification for the implicit doublespeak—“we

do not racial-profile; we just stop people based on race”—can be

explained in part by the Supreme Court’s jurisprudence. Because the

Supreme Court has authorized the police to use race as a factor when

making decisions regarding whom to stop and search, police depart-

ments believe that racial profiling exists only when race is the sole

factor. Thus, if race is one factor but not the only factor, then it doesn’t

really count as a factor at all.

The absurdity of this logic is evidenced by the fact that police almost

never claim to stop anyone solely because of race. A young black male

wearing baggy pants, standing in front of his high school surrounded

T H E C O L O R O F J U S T I C E 1 6 5

by a group of similarly dressed black friends, may be stopped and

searched because police believe he “looks like” a drug dealer. The

police can easily argue, if challenged, that non- racial factors – such

as gender, age, attire and location – played a role in their assessment.

The problem, of course, is that whether or not race is the sole reason

for a stop or search, it is frequently a determinative reason. A young

white male wearing baggy pants, standing in front of his high school

and surrounded by his friends, might well be ignored by police offi-

cers. It might never occur to them that a group of young white kids

might be dealing dope in front of their high school. Similarly situ-

ated people inevitably are treated differently when police are granted

permission to rely on racial stereotypes when making discretionary

decisions.

Equally important, though, the sole- factor test ignores the ways in

which seemingly race- neutral factors—such as location— operate in a

highly discriminatory fashion. Some law enforcement officials claim

that they would stop and search white kids wearing baggy jeans in the

ghetto (that would be suspicious)—it just so happens they’re rarely

there. Subjecting people to stops and searches because they live in

“high crime” ghettos cannot be said to be truly race- neutral, given

that the ghetto itself was constructed to contain and control groups of

people defined by race.96 Even seemingly race-neutral factors such as

“prior criminal history” are not truly race-neutral. A black kid arrest-

ed twice for possession of marijuana may be no more of a “repeat

offender” than a white frat boy who regularly smokes pot in his dorm

room. But because of his race and his confinement to a racially segre-

gated ghetto, the black kid has a criminal record, while the white frat

boy, because of his race and relative privilege, does not. Thus, when

prosecutors throw the book at black youth who have multiple arrests

or convictions, or when police stalk people with criminal records and

subject them to regular frisks and searches on the grounds that it

makes sense to “watch criminals closely,” they are often exacerbating

1 6 6 T H E N E W J I M   C R O W

racial disparities created by the discretionary decision to wage the

War on Drugs almost exclusively in poor communities of color.

Defending against claims of racial bias in policing is easy. Because

police officers never offer race as the only reason for a stop or search,

any police officer, even the most racist, will be able to cite multiple

nonracial reasons for initiating an encounter, including any number

of the so-called “indicators” of drug trafficking discussed in chapter 2,

such as appearing too nervous or too calm. Police officers (like pros-

ecutors) are highly adept at offering race-neutral reasons for actions

that consistently disadvantage African Americans. Whereas prosecu-

tors claim they strike black jurors not because of their race but because

of their hairstyle, police officers have their own stock excuses—e.g.,

“Your honor, we didn’t stop him because he’s black; we stopped him

because he failed to use his turn signal at the right time,” or “It wasn’t

just because he was black; it was also because he seemed nervous when

he saw the police car.” Judges are just as reluctant to second-guess an

officer’s motives as they are to second-guess prosecutors’. So long as

officers refrain from uttering racial epithets and so long as they show

the good sense not to say “the only reason I stopped him was ’cause

he’s black,” courts generally turn a blind eye to patterns of discrimina-

tion by the police.

Studies of racial profiling have shown that police do, in fact, exercise

their discretion regarding whom to stop and search in the drug war in

a highly discriminatory manner.97 Not only do police discriminate in

their determinations regarding where to wage the war, but they also

discriminate in their judgments regarding whom to target outside of

the ghetto’s invisible walls.

The most famous of these studies were conducted in New Jersey

and Maryland in the 1990s. Allegations of racial profiling in federally

funded drug interdiction operations resulted in numerous investiga-

tions and comprehensive data demonstrating a dramatic pattern of

racial bias in highway patrol stops and searches. These drug interdic-

T H E C O L O R O F J U S T I C E 1 6 7

tion programs were the brainchild of the DEA, part of the federally

funded program known as Operation Pipeline.

In New Jersey, the data showed that only 15 percent of all drivers

on the New Jersey Turnpike were racial minorities, yet 42 percent of

all stops and 73 percent of all arrests were of black motorists— despite

the fact that blacks and whites violated traffic laws at almost exactly

the same rate. While radar stops were relatively consistent with the

percentage of minority violators, discretionary stops made by offi-

cers involved in drug interdiction resulted in double the number of

stops of minorities.98 A subsequent study conducted by the attorney

general of New Jersey found that searches on the turnpike were even

more discriminatory than the initial stops—77 percent of all consent

searches were of minorities. The Maryland studies produced similar

results: African Americans comprised only 17 percent of drivers along

a stretch of I-95 outside of Baltimore, yet they were 70 percent of those

who were stopped and searched. Only 21 percent of all drivers along

that stretch of highway were racial minorities (Latinos, Asians, and

African Americans), yet those groups comprised nearly 80 percent of

those pulled over and searched.99

What most surprised many analysts was that, in both studies,

whites were actually more likely than people of color to be carrying

illegal drugs or contraband in their vehicles. In fact, in New Jersey,

whites were almost twice as likely to be found with illegal drugs or

contraband as African Americans, and five times as likely to be found

with contraband as Latinos.100 Although whites were more likely to

be guilty of carrying drugs, they were far less likely to be viewed as

suspicious, resulting in relatively few stops, searches, and arrests of

whites. The former New Jersey attorney general dubbed this phenome-

non the “circular illogic of racial profiling.” Law enforcement officials,

he explained, often point to the racial composition of our prisons and

jails as a justification for targeting racial minorities, but the empirical

evidence actually suggested the opposite conclusion was warranted.

1 6 8 T H E N E W J I M   C R O W

The disproportionate imprisonment of people of color was, in part, a

product of racial profiling—not a justification for it.

In the years following the release of the New Jersey and Maryland

data, dozens of other studies of racial profiling have been conducted.

A brief sampling:

• In Volusia County, Florida, a reporter obtained 148 hours of

video footage documenting more than 1,000 highway stops

conducted by state troopers. Only 5 percent of the drivers

on the road were African American or Latino, but more than

80 percent of the people stopped and searched were minori-

ties.101

• In Illinois, the state police initiated a drug interdiction pro-

gram known as Operation Valkyrie that targeted Latino mo-

torists. While Latinos comprised less than 8 percent of the

Illinois population and took fewer than 3 percent of the per-

sonal vehicle trips in Illinois, they comprised approximately

30 percent of the motorists stopped by drug interdiction offi-

cers for discretionary offenses, such as failure to signal a lane

change.102 Latinos, however, were significantly less likely

than whites to have illegal contraband in their vehicles.

• A racial profiling study in Oakland, California, in 2001

showed that African Americans were approximately twice as

likely as whites to be stopped, and three times as likely to be

searched.103

Pedestrian stops, too, have been the subject of study and contro-

versy. The New York Police Department released statistics in Febru-

ary 2007 showing that during the prior year its officers stopped an

astounding 508,540 people—an average of 1,393 per day—who were

walking down the street, perhaps on their way to the subway, grocery

store, or bus stop. Often the stops included searches for illegal drugs or

T H E C O L O R O F J U S T I C E 1 6 9

guns— searches that frequently required people to lie face down on the

pavement or stand spread- eagled against a wall while police officers

aggressively groped all over their bodies while bystanders watched or

walked by. The vast majority of those stopped and searched were racial

minorities, and more than half were African American.104

The NYPD began collecting data on pedestrian stops following the

shooting of Amadou Diallo, an African immigrant who died in a hail

of police bullets on the front steps of his own home in February 1999.

Diallo was followed to his apartment building by four white police

officers—members of the elite Street Crime Unit—who viewed him as

suspicious and wanted to interrogate him. They ordered him to stop, but,

according to the officers, Diallo did not respond immediately. He walked

a bit farther to his apartment building, opened the door, and retrieved his

wallet—probably to produce identification. The officers said they thought

the wallet was a gun, and fired forty-one times. Amadou Diallo died at

the age of twenty-two. He was unarmed and had no criminal record.

Diallo’s murder sparked huge protests, resulting in a series of stud-

ies commissioned by the attorney general of New York. The first study

found that African Americans were stopped six times more frequently

than whites, and that stops of African Americans were less likely to

result in arrests than stops of whites—presumably because blacks were

less likely to be found with drugs or other contraband.105 Although the

NYPD attempted to justify the stops on the grounds that they were

designed to get guns off the street, stops by the Street Crime Unit—the

group of officers who supposedly are specially trained to identify gun-

toting thugs—yielded a weapon in only 2.5 percent of all stops.106

Rather than reducing reliance on stop-and-frisk tactics following the

Diallo shooting and the release of this disturbing data, the NYPD dra-

matically increased its number of pedestrian stops and continued to

stop and frisk African Americans at grossly disproportionate rates. The

NYPD stopped five times more people in 2005 than in 2002—the over-

whelming majority of whom were African American or Latino.107 By

1 7 0 T H E N E W J I M   C R O W

2008, the NYPD was stopping 545,000 in a single year, and 80 percent

of the people stopped were African Americans and Latinos. Whites

comprised a mere 8 percent of people frisked by the NYPD, while Afri-

can Americans accounted for 85 percent of all frisks.108 A report by The

New York Times found that the highest concentration of stops in the

city was a roughly eight-block area of Brownsville, Brooklyn, that was

predominately black. Residents there were stopped at a rate thirteen

times the city average.109

Although the NYPD frequently attempts to justify stop-and-frisk

operations in poor communities of color on the grounds that such tac-

tics are necessary to get guns off the streets, less than 1 percent of stops

(0.15 percent) resulted in guns being found, and guns and other con-

traband were seized less often in stops of African Americans and Lati-

nos than of whites.110 As Darius Charney, a lawyer for the Center for

Constitutional Rights, observed, these studies “confirm what we have

been saying for the last 10 or 11 years, which is that with stop-and-

frisk patterns—it is really race, not crime, that is driving this.”111

Ultimately, these stop-and-frisk operations amount to much more

than humiliating, demeaning rituals for young men of color, who must

raise their arms and spread their legs, always careful not to make a

sudden move or gesture that could provide an excuse for brutal—even

lethal—force. Like the days when black men were expected to step

off the sidewalk and cast their eyes downward when a white woman

passed, young black men know the drill when they see the police cross-

ing the street toward them; it is a ritual of dominance and submission

played out hundreds of thousands of times each year. But it is more

than that. These routine encounters often serve as the gateway into the

criminal justice system. The NYPD made 50,300 marijuana arrests in

2010 alone, mostly of young men of color. As one report noted, these

marijuana arrests offer “training opportunities” for rookie police who

can practice on ghetto kids while earning overtime.112 These arrests

serve another purpose as well: they “are the most effective way for the

T H E C O L O R O F J U S T I C E 1 7 1

NYPD to collect fingerprints, photographs and other information on

young people not yet entered into the criminal databases.”113 A simple

arrest for marijuana possession can show up on criminal databases as

“a drug arrest” without specifying the substance or the charge, and

without clarifying even whether the person was convicted. These data-

bases are then used by police and prosecutors, as well as by employers

and housing officials—an electronic record that will haunt many for

life. More than 353,000 people were arrested and jailed by the NYPD

between 1997 and 2006 for simple possession of small amounts of mar-

ijuana, with blacks five times more likely to be arrested than whites.114

In Los Angeles, mass stops of young African American men and boys

resulted in the creation of a database containing the names, addresses,

and other biographical information of the overwhelming majority of

young black men in the entire city. The LAPD justified its database as

a tool for tracking gang or “gang-related” activity. However, the crite-

rion for inclusion in the database is notoriously vague and discrimina-

tory. Having a relative or friend in a gang and wearing baggy jeans is

enough to put youth on what the ACLU calls a Black List. In Denver,

displaying any two of a list of attributes—including slang, “clothing of

a particular color,” pagers, hairstyles, or jewelry—earns youth a spot

in the Denver Police’s gang database. In 1992, citizen activism led to an

investigation, which revealed that eight out of every ten people of color

in the entire city were on the list of criminal suspects.115

The End of an Era

The litigation that swept the nation in the 1990s challenging racial

profiling practices has nearly vanished. The news stories about people

being stopped and searched on their way to church or work or school

have faded from the evening news. This is not because the problem

has been solved or because the experience of being stopped, interro-

gated, and searched on the basis of race has become less humiliating,

1 7 2 T H E N E W J I M   C R O W

alienating, or demoralizing as time has gone by. The lawsuits have

disappeared because, in a little noticed case called Alexander v. San-

doval, decided in 2001, the Supreme Court eliminated the last remain-

ing avenue available for challenging racial bias in the criminal justice

system.116

Sandoval was not, on its face, even about criminal justice. It was a

case challenging the Alabama Department of Public Safety’s decision

to administer state driver’s license examinations only in English. The

plaintiffs argued that the department’s policy violated Title VI of the

Civil Rights Act of 1964 and its implementing regulations, because

the policy had the effect of subjecting non-English speakers to dis-

crimination based on their national origin. The Supreme Court did not

reach the merits of the case, ruling instead that the plaintiffs lacked

the legal right even to file the lawsuit. It concluded that Title VI does

not provide a “private right of action” to ordinary citizens and civil

rights groups; meaning that victims of discrimination can no longer

sue under the law.

The Sandoval decision virtually wiped out racial profiling litiga-

tion nationwide. Nearly all of the cases alleging racial profiling in

drug-law enforcement were brought pursuant to Title VI of the Civil

Rights Act of 1964 and its implementing regulations. Title VI prohib-

its federally funded programs or activities from discriminating on the

basis of race, and the regulations employ a “disparate impact test” for

discrimination—meaning that plaintiffs could prevail in claims of

race discrimination without proving discriminatory intent. Under the

regulations, a federally funded law enforcement program or activity is

unlawful if it has a racially discriminatory impact and if that impact

cannot be justified by law enforcement necessity. Because nearly all

law enforcement agencies receive federal funding in the drug war,

and because drug war tactics—such as pretext stops and consent

searches—have a grossly discriminatory impact and are largely inef-

T H E C O L O R O F J U S T I C E 1 7 3

fective, plaintiffs were able to argue persuasively that the tactics could

not be justified by law enforcement necessity.

In 1999, for example, the ACLU of Northern California filed a class

action lawsuit against the California Highway Patrol (CHP), alleging

that its highway drug interdiction program violated Title VI of the Civil

Rights Act because it relied heavily on discretionary pretext stops and

consent searches that are employed overwhelmingly against African

American and Latino motorists. During the course of the litigation,

the CHP produced data that showed African Americans were twice as

likely, and Latinos three times as likely, to be stopped and searched

by its officers as were whites. The data further showed that consent

searches were ineffective; only a tiny percentage of the discriminatory

searches resulted in the discovery of drugs or other contraband, yet

thousands of black and brown motorists were subjected to baseless

interrogations, searches, and seizures as a result of having committed

a minor traffic violation. The CHP entered into a consent decree that

provided for a three-year moratorium on consent searches and pre-

text stops statewide and the collection of comprehensive data on the

race and ethnicity of motorists stopped and searched by the police, so

that it would be possible to determine whether discriminatory prac-

tices were continuing. Similar results were obtained in New Jersey, as

a result of landmark litigation filed against the New Jersey State Police.

After Sandoval, these cases can no longer be brought under Title VI

by private litigants. Only the federal government can sue to enforce

Title VI’s antidiscrimination provisions— something it has neither the

inclination nor the capacity to do in most racial profiling cases due to

its limited resources and institutional reluctance to antagonize local

law enforcement. Since the War on Drugs, private litigants represented

by organizations such as the ACLU have been at the forefront of racial

profiling litigation. Those days, however, have come to an end. The

racial profiling cases that swept the nation in the 1990s may well be

1 74 T H E N E W J I M   C R O W

the last wave of litigation challenging racial bias in the criminal justice

system that we see for a very long time.

The Supreme Court has now closed the courthouse doors to claims

of racial bias at every stage of the criminal justice process, from stops

and searches to plea bargaining and sentencing. The system of mass

incarceration is now, for all practical purposes, thoroughly immunized

from claims of racial bias. Staggering racial disparities in the drug war

continue but rarely make the news. One recent development that did

make news was President Obama’s decision to sign legislation reduc-

ing the hundred-to-one disparity in sentencing for crack versus pow-

der cocaine to eighteen to one, a small step in the right direction.117

Under the new law, it takes 28 grams of crack cocaine to net a five-year

mandatory minimum sentence, while it still takes selling 500 grams

of powdered cocaine to net the same sentence. There should be no

disparity—the ratio should be one-to-one. But that disparity is just the

tip of the iceberg. As noted in chapter 2, this system depends primar-

ily on the prison label, not prison time. What matters most is who gets

swept into this system of control and then ushered into an undercaste.

The legal rules adopted by the Supreme Court guarantee that those

who find themselves locked up and permanently locked out due to the

drug war are overwhelmingly black and brown.

A heavy and cruel hand has been laid upon us. As a people, we feel our-

selves to be not only deeply injured, but grossly misunderstood. Our

white countrymen do not know us. They are strangers to our charac-

ter, ignorant of our capacity, oblivious to our history and progress, and

are misinformed as to the principles and ideas that control and guide

us, as a people. The great mass of American citizens estimates us as

being a characterless and purposeless people; and hence we hold up

our heads, if at all, against the withering influence of a nation’s scorn

and contempt.1

—Frederick Douglass, in a statement on behalf of delegates to the

National Colored Convention held in Rochester, New York, in July

1853

When Frederick Douglass and the other delegates to the National Colored Convention converged in Rochester, New York, in the
summer of 1853 to discuss the condition, status, and future of “coloreds”

(as they were called then), they decried the stigma of race—the condem-

nation and scorn heaped upon them for no reason other than the color

of their skin. Most of the delegates were freed slaves, though the young-

er ones may have been born free. Northern emancipation was complete,

4
T he C r ue l   H a n d

1 7 6 T H E N E W J I M   C R O W

but freedom remained elusive. Blacks were finally free from the formal

control of their owners, but they were not full citizens—they could not

vote, they were subject to legal discrimination, and at any moment,

Southern plantation owners could capture them on the street and whisk

them back to slavery. Although Northern slavery had been abolished,

every black person was still presumed a slave—by law—and could not

testify or introduce evidence in court. Thus if a Southern plantation

owner said you were a slave, you were—unless a white person inter-

ceded in a court of law on your behalf and testified that you were right-

fully free. Slavery may have died, but for thousands of blacks, the badge

of slavery lived on.

Today a criminal freed from prison has scarcely more rights,

and arguably less respect, than a freed slave or a black person liv-

ing “free” in Mississippi at the height of Jim Crow. Those released

from prison on parole can be stopped and searched by the police

for any reason—or no reason at all—and returned to prison for the

most minor of infractions, such as failing to attend a meeting with a

parole officer. Even when released from the system’s formal control,

the stigma of criminality lingers. Police supervision, monitoring, and

harassment are facts of life not only for all those labeled criminals,

but for all those who “look like” criminals. Lynch mobs may be long

gone, but the threat of police violence is ever present. A wrong move

or sudden gesture could mean massive retaliation by the police. A

wallet could be mistaken for a gun. The “whites only” signs may be

gone, but new signs have gone up—notices placed in job applica-

tions, rental agreements, loan applications, forms for welfare ben-

efits, school applications, and petitions for licenses, informing the

general public that “felons” are not wanted here. A criminal record

today authorizes precisely the forms of discrimination we supposed-

ly left behind—discrimination in employment, housing, education,

public benefits, and jury service. Those labeled criminals can even be

denied the right to vote.

Criminals, it turns out, are the one social group in America we

T H E C R U E L   H A N D 1 7 7

have permission to hate. In “colorblind” America, criminals are the

new whipping boys. They are entitled to no respect and little mor-

al concern. Like the “coloreds” in the years following emancipation,

criminals today are deemed a characterless and purposeless people,

deserving of our collective scorn and contempt. When we say someone

was “treated like a criminal,” what we mean to say is that he or she

was treated as less than human, like a shameful creature. Hundreds of

years ago, our nation put those considered less than human in shack-

les; less than one hundred years ago, we relegated them to the other

side of town; today we put them in cages. Once released, they find that

a heavy and cruel hand has been laid upon them.

Brave New World

One might imagine that a criminal defendant, when brought before the

judge—or when meeting with his attorney for the first time—would

be told of the consequences of a guilty plea or conviction. He would be

told that, if he pleads guilty to a felony, he will be deemed “unfit” for

jury service and automatically excluded from juries for the rest of his

life.2 He would also be told that he could be denied the right to vote.

In a country that preaches the virtues of democracy, one could rea-

sonably assume that being stripped of basic political rights would be

treated by judges and court personnel as a serious matter indeed. Not

so. When a defendant pleads guilty to a minor drug offense, nobody

will likely tell him that he may be permanently forfeiting his right to

vote as well as his right to serve on a jury—two of the most fundamen-

tal rights in any modern democracy.

He will also be told little or nothing about the parallel universe he

is about to enter, one that promises a form of punishment that is often

more difficult to bear than prison time: a lifetime of shame, contempt,

scorn, and exclusion. In this hidden world, discrimination is per-

fectly legal. As Jeremy Travis has observed, “In this brave new world,

punishment for the original offense is no longer enough; one’s debt to

1 7 8 T H E N E W J I M   C R O W

society is never paid.”3 Other commentators liken the prison label to

“the mark of Cain” and characterize the perpetual nature of the sanc-

tion as “internal exile.” 4 Myriad laws, rules, and regulations operate

to discriminate against people with criminal records and effectively

prevent their reintegration into the mainstream society and economy.

These restrictions amount to a form of “civic death” and send the

unequivocal message that “they” are no longer part of “us.”

Once labeled a felon, the badge of inferiority remains with you for

the rest of your life, relegating you to a permanent second-class status.

Consider, for example, the harsh reality facing someone who pleads

guilty to a first-time offense, felony possession of marijuana. Even if

the defendant manages to avoid prison time by accepting a “generous”

plea deal, he may discover that the punishment that awaits him outside

the courthouse doors is far more severe and debilitating than what he

might have encountered in prison. A task force of the American Bar

Association described the bleak reality facing someone convicted of a

petty drug offense this way:

[The] offender may be sentenced to a term of probation,

community service, and court costs. Unbeknownst to this

offender, and perhaps any other actor in the sentencing

process, as a result of his conviction he may be ineligible

for many federally-funded health and welfare benefits, food

stamps, public housing, and federal educational assistance.

His driver’s license may be automatically suspended, and

he may no longer qualify for certain employment and pro-

fessional licenses. If he is convicted of another crime he

may be subject to imprisonment as a repeat offender. He

will not be permitted to enlist in the military, or possess a

firearm, or obtain a federal security clearance. If a citizen,

he may lose the right to vote; if not, he becomes immedi-

ately deportable.5

T H E C R U E L   H A N D 1 7 9

Despite the brutal, debilitating impact of these “collateral conse-

quences” on the lives of those convicted of crimes, courts have gener-

ally declined to find that such sanctions are actually “punishment” for

constitutional purposes. As a result, judges are not required to inform

criminal defendants of some of the most important rights they are

forfeiting when they plead guilty to a felony. In fact, judges, prosecu-

tors, and defense attorneys may not even be aware of the full range of

collateral consequences for a felony conviction. Yet these civil penal-

ties, although not considered punishment by our courts, often make it

virtually impossible for people who have been convicted of crimes to

integrate into the mainstream society and economy upon release. Far

from collateral, these sanctions can be the most damaging and painful

aspect of a criminal conviction. Collectively, these sanctions send the

strong message that, now that you have been labeled, you are no longer

wanted. You are no longer part of “us,” the deserving. Unable to drive,

get a job, find housing, or even qualify for public benefits, many people

with criminal records lose their children, their dignity, and eventually

their freedom— landing back in jail after failing to play by rules that

seem hopelessly stacked against them.

The churning of African Americans in and out of prisons today is

hardly surprising, given the strong message that is sent to them that

they are not wanted in mainstream society. In Frederick Douglass’s

words, “Men are so constituted that they derive their conviction of

their own possibilities largely from the estimate formed of them by

others. If nothing is expected of a people, that people will find it dif-

ficult to contradict that expectation.” 6 More than a hundred years later,

a similar argument was made by a woman contemplating her eventual

release into a society that had constructed a brand-new legal regime

designed to keep her locked out, fifty years after the demise of Jim

Crow. “Right now I’m in prison,” she said. “Like society kicked me

out. They’re like, ‘Okay, the criminal element, we don’t want them in

society, we’re going to put them in prisons.’ Okay, but once I get out,

1 8 0 T H E N E W J I M   C R O W

then what do you do? What do you do with all these millions of people

that have been in prison and been released? I mean, do you accept

them back? Or do you keep them as outcasts? And if you keep them as

outcasts, how do you expect them to act?”7

Remarkably, the overwhelming majority of people branded crimi-

nals and felons struggle mightily to play by the rules and to succeed in

a society seemingly hell-bent on excluding them. Like their forbears,

they do their best to survive, even thrive—against all odds.

No Place Like Home

The first question on the minds of many people released from prison

as they take their first steps outside the prison gates is where will they

sleep that night. Some have families eagerly awaiting them—families

who are willing to let their newly released relative sleep on the couch,

floor, or extra bed indefinitely. Most, however, desperately need to find

a place to live—if not immediately, at least soon. After several days,

weeks, or months of sleeping in your aunt’s basement or on a friend’s

couch, a time comes when you are expected to fend for yourself. Figur-

ing out how, exactly, to do that is no easy task, however, when your fel-

ony record operates to bar you from any public housing assistance. As

one young man with a felony conviction explained in exasperation, “I

asked for an application for Section 8. They asked me if I had a felony.

I said, ‘yes.’ . . . They said, ‘Well, then, this application isn’t for you.’”8

This young man had just hit his first brick wall coming out of pris-

on. Housing discrimination against people branded felons (as well as

suspected “criminals”) is perfectly legal. During Jim Crow, it was legal

to deny housing on the basis of race, through restrictive covenants

and other exclusionary practices. Today, discrimination against people

with criminal records and their families is routine among public and

private landlords alike. Rather than racially restrictive covenants, we

have restrictive lease agreements, barring the new “undesirables.”

T H E C R U E L   H A N D 1 8 1

The Anti-Drug Abuse Act of 1988, passed by Congress as part of the

War on Drugs, called for strict lease enforcement and eviction of pub-

lic housing tenants who engage in criminal activity. The act granted

public housing agencies the authority to use leases to evict any ten-

ant, household member, or guest engaged in any criminal activity on

or near public housing premises. In 1996, President Clinton, in an

effort to bolster his “tough on crime” credentials, declared that public

housing agencies should exercise no discretion when a tenant or guest

engages in criminal activity, particularly if it is drug- related. In his

1996 State of the Union address, he proposed “One Strike and You’re

Out” legislation, which strengthened eviction rules and strongly urged

that people with drug convictions be automatically excluded from

public housing based on their criminal records. He later declared, “If

you break the law, you no longer have a home in public housing, one

strike and you’re out. That should be the law everywhere in Ameri-

ca.”9 In its final form, the act, together with the Quality Housing and

Work Responsibility Act of 1998, not only authorized public hous-

ing agencies to exclude automatically (and evict) people with drug

convictions and felonies; it also allowed agencies to bar applicants

believed to be using illegal drugs or abusing alcohol—whether or not

they had been convicted of a crime. These decisions can be appealed,

but appeals are rarely successful without an attorney—a luxury most

public housing applicants cannot afford.

In response to the new legislation and prodding by President Clin-

ton, the Housing and Urban Development Department (HUD) devel-

oped guidelines to press public housing agencies to “evict drug dealers

and other criminals” and “screen tenants for criminal records.”10 HUD’s

“One Strike Guide” calls on housing agencies to “take full advantage of

their authority to use stringent screening and eviction procedures.” It

also encourages housing authorities not only to screen all applicants’

criminal records, but to develop their own exclusion criteria. The

guide notes that agency ratings and funding are tied to whether they

1 8 2 T H E N E W J I M   C R O W

are “adopting and implementing effective applicant screening,” a clear

signal that agencies may be penalized for not cleaning house.11

Throughout the United States, public housing agencies have adopted

exclusionary policies that deny eligibility to applicants even with the

most minor criminal backgrounds. The crackdown inspired by the

War on Drugs has resulted in unprecedented punitiveness, as housing

officials began exercising their discretion to deny poor people access

to public housing for virtually any crime. “Just about any offense will

do, even if it bears scant relation to the likelihood the applicant will

be a good tenant.”12

The consequences for real families can be devastating. Without

housing, people can lose their children. Take for example, the forty-

two-year-old African American man who applied for public housing

for himself and his three children who were living with him at the

time.13 He was denied because of an earlier drug possession charge for

which he had pleaded guilty and served thirty days in jail. Of course,

the odds that he would have been convicted of drug possession would

have been extremely low if he were white. But as an African American,

he was not only targeted by the drug war but then denied access to

housing because of his conviction. Since being denied housing, he has

lost custody of his children and is homeless. Many nights he sleeps

outside on the streets. Stiff punishment, indeed, for a minor drug

offense—especially for his children, who are innocent of any crime.

Remarkably, under current law, an actual conviction or finding of

a formal violation is not necessary to trigger exclusion. Public hous-

ing officials are free to reject applicants simply on the basis of arrests,

regardless of whether they result in convictions or fines. Because Afri-

can Americans and Latinos are targeted by police in the War on Drugs,

it is far more likely that they will be arrested for minor, nonviolent

crimes. Accordingly, HUD policies excluding people from housing

assistance based on arrests as well as convictions guarantee highly

discriminatory results.

T H E C R U E L   H A N D 1 8 3

Perhaps no aspect of the HUD regulatory regime has been as con-

troversial, however, as the “no- fault” clause contained in every public

housing lease. Public housing tenants are required to do far more than

simply pay their rent on time, keep the noise down, and make sure

their homes are kept in good condition. The “One Strike and You’re

Out” policy requires every public housing lease to stipulate that if the

tenant, or any member of the tenant’s household, or any guest of the

tenant, engages in any drug- related or other criminal activity on or off

the premises, the tenancy will be terminated. Prior to the adoption

of this policy, it was generally understood that a tenant could not be

evicted unless he or she had some knowledge of or participation in

alleged criminal activity. Accordingly, in Rucker v. Davis, the Ninth

Circuit Court of Appeals struck down the “no- fault” clause, on the

grounds that the eviction of innocent tenants—who were not accused

or even aware of the alleged criminal activity—was inconsistent with

the legislative scheme.14

The U.S. Supreme Court reversed.15 The Court ruled in 2002 that,

under federal law, public housing tenants can be evicted regardless

of whether they had knowledge of or participated in alleged criminal

activity. According to the Court, William Lee and Barbara Hill were

rightfully evicted after their grandsons were charged with smoking

marijuana in a parking lot near their apartments. Herman Walker

was properly evicted as well, after police found cocaine on his care-

giver. And Perlie Rucker was rightly evicted following the arrest of

her daughter for possession of cocaine a few blocks from home. The

Court ruled these tenants could be held civilly liable for the nonviolent

behavior of their children and caregivers. They could be tossed out of

public housing due to no fault of their own.

In the abstract, policies barring or evicting people who are somehow

associated with criminal activity may seem like a reasonable approach

to dealing with crime in public housing, particularly when crime has

gotten out of control. Desperate times call for desperate measures, it is

1 8 4 T H E N E W J I M   C R O W

often said. The problem, however, is twofold: these vulnerable families

have nowhere to go, and the impact is inevitably discriminatory. People

who are not poor and who are not dependent upon public assistance for

housing need not fear that, if their son, daughter, caregiver, or relative

is caught with some marijuana at school or shoplifts from a drugstore,

they will find themselves suddenly evicted—homeless. But for count-

less poor people—particularly racial minorities who disproportionate-

ly rely on public assistance—that possibility looms large. As a result,

many families are reluctant to allow their relatives—particularly

those who are recently released from prison—to stay with them, even

temporarily.

No one knows exactly how many people are excluded from public

housing because of criminal records, or even the number of people with

criminal records who would be ineligible if they applied. There is no

national data available. We do know, however, that roughly 65 million

people have criminal records, including tens of millions of Americans

who have been arrested but never convicted of any offense, or convict-

ed only of minor misdemeanors, and they too are routinely excluded

from public housing. What happens to these people denied housing

assistance or evicted from their homes? Where do they go? Thousands

of them become homeless. A study conducted by the McCormick Insti-

tute of Public Affairs found that nearly a quarter of guests in homeless

shelters had been incarcerated within the previous year—people who

were unable to find somewhere to live after release from prison walls.

Similarly, a California study reported that an estimated 30 to 50 per-

cent of individuals under parole supervision in San Francisco and

Los Angeles were homeless.16 Access to decent, stable, and affordable

housing is a basic human right, and it also increases substantially the

likelihood a person with a past criminal record will obtain and retain

employment and remain drug- and crime-free. Research conducted

by the Corporation for Supportive Housing in New York State shows

that the use of state prisons and city jails dropped by 74 percent and

T H E C R U E L   H A N D 1 8 5

40 percent respectively when people with past criminal records were

provided with supportive housing.17

People returning “home” from prison are typically the poorest of

the poor, lacking the ability to pay for private housing and routinely

denied public housing assistance—the type of assistance which could

provide some much-needed stability in their lives. For them, “going

home” is more a figure of speech than a realistic option. More than

650,000 people are released from prison each year, and for many, find-

ing a new home appears next to impossible, not just in the short term,

but for the rest of their lives. As a forty-one-year-old African American

mother remarked after being denied housing because of a single arrest

four years prior to her application, “I’m trying to do the right thing; I

deserve a chance. Even if I was the worst criminal, I deserve a chance.

Everybody deserves a chance.”18

Boxed In

Aside from figuring out where to sleep, nothing is more worrisome for

people leaving prison than figuring out where to work. In fact, a study

by the Vera Institute found that during the first month after release

from prison, people consistently were more preoccupied with finding

work than anything else.19 Some of the pressure to find work comes

directly from the criminal justice system. According to one survey of

state parole agencies, forty of the fifty-one jurisdictions surveyed (the

fifty states and the District of Columbia) required parolees to “maintain

gainful employment.”20 Failure to do so could mean more prison time.

Even beyond the need to comply with the conditions of parole,

employment satisfies a more basic human need—the fundamental

need to be self sufficient, to contribute, to support one’s family, and to

add value to society at large. Finding a job allows a person to establish

a positive role in the community, develop a healthy self-image, and

keep a distance from negative influences and opportunities for illegal

1 8 6 T H E N E W J I M   C R O W

behavior. Work is deemed so fundamental to human existence in many

countries around the world that it is regarded as a basic human right.

Deprivation of work, particularly among men, is strongly associated

with depression and violence.

Landing a job after release from prison is no small feat. “I’ve watched

the discrimination and experienced it firsthand when you have to

check the box,” says Susan Burton, a formerly incarcerated woman

who has dedicated her life to providing women released from prison

the support necessary to reestablish themselves in the workforce. The

“box” she refers to is the question on job applications in which appli-

cants are asked to check “yes” or “no” if they have ever been convicted

of a crime. “It’s not only [on] job [applications],” Burton explains. “It’s

on housing. It’s on a school application. It’s on welfare applications. It’s

everywhere you turn.”21

Nearly every state allows private employers to discriminate on the

basis of past criminal convictions. In fact, employers in most states

can deny jobs to people who were arrested but never convicted of any

crime. Only ten states prohibit all employers and licensing agencies

from considering arrests, and three states prohibit some employers

and occupational and licensing agencies from doing so.22 Employers in

a growing number of professions are barred by state licensing agencies

from hiring people with a wide range of criminal convictions, even

convictions unrelated to the job or license sought.23

The result of these discriminatory laws is that virtually every job

application, whether for dog catcher, bus driver, Burger King cashier,

or accountant, asks people with criminal records to “check the box.”

Most people with criminal convictions have difficulty even getting an

interview after they have checked the box, because most employers

are unwilling to consider hiring a self-identified “criminal.” One sur-

vey showed that although 90 percent of employers say they are willing

to consider filling their most recent job vacancy with a welfare recipi-

ent, only 40 percent are willing to consider doing so with someone

T H E C R U E L   H A N D 1 8 7

who had been convicted of a crime.24 Similarly, a 2002 survey of 122

California employers revealed that although most employers would

consider hiring someone convicted of a misdemeanor offense, the

numbers dropped dramatically for those convicted of felonies. Less

than a quarter of employers were willing to consider hiring someone

convicted of a drug-related felony; the number plummeted to 7 per-

cent for a property-related felony, and less than 1 percent for a violent

felony.25 Even those who hope to be self-employed—for example, as

a barber, manicurist, gardener, or counselor—may discover that they

are denied professional licenses on the grounds of past arrests or

convictions, even if their offenses have nothing at all to do with their

ability to perform well in their chosen profession.

For most people coming out of prison, a criminal conviction adds

to the barriers they face upon release. About 70 percent of people

with criminal records did not complete high school, and according

to at least one study, about half are functionally illiterate.26 Many are

tracked for prison at early ages, labeled as criminals in their teen

years, and then shuttled from their decrepit, underfunded inner-city

schools to brand-new, high-tech prisons. The communities and

schools from which they come fail to prepare them for the workforce,

and once they have been labeled criminals, their job prospects are

forever bleak.

Adding to their troubles is the “spatial mismatch” between

their residence and employment opportunities.27 Willingness to

hire people with criminal records is greatest in construction or

manufacturing—industries that require little customer contact—and

weakest in retail trade and other service sector businesses.28

Manufacturing jobs, however, have all but disappeared from the

urban core during the past thirty years. Not long ago, young, unskilled

men could find decent, well-paying jobs at large factories in most major

Northern cities. Today, due to globalization and deindustrialization,

that is no longer the case. Jobs can be found in the suburbs—mostly

1 8 8 T H E N E W J I M   C R O W

service sector jobs—but employment for unskilled men with criminal

convictions, while difficult to find anywhere, is especially hard to find

close to home.

A person whose driver’s license has been suspended due to a crimi-

nal conviction or who does not have access to a car often faces nearly

insurmountable barriers to finding employment. Driving to the sub-

urbs to pick up and drop off applications, attend interviews, and pur-

sue employment leads may be perfectly feasible if you have a driver’s

license and access to a vehicle, but attempting to do so by bus is anoth-

er matter entirely. An unemployed black man from Chicago’s South

Side explains: “Most of the time . . . the places be too far and you

need transportation and I don’t have none right now. If I had some

I’d probably be able to get one [a job]. If I had a car and went way into

the suburbs, ’cause there ain’t none in the city.”29 Those who actually

land jobs in the suburbs find it difficult to keep them without reliable,

affordable transportation.

Murray McNair, a twenty-two-year-old African American, returned

to Newark, New Jersey, after being locked up for drug offenses. He

shares a small apartment with his pregnant girlfriend, his sister, and

her two children. Through a federally funded job training program

operated by Goodwill Industries, McNair found a $9-an-hour job at a

warehouse twenty miles—two buses and a taxi ride—away. “I know

it’s going to be tough,” he told a New York Times reporter. “But I can’t

be thinking about myself anymore.”30

The odds of McNair, or anyone in a similar situation, succeeding

under these circumstances are small. If you make $9 per hour, but

spend $20 dollars or more getting to and from work every day, how do

you manage to pay rent, buy food, and help to support yourself and a

growing family? An unemployed thirty-six-year-old black man quit his

suburban job because of the transportation problem. “I was spending

more money getting to work than I earned working.”31

T H E C R U E L   H A N D 1 8 9

The Black Box

Black people with criminal records are the most severely dis-

advantaged applicants in the modern job market. While all job

applicants—regardless of race—are harmed by a criminal record, the

harm is not equally felt. Not only are African Americans far more like-

ly to be labeled criminals, they are also more strongly affected by the

stigma of a criminal record. Black men convicted of felonies are the

least likely to receive job offers of any demographic group, and subur-

ban employers are the most unwilling to hire them.32

Sociologist Devah Pager explains that those sent to prison “are

institutionally branded as a particular class of individuals” with major

implications for their place and status in society.33 The “negative cre-

dential” associated with a criminal record represents a unique mecha-

nism of state-sponsored stratification. As Pager puts it, “it is the state

that certifies particular individuals in ways that qualify them for dis-

crimination or social exclusion.” The “official status” of this negative

credential differentiates it from other sources of social stigma, offering

legitimacy to its use as a basis for discrimination. Four decades ago,

employers were free to discriminate explicitly on the basis of race;

today employers feel free to discriminate against those who bear the

prison label—i.e., those labeled criminals by the state. The result is a

system of stratification based on the “official certification of individual

character and competence”—a form of branding by the government.34

Given the incredibly high level of discrimination suffered by black

men in the job market and the structural barriers to employment in

the new economy, it should come as no surprise that a huge percentage

of African American men are unemployed. Nearly one-third of young

black men in the United States today are out of work.35 The jobless rate

for young black male dropouts, including those incarcerated, is a stag-

gering 65 percent.36

19 0 T H E N E W J I M   C R O W

In an effort to address the rampant joblessness among black men

labeled criminals, a growing number of advocates in recent years have

launched Ban the Box campaigns. These campaigns have been suc-

cessful in cities like San Francisco, where All of Us or None, a non-

profit grassroots organization dedicated to eliminating discrimination

against formerly incarcerated and convicted people, persuaded the

San Francisco Board of Supervisors to approve a resolution designed

to eliminate hiring discrimination against people with criminal

records. San Francisco’s new policy (which took effect in June 2006)

seeks to prevent discrimination on the basis of a criminal record by

removing the criminal-history box from the initial application. An

individual’s past convictions will still be considered, but not until

later in the hiring process, when the applicant has been identified as

a serious candidate for the position. The only exception is for those

jobs for which state or local laws expressly bar people with certain

specific convictions from employment. These applicants will still be

required to submit conviction-history information at the beginning

of the hiring process. However, unlike a similar ordinance adopted

in Boston, San Francisco’s policy applies only to public employment,

not to private vendors that do business with the city or county of San

Francisco.

While these grassroots initiatives and policy proposals are major

achievements, they raise questions about how best to address the com-

plex and interlocking forms of discrimination experienced by black

people with criminal records. Some scholars believe, based on the

available data, that black males may suffer more discrimination—not

less—when specific criminal history information is not available.37

Because the association of race and criminality is so pervasive, employ-

ers may use less accurate and discriminatory methods to screen out

those perceived to be likely criminals. Popular but misguided prox-

ies for criminality—such as race, receipt of public assistance, low

T H E C R U E L   H A N D 19 1

educational attainment, and gaps in work history— could be used by

employers when no box is available on the application form to iden-

tify people with criminal records. This concern is supported by ethno-

graphic work suggesting that employers have fears of violence by black

men relative to other groups of applicants and act on those fears when

making hiring decisions. Without disconfirming information in the

job application itself, employers may (consciously or unconsciously)

treat all black men as though they have a criminal record, effectively

putting all (or most) of them in the same position as black people just

released from prison. This research suggests that banning the box is

not enough. We must also get rid of the mind-set that puts black men

“in the box.” This is no small challenge.

A recent study by the National Employment Law Project (NELP)

suggests that many employers refuse to consider people with crimi-

nal records for a wide range of jobs, despite the fact that the Equal

Employment Opportunity Commission (EEOC) has advised employ-

ers that flat bans may be illegal. In 1987, the EEOC issued guidelines

advising employers that discrimination against people with crimi-

nal histories is permissible if—and only if— employers consider the

nature and gravity of the offense or offenses, the time that has passed

since the conviction and / or completion of the sentence, and the nature

of the job held or sought. According to the agency, an absolute bar

to employment based on prior convictions— without consideration of

these factors— violates Title VII of the Civil Rights Act if such a bar has

a racially disparate impact.

EEOC guidelines do not have the force of law, but judges frequently

turn to them when evaluating whether unlawful discrimination has

occurred, and the EEOC has the power to sue employers that run afoul

of Title VII. Apparently few employers are deterred. NELP’s study of

Craigslist .com, which operates in more than four hundred geograph-

ic areas, found that employers blatantly violate EEOC guidelines.

19 2 T H E N E W J I M   C R O W

Hundreds of ads precluded consideration of individuals with criminal

conviction histories.38 For example:

“No arrests or convictions of any kind for the past seven

years. No Felony arrests or convictions of any kind for

life.”—Job ad for electrician contractor, September 29,

2010, OMNI Energy Services Corp

“We are looking for people with . . . spotless back-

ground/criminal history.”—Job ad for warehouse worker

or delivery drivers, September 2, 2010, CORT Furniture

Rental

“ALL CANDIDATES WILL BE E-VERIFIED AND MUST

CLEAR A BACKGROUND CHECK (NO PRIORS).”—Job ad

for manufacturing jobs, October 5, 2010, Carlisle Staffing

(staffing firm operating in the Chicago area)

“IN ORDER TO QUALIFY AS A DRIVER FOR FEDEX,

YOU MUST HAVE THE FOLLOWING: . . . Clean criminal

record, no misdemeanors, no felonies.”—Job ad for diesel

mechanic/delivery driver, September 24, 2010, contractor

for FedEx Ground

“DO NOT APPLY WITH ANY MISDEMEANORS / FEL-

ONIES”—Job ad for sewer-selling technician, February 10,

2010, Luskin-Clark Service Company

“Minimum requirements for Employment Consider-

ation, No Exceptions!: No Misdemeanors and/or Felonies

of any type ever in background.”—Job ad for warehouse

and manufacturing jobs, February 18, 2010, Perimeter

Staffing (staffing firm operating in Atlanta)

Although each of these statements violates the EEOC prohibition

against blanket hiring bans, employers and their recruitment/staffing

agencies routinely limit the pool of qualified candidates to those with

spotless records, thus excluding millions of people from having the

T H E C R U E L   H A N D 19 3

opportunity even to interview for jobs. Millions find themselves locked

out of the legal economy, and no one with a record has a more difficult

time getting hired than black men.

Debtor’s Prison

The lucky few who land a decent job—one that pays a living wage and

is in reasonable proximity to their residence—often discover that the

system is structured in such a way that they still cannot survive in the

mainstream, legal economy. Upon release from prison, people are typi-

cally saddled with large debts—financial shackles that hobble them as

they struggle to build a new life. In this system of control, like the one

that prevailed during Jim Crow, one’s “debt to society” often reflects

the cost of imprisonment.

Throughout the United States, people who are newly released from

prison are required to make payments to a host of agencies, including

probation departments, courts, and child-support enforcement offices.

In some jurisdictions, they are billed for drug testing and even for the

drug treatment they are supposed to receive as a condition of parole.

These fees, costs, and fines are generally quite new—created by law

within the past twenty years—and are associated with a wide range

of offenses. Every state has its own rules and regulations governing

their imposition. Florida, for example, has added more than twenty

new categories of financial obligations for defendants in criminal cases

since 1996, while eliminating most exemptions for those who cannot

pay.39 Examples of preconviction service fees imposed throughout

the United States today include jail book-in fees levied at the time of

arrest, jail per diems assessed to cover the cost of pretrial detention,

public defender application fees charged when someone applies for

court-appointed counsel, and the bail investigation fee imposed when

the court determines the likelihood of the accused appearing at trial.

Postconviction fees include pre-sentence report fees, public defender

19 4 T H E N E W J I M   C R O W

recoupment fees, and fees levied on people convicted of crimes and

placed in a residential or work-release program. Upon release, even

more fees may attach, including parole or probation service fees. Such

fees are typically charged on a monthly basis during the period of

supervision.40 In Ohio, for example, a court can order people on pro-

bation to pay a $50 monthly supervision fee as a condition of proba-

tion; failure to pay may warrant additional state control sanctions or a

modification in their sentence.41

Many states utilize “poverty penalties”—piling on additional late

fees, payment plan fees, and interest when individuals are unable to

pay all their debts at once, often enriching private debt collectors in the

process. Some of the collection fees are exorbitant. Alabama charges a

30 percent collection fee, and Florida allows private debt collectors to

tack on a 40 percent surcharge to the underlying debt.42

Two-thirds of people detained in jails report annual incomes under

$12,000 prior to arrest. Predictably, most people find themselves

unable to pay the many fees, costs, and fines associated with their

imprisonment, as well as their child-support debts (which continue

to accumulate while a person is incarcerated). As a result, many have

their paychecks garnished. Federal law provides that a child-support

enforcement officer can garnish up to 65 percent of an individual’s

wages for child support. On top of that, probation officers in most

states can require that an individual dedicate 35 percent of his or her

income toward the payment of fines, fees, surcharges, and restitution

charged by numerous agencies.43 Accordingly, a formerly incarcerated

person living at or below the poverty level can be charged by four or

five departments at once and can be required to surrender 100 percent

of his or her earnings. As a New York Times editorial soberly observed,

“People caught in this impossible predicament are less likely to seek

regular employment, making them even more susceptible to criminal

relapse.” 44

Whether or not people with criminal records make the ratio-

T H E C R U E L   H A N D 19 5

nal choice to participate in the illegal economy (rather than have

up to 100 percent of their wages garnisheed), they may still go back

to prison for failure to meet the financial portion of their probation

supervision requirements. Although “debtor’s prison” is illegal in all

states, many states use the threat of probation or parole revocation as

a debt- collection tool. In fact, in some jurisdictions, individuals may

“choose” to go to jail as a way to reduce their debt burdens, a practice

that has been challenged as unconstitutional.45 Adding to the insan-

ity, many states suspend driving privileges for missed debt payments,

a practice that often causes people to lose employment (if they had

it) and creates yet another opportunity for jail time: driving with a

suspended license.46 In this regime, many people are thrown back in

prison simply because they have been unable—with no place to live,

and no decent job—to pay back thousands of dollars of prison-related

fees, fines, and child support. Some people, like Ora Lee Hurley, find

themselves trapped by fees and fines in prison. Hurley was held at

the Gateway Diversion Center in Atlanta in 2006. She was imprisoned

because she owed a $705 fine. As part of the diversion program, Hurley

was permitted to work during the day and return to the center at night.

“Five days a week she work[ed] fulltime at a restaurant earning $6.50

an hour and, after taxes, net about $700 a month.” 47 Room and board at

the diversion center was about $600, and her monthly transportation

cost $52. Miscellaneous other expenses, including clothes, shoes, and

personal items such as toothpaste, quickly exhausted what was left.

Hurley’s attorney decried the trap she was in: “This is a situation where

if this woman was able to write a check for the amount of the fine, she

would be out of there. And because she can’t, she’s still in custody. It’s

as simple as that.” 48 Although she worked a full-time job while in cus-

tody, most of her income went to repay the diversion program, not the

underlying fine that put her in custody in the first place.

This harsh reality harks back to the days after the Civil War, when

former slaves and their descendants were arrested for minor violations,

19 6 T H E N E W J I M   C R O W

slapped with heavy fines, and then imprisoned until they could pay

their debts. The only means to pay off their debts was through labor

on plantations and farms—known as convict leasing—or in prisons

that had been converted to work farms. Paid next to nothing, people

convicted of crimes were effectively enslaved in perpetuity, as they

were unable to earn enough to pay off their debts.

Today, many incarcerated people work in prison, typically earning

far less than the minimum wage—often less than $3 per hour, some-

times as little as 25 cents. Their accounts are then “charged” for vari-

ous expenses related to their incarceration, making it impossible for

them to save the money that otherwise would allow them to pay off

their debts or help them make a successful transition when released

from prison. Typically, people are released from prison with only the

clothes on their backs and a pittance in gate money. Sometimes the

money is barely enough to cover the cost of a bus ticket back home.

Let Them Eat Cake

So here you are—newly released from prison—homeless, unemployed,

and carrying a mountain of debt. How do you feed yourself? Care for

your children? There is no clear answer to that question, but one thing

is for sure: do not count on the government for any help. Not only will

you be denied housing, but you may well be denied food.

Welfare reform legislation signed by President Bill Clinton in 1996

ended individual entitlements to welfare and provided states with

block grants. The Temporary Assistance for Needy Families Program

(TANF) imposes a five-year lifetime limit on benefits and requires wel-

fare recipients, including those who have young children and lack child

care, to work in order to receive benefits. In the abstract, a five-year

limit may sound reasonable. But consider this: When one is labeled

a criminal, forced to “check the box” on applications for employment

and housing, and burdened by thousands of dollars in debt, is it pos-

T H E C R U E L   H A N D 19 7

sible that one will live on the brink of severe poverty for more than five

years and thus require food stamps for oneself and one’s family? Until

1996, there was a basic understanding that poverty- stricken mothers

raising children should be afforded some minimal level of assistance

with food and shelter.

The five-year limit on benefits, however, is not the law’s worst fea-

ture. The law also requires that states permanently bar individuals

with drug- related felony convictions from receiving federally funded

public assistance. The statute does contain an opt-out provision, but as

of 2010 only thirteen states and the District of Columbia had opted out

entirely. Most states have partially opted out, affording exceptions for

people in drug treatment, for example.49 It remains the case, however,

that thousands of people with felony drug convictions in the United

States are deemed ineligible for food stamps for the rest of their lives,

including pregnant women, people in drug treatment or recovery, and

people suffering from HIV/AIDS—simply because they were once

caught with drugs.

The Silent Minority

If shackling people with criminal records with a lifetime of debt and

authorizing discrimination against them in employment, housing, edu-

cation, and public benefits is not enough to send the message that they

are not wanted and not even considered full citizens, then stripping

voting rights from those labeled criminals surely gets the point across.

Forty-eight states and the District of Columbia prohibit people from

voting while incarcerated for a felony offense. Only two states—Maine

and Vermont—permit people to vote while serving sentences behind

bars. The vast majority of states continue to withhold the right to vote

when people are released on parole. Even after the term of punishment

expires, some states deny the right to vote for a period ranging from a

number of years to the rest of one’s life.50

19 8 T H E N E W J I M   C R O W

This is far from the norm in other countries—like Germany, for

instance, which allows (and even encourages) people to vote in prison.

In fact, about half of European countries allow all people behind bars

to vote, while others disqualify only a small number from the polls.51

People in prison vote either in their correctional facilities or by some

version of absentee ballot in their town of previous residence. Almost

all of the countries that place some restrictions on voting in prison are

in Eastern Europe, part of the former Communist bloc.52

No other country in the world disenfranchises people who are

released from prison in a manner even remotely resembling the Unit-

ed States. In fact, the United Nations Human Rights Committee has

charged that U.S. disenfranchisement policies are discriminatory and

violate international law. In those few European countries that per-

mit limited postprison disqualification, the sanction is very narrowly

tailored and the number of people disenfranchised is probably in the

dozens or hundreds.53 In the United States, by contrast, voting dis-

qualification upon release from prison is automatic, with no legitimate

purpose, and affects millions.

Even those who are technically eligible to vote following release

from prison frequently remain disenfranchised for life. Every state has

developed its own process for restoring voting rights. Typically the

restoration process is a bureaucratic maze that requires the payment

of fines or court costs. The process is so cumbersome, confusing, and

onerous that many people who are theoretically eligible to vote never

manage to get their voting rights back.54 Throughout much of the Unit-

ed States, people convicted of felonies are expected to pay fines and

court costs, and submit paperwork to multiple agencies in an effort to

win back a right that should never have been taken away in a democ-

racy. These bureaucratic minefields are the modern-day equivalent of

poll taxes and literacy tests—“colorblind” rules designed to make vot-

ing a practical impossibility for a group defined largely by race.

T H E C R U E L   H A N D 19 9

The message communicated by felon disenfranchisement laws, poli-

cies, and bureaucratic procedures is not lost on those, such as Clin-

ton Drake, who are effectively barred from voting for life.55 Drake, a

fifty-five-year-old African American man in Montgomery, Alabama,

was arrested in 1988 for possession of marijuana. Five years later, he

was arrested again, this time for having about $10 worth of the drug

on him. Facing between ten and twenty years in prison as a “repeat

offender,” Drake, a Vietnam veteran and, at the time, a cook on a local

air force base, took his public defender’s advice and accepted a plea

bargain. Under the plea agreement, he would “only” have to spend five

years behind bars. Five years for five joints.

Once released, Drake found he was forbidden by law from voting

until he paid his $900 in court costs—an impossible task, given that

he was unemployed and the low-wage jobs he might conceivably find

would never allow him to accumulate hundreds of dollars in savings.

For all practical purposes, he would never be able to vote again. Shortly

before the 2004 presidential election, he said in despair:

I put my life on the line for this country. To me, not voting

is not right; it led to a lot of frustration, a lot of anger. My

son’s in Iraq. In the army just like I was. My oldest son,

he fought in the first Persian Gulf conflict. He was in the

Marines. This is my baby son over there right now. But I’m

not able to vote. They say I owe $900 in fines. To me, that’s

a poll tax. You’ve got to pay to vote. It’s “restitution,” they

say. I came off parole on October 13, 1999, but I’m still not

allowed to vote. Last time I voted was in ’88. Bush versus

Dukakis. Bush won. I voted for Dukakis. If it was up to me,

I’d vote his son out this time too. I know a lot of friends

got the same cases like I got, not able to vote. A lot of guys

doing the same things like I was doing. Just marijuana.

2 0 0 T H E N E W J I M   C R O W

They treat marijuana in Alabama like you committed trea-

son or something. I was on the 1965 voting rights march

from Selma. I was fifteen years old. At eighteen, I was in

Vietnam fighting for my country. And now? Unemployed

and they won’t allow me to vote.56

Drake’s vote, along with the votes of millions of other people labeled

felons, might have made a real difference in 2004. There is no doubt

their votes would have changed things in 2000. Following the elec-

tion, it was widely reported that, had the 600,000 formerly incarcer-

ated people who had completed their sentence in Florida been allowed

to vote, Al Gore would have been elected president of the United States

rather than George W. Bush.57

Four years later, voter registration workers in the South encountered

scores of people with criminal records who were reluctant to register to

vote, even if they were technically eligible, because they were scared to

have any contact with governmental authorities. Many on welfare were

worried that any little thing they did to bring attention to themselves

might put their food stamps at risk. Others had been told by parole

and probation officers that they could not vote, and although it was

not true, they believed it, and the news spread like wildfire. “How long

you think it take if someone tells you you can’t vote before it spreads?”

asked one man who was misled. “It’s been years and years people tell-

ing you you can’t vote. You live in a slum, you’re not counted.”58

Even those who knew they were eligible to register worried that reg-

istering to vote would somehow attract attention to them—perhaps

land them back in jail. While this might strike some as paranoia, many

Southern blacks have vivid memories of the harsh consequences that

befell their parents and grandparents who attempted to vote in defiance

of poll taxes, literacy tests, and other devices adopted to suppress the

black vote. Many were terrorized by the Klan. Today, people labeled fel-

T H E C R U E L   H A N D 2 0 1

ons live in constant fear of a different form of racial repression— racial

profiling, police brutality, and revocation of parole. One investigative

journalist described the situation this way: “Overwhelmingly, black

people [in Mississippi] are scared of any form of contact with authori-

ties they saw as looking for excuses to reincarcerate them. In neighbor-

hood after neighborhood, the grandchildren of the civil rights pioneers

from the 1950s were as scared to vote, because of prisons and the threat

of prisons, as their grandparents were half a century ago because of the

threat of the lynch mob.”59 Nshombi Lambright, of the Jackson ACLU,

concurs. “People aren’t even trying to get their vote back,” she said.

“It’s hard just getting them to attempt to register. They’re terrorized.

They’re so scared of going back to jail that they won’t even try it.” 60

Research indicates that a large number of close elections would have

come out differently if people with felony records had been allowed

to vote, including at least seven senatorial races between 1980 and

2000.61 The impact on those major elections undoubtedly would be

greater if all those deterred or prevented from voting were taken into

account. But as many will hasten to emphasize, it is not just the “big”

elections that matter. One parent barred from voting due to his felony

conviction put it this way: “I have no right to vote on the school refer-

endums that . . . will affect my children. I have no right to vote on how

my taxes is going to be spent or used, which I have to pay whether I’m

a felon or not, you know? So basically I’ve lost all voice or control over

my government. . . . I get mad because I can’t say anything because I

don’t have a voice.” 62

Those who do have their voting rights restored often describe a feel-

ing of validation, even pride. “I got a voice now,” said Willa Womack, a

forty-four-year-old African American woman who had been incarcer-

ated on drug charges. “I can decide now who will be my governor, who

will be my president. I have a vote now. I feel like somebody. It’s a feel-

ing of relief from where I came from—that I’m actually somebody.” 63

2 0 2 T H E N E W J I M   C R O W

The Pariahs

For Americans who are not caught up in this system of control, it can

be difficult to imagine what life would be like if discrimination against

you were perfectly legal—if you were not allowed to participate in the

political system and if you were not even eligible for food stamps or

welfare and could be denied housing assistance. Yet as bad as these

forms of discrimination are, many people who have been ensnared by

the system will tell you that the formal mechanisms of exclusion are

not the worst of it. The shame and stigma that follow you for the rest of

your life—they are the worst. It is not just the job denial but the look

that flashes across the face of a potential employer when he notices

that “the box” has been checked—the way he suddenly refuses to look

you in the eye. It is not merely the denial of the housing application but

the shame of being a grown man who has to beg his grandmother for

a place to sleep at night. It is not simply the denial of the right to vote

but the shame one feels when a co-worker innocently asks, “Who you

gonna vote for on Tuesday?”

One need not be formally convicted in a court of law to be subject

to this shame and stigma. As long as you “look like” or “seem like” a

criminal, you are treated with the same suspicion and contempt, not

just by police, security guards, or hall monitors at your school, but

also by the woman who crosses the street to avoid you and by the store

employees who follow you through the aisles, eager to catch you in the

act of being the “criminalblackman”—the archetypal figure who justi-

fies the New Jim Crow.64

Practically from cradle to grave, black men in urban ghettos are

treated like current or future criminals. One may learn to cope with

the stigma of criminality, but like the stigma of race, the prison label

is not something that black men in the ghetto can ever fully escape.

For those newly released from prison, the pain is particularly acute.

As Dorsey Nunn, the cofounder of All of Us or None, once put it, “The

T H E C R U E L   H A N D 2 0 3

biggest hurdle you gotta get over when you walk out those prison gates

is shame—that shame, that stigma, that label, that thing you wear

around your neck saying ‘I’m a criminal.’ It’s like a yoke around your

neck, and it’ll drag you down, even kill you if you let it.” Many experi-

ence an existential angst associated with their permanent social exclu-

sion. Henry, a young African American convicted of a felony, explains,

“[It’s like] you broke the law, you bad. You broke the law, bang—you’re

not part of us anymore.” 65 That sentiment is shared by a woman, cur-

rently incarcerated, who described the experience this way:

When I leave here it will be very difficult for me in the

sense that I’m a felon. That I will always be a felon . . .

for me to leave here, it will affect my job, it will affect my

education . . . custody [of my children], it can affect child

support, it can affect everywhere—family, friends, hous-

ing. . . . People that are convicted of drug crimes can’t even

get housing anymore. . . . Yes, I did my prison time. How

long are you going to punish me as a result of it? And not

only on paper, I’m only on paper for ten months when

I leave here, that’s all the parole I have. But, that parole

isn’t going to be anything. It’s the housing, it’s the credit

re-establishing. . . . I mean even to go into the school, to

work with my child’s class—and I’m not a sex offender—

but all I need is one parent who says, “Isn’t she a felon? I

don’t want her with my child.” 66

The permanence of one’s social exile is often the hardest to swal-

low. For many it seems inconceivable that, for a minor offense, you

can be subjected to discrimination, scorn, and exclusion for the rest of

your life. Human Rights Watch, in its report documenting the experi-

ences of America’s undercaste, tells the story of a fifty-seven-year-old

African American woman, denied rental housing by a federally funded

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landlord due to a minor conviction she did not even know was on her

record. After being refused reconsideration, she asked her caseworker

in pained exasperation, “Am I going to be a criminal for the rest of

my life?” 67

When someone is convicted of a crime today, their “debt to soci-

ety” is never paid. The “cruel hand” that Frederick Douglass spoke of

more than 150 years ago has appeared once again. In this new system

of control, like the last, many black men “hold up [their] heads, if at

all, against the withering influence of a nation’s scorn and contempt.”

Willie Johnson, a forty-three-year-old African American man recently

released from prison in Ohio, explained it this way:

My felony conviction has been like a mental punishment,

because of all the obstacles. . . . Every time I go to put in

a [job] application—I have had three companies hire me

and tell me to come to work the next day. But then the day

before they will call and tell me don’t come in—because

you have a felony. And that is what is devastating because

you think you are about to go to work and they call you

and say because of your felony we can’t hire [you]. I have

run into this at least a dozen times. Two times I got very

depressed and sad because I couldn’t take care of myself as

a man. It was like I wanted to give up—because in society

nobody wants to give us a helping hand. Right now I am

considered homeless. I have never been homeless until I left

the penitentiary, and now I know what it feels to be home-

less. If it was not for my family I would be in the streets

sleeping in the cold. . . . We [black men] have three strikes

against us: 1) because we are black, and 2) because we are

a black male, and the final strike is a felony. These are the

greatest three strikes that a black man has against him in

this country. I have friends who don’t have a felony—and

T H E C R U E L   H A N D 2 0 5

have a hard time getting a job. But if a black man can’t find

a job to take care of himself—he is ashamed that he can’t

take care of his children.68

Not surprisingly, for many black men, the hurt and depression give

way to anger. A black minister in Waterloo, Mississippi, explained his

outrage at the fate that has befallen African Americans in the post–civil

rights era. “It’s a hustle,” he said angrily. “‘Felony’ is the new N-word.

They don’t have to call you a nigger anymore. They just say you’re a

felon. In every ghetto you see alarming numbers of young men with

felony convictions. Once you have that felony stamp, your hope for

employment, for any kind of integration into society, it begins to fade

out. Today’s lynching is a felony charge. Today’s lynching is incarcera-

tion. Today’s lynch mobs are professionals. They have a badge; they

have a law degree. A felony is a modern way of saying, ‘I’m going to

hang you up and burn you.’ Once you get that F, you’re on fire.” 69

Remarkably, it is not uncommon today to hear media pun-

dits, politicians, social critics, and celebrities—most notably Bill

Cosby—complain that the biggest problem black men have today is

that they “have no shame.” Many worry that prison time has become

a badge of honor in some communities—“a rite of passage” is the term

most often used in the press. Others claim that inner-city residents no

longer share the same value system as mainstream society, and there-

fore are not stigmatized by criminality. Yet as Donald Braman, author

of Doing Time on the Outside, states, “One can only assume that most

participants in these discussions have had little direct contact with the

families and communities they are discussing.”70

Over a four-year period, Braman conducted a major ethnographic

study of families affected by mass incarceration in Washington, DC,

a city where three out of every four young black men can expect to

spend some time behind bars.71 He found that, contrary to popu-

lar belief, the young men labeled criminals and their families are

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profoundly hurt and stigmatized by their status: “They are not shame-

less; they feel the stigma that accompanies not only incarceration but

all the other stereotypes that accompany it—fatherlessness, poverty,

and often, despite every intent to make it otherwise, diminished love.”

The results of Braman’s study have been largely corroborated by simi-

lar studies elsewhere in the United States.72

These studies indicate that the biggest problem the black commu-

nity may face today is not “shamelessness” but rather the severe isola-

tion, distrust, and alienation created by mass incarceration. During

Jim Crow, blacks were severely stigmatized and segregated on the basis

of race, but in their own communities they could find support, solidar-

ity, acceptance—love. Today, when those labeled criminals return to

their communities, they are often met with scorn and contempt, not

just by employers, welfare workers, and housing officials, but also by

their own neighbors, teachers, and even members of their own fami-

lies. This is so, even when they have been imprisoned for minor offens-

es, such as possession and sale of a small amount of drugs. Young black

males in their teens are often told “you’ll amount to nothing” or “you’ll

find yourself back in jail, just like your father”—a not-so-subtle sug-

gestion that a shameful defect lies deep within them, an inherited trait

perhaps—part of their genetic makeup. “You are a criminal, nothing

but a criminal. You are a no good criminal.”73

The anger and frustration directed at young black men returning

home from prison is understandable, given that they are returning to

communities that are hurt by joblessness and crime. These communi-

ties desperately need their young men to be holding down jobs and sup-

porting their families, rather than wasting away in prison cells. While

there is widespread recognition that the War on Drugs is racist and

that politicians have refused to invest in jobs or schools in their com-

munities, parents of people in prison still feel intense shame—shame

that their children have turned to crime despite the lack of obvious

alternatives. One mother of an incarcerated teen, Constance, described

T H E C R U E L   H A N D 2 0 7

her angst this way: “Regardless of what you feel like you’ve done for

your kid, it still comes back on you, and you feel like, ‘Well, maybe I

did something wrong. Maybe I messed up. You know, maybe if I had a

did it this way, then it wouldn’t a happened that way.’ ” After her son’s

arrest, she could not bring herself to tell friends and relatives and kept

the family’s suffering private. Constance is not alone.

Eerie Silence

David Braman’s ethnographic research shows that mass incarceration,

far from reducing the stigma associated with criminality, actually

creates a deep silence in communities of color, one rooted in shame.

Imprisonment is considered so shameful that many people avoid talk-

ing about it, even within their own families. Some, like Constance,

are silent because they blame themselves for their children’s fate and

believe that others blame them as well. Others are silent because they

believe hiding the truth will protect friends and family members—e.g.,

“I don’t know what [his incarceration] would do to his aunt. She just

thinks so highly of him.” Others claim that a loved one’s criminality is

a private, family matter: “Somebody’s business is nobody’s business.”74

Remarkably, even in communities devastated by mass incarceration,

many people struggling to cope with the stigma of imprisonment have

no idea that their neighbors are struggling with the same grief, shame,

and isolation. Braman reported that “when I asked participants [in the

study] if they knew of other people in the neighborhood, many did

know of one or two out of the dozens of households on the block that

had members incarcerated but did not feel comfortable talking with

others.”75 This type of phenomenon has been described in the psy-

chological literature as pluralistic ignorance, in which people misjudge

the norm. One example is found in studies of college freshman who

overestimate the drinking among other freshman.76 When it comes

to families of people in prison, however, their underestimation of the

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extent of incarceration in their communities exacerbates their sense of

isolation by making the imprisonment of their family members seem

more abnormal than it is.

Even in church, a place where many people seek solace in times

of grief and sorrow, families often keep secret the imprisonment of

their children or relatives. As one woman responded when asked if she

could turn to church members for support, “Church? I wouldn’t dare

tell anyone at church.”77 Far from being a place of comfort or refuge,

churches can be a place where judgment, shame, and contempt are felt

most acutely. Services in black churches frequently contain a strong

mixture of concern for the less fortunate and a call to personal respon-

sibility. As Cathy Cohen has observed, ministers and members of black

congregations have helped to develop what she calls the “indigenous

constructed image of ‘good, black Christian folk.’”78 Black churches,

in this cultural narrative, are places where the “good” black people in

the community can be found. To the extent that the imprisonment of

one’s son or relative (or one’s own imprisonment) is experienced as a

personal failure—a failure of personal responsibility—church can be

a source of fresh pain rather than comfort.

Those who have had positive experiences of acceptance and sympa-

thy after disclosing the status of a loved one (or their own status) report

they are better able to cope. Notably, however, even after such positive

experiences, most family members remain committed to maintaining

tight control over who knows and who does not know about the status

of their loved one. According to Braman, not one of the family mem-

bers in his study “had ‘come out’ completely to their extended families

at church and at work.”79

Passing (Redux)

Lying about incarcerated family members is another common coping

strategy—a form of passing. Whereas light-skinned blacks during the

T H E C R U E L   H A N D 2 0 9

Jim Crow era sometimes cut off relations with friends and family in an

effort to “pass” as white and enjoy the upward mobility and privilege

associated with whiteness, today many family members lie and try to

hide the status of their relatives in an effort to mitigate the stigma of

criminality. This is especially the case at work— employment settings

where family members interact with people they believe could not pos-

sibly understand what they are going through.

One woman, Ruth, whose younger brother is incarcerated, says she

would never discuss her brother with her co- workers or supervisor,

though they have long shared information about their personal lives.

“You know, I talk to [my supervisor] about stuff, but not this. This

was too much, and it definitely made, well it was just harder to talk to

him. He wants to know how my brother is. I just can’t tell it to him.

What does he know about prison?”80 When asked to explain why her

white co-workers and supervisors would have trouble understanding

her brother’s incarceration, Ruth explained that it was not just incar-

ceration but “everything”—everything related to race. As an example,

she mentioned nights when she works late: “I tell my boss all the time,

I say, ‘If you want me to take a taxi you go down there and flag one for

me. I’m not going out there and stand twenty minutes for a cab when

they’ll run over me to get to you.’ . . . He’s white and, see, he don’t know

the difference because he’s from Seattle, Washington. He looks at me

real strange, like, ‘What are you talking about?’”81

Many families impacted by incarceration are desperately attempting

to be perceived as part of the modern upwardly mobile class, even if

their income does not place them in it. People with criminal records

lie (by refusing to check the box on employment applications), and

family members lie through omission or obfuscation because they are

painfully aware of the historically intransigent stereotypes of crimi-

nal, dysfunctional families that pervade not only public discussions of

inner cities but of the black community in general. This awareness can

lead beyond shame to a place of self-hate.

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One mother of an incarcerated teenager described the self-hate she

perceives in the black community this way:

All your life you been taught that you’re not a worthy per-

son, or something is wrong with you. So you don’t have no

respect for yourself. See, people of color have—not all of

them, but a lot of them—have poor self-esteem, because

we’ve been branded. We hate ourselves, you know. We have

been programmed that it’s something that’s wrong with us.

We hate ourselves.82

This self-hate, she explained, does not affect just the young boys

who find themselves getting in trouble and fulfilling the negative

expectations of those in the community and beyond. Self-hate is also

part of the reason people in her neighborhood do not speak to each

other about the impact of incarceration on their families and their

lives. In her nearly all-black neighborhood, she worries about what the

neighbors would think about her if she revealed that her son had been

labeled a criminal: “It’s hard, because, like I say . . . we’ve been labeled

all our lives that we are the bad people.”83

The silence this stigma engenders among family members, neigh-

bors, friends, relatives, co-workers, and strangers is perhaps the most

painful—yet least acknowledged—aspect of the new system of control.

The historical anthropologist Gerald Sider once wrote, “We can have

no significant understanding of any culture unless we also know the

silences that were institutionally created and guaranteed along with

it.”84 Nowhere is that observation more relevant in American society

today than in an analysis of the culture of mass incarceration.

Descriptions of the silence that hovers over mass incarceration are

rare because people—whether they are social scientists, judges, politi-

cians, or reporters—are usually more interested in speech, acts, and

events than in the negative field of silence and estrangement that lurks

T H E C R U E L   H A N D 2 1 1

beneath the surface. But, as Braman rightly notes, those who live in the

shadows of this silence are devalued as human beings:

There is a repression of self experienced by these families

in their silence. The retreat of a mother or wife from friend-

ships in church and at work, the words not spoken between

friends, the enduring silence of children who guard what

for them is profound and powerful information—all are

telling indicators of the social effects of incarceration. As

relationships between family and friends become strained

or false, not only are people’s understandings of one anoth-

er diminished, but, because people are social, they them-

selves are diminished as well.85

The harm done by this social silence is more than interpersonal.

The silence—driven by stigma and fear of shame—results in a repres-

sion of public thought, a collective denial of lived experience. As Bra-

man puts it, “By forcing out of public view the struggles that these

families face in the most simple and fundamental acts—living together

and caring for one another—this broader social silence makes it seem

as though [ghetto families] simply are ‘that way’: broken, valueless,

irreparable.”86 It also makes community healing and collective politi-

cal action next to impossible.

Gangsta Love

For some, the notion that black communities are severely stigmatized

and shamed by criminality is counterintuitive: if incarceration in many

urban areas is the statistical norm, why isn’t it socially normative as

well? It is true that imprisonment has become “normal” in ghetto

communities. In major cities across the United States, the majority of

young black men are under the control of the criminal justice system

2 1 2 T H E N E W J I M   C R O W

or saddled with criminal records. But just because the prison label has

become normal does not mean that it is generally viewed as accept-

able. Poor people of color, like other Americans—indeed like nearly

everyone around the world—want safe streets, peaceful communities,

healthy families, good jobs, and meaningful opportunities to con-

tribute to society. The notion that families struggling in ghettoized

neighborhoods do not, in fact, want those things, and instead are per-

fectly content to live in crime-ridden communities, feeling no shame

or regret about the fate of their young men is, quite simply, racist. It is

impossible to imagine that we would believe such a thing about whites.

The predictable response is: What about gangsta rap and the culture

of violence that has been embraced by so many black youth? Is there

not some truth to the notion that black culture has devolved in recent

years, as reflected in youth standing on the street corners with pants

sagging below their rears and rappers boasting about beating their

“hos” and going to jail? Is there not some reason to wonder whether

the black community, to some extent, has lost its moral compass?

The easy answer is to say yes and wag a finger at those who are

behaving badly. That is the road most traveled, and it has not made a bit

of difference. The media fawn over Bill Cosby and other figures when

they give stern lectures to black audiences about black men failing to

be good fathers and failing to lead respectable lives. They act as though

this is a message black audiences have not heard many times before

from their ministers, from their family members, and from politicians

who talk about the need for more “personal responsibility.” Many seem

genuinely surprised that black people in the audience applaud these

messages; for them, it is apparently news that black people think men

should be good fathers and help to support their families.

The more difficult answer—the more courageous one—is to say

yes, yes we should be concerned about the behavior of men trapped in

ghettoized communities, but the deep failure of morality is our own.

Economist Glenn Loury once posed the question: “are we willing to

T H E C R U E L   H A N D 2 13

cast ourselves as a society that creates crimogenic conditions for some

of its members, and then acts out rituals of punishment against them

as if engaged in some awful form of human sacrifice?” A similar ques-

tion can be posed with respect to shaming those trapped in ghettos:

are we willing to demonize a population, declare a war against them,

and then stand back and heap shame and contempt upon them for fail-

ing to behave like model citizens while under attack?

In this regard, it is helpful to step back and put the behavior of young

black men who appear to embrace “gangsta culture” in the proper per-

spective. There is absolutely nothing abnormal or surprising about a

severely stigmatized group embracing their stigma. Psychologists have

long observed that when people feel hopelessly stigmatized, a power-

ful coping strategy— often the only apparent route to self- esteem—is

embracing one’s stigmatized identity. Hence “black is beautiful” and

“gay pride”—slogans and anthems of political movements aimed at

ending not only legal discrimination, but the stigma that justified it.

Indeed, the act of embracing one’s stigma is never merely a psychologi-

cal maneuver; it is a political act—an act of resistance and defiance in

a society that seeks to demean a group based on an inalterable trait. As

a gay activist once put it, “Only by fully embracing the stigma itself can

one neutralize the sting and make it laughable.”87

For those black youth who are constantly followed by the police and

shamed by teachers, relatives, and strangers, embracing the stigma of

criminality is an act of rebellion—an attempt to carve out a positive

identity in a society that offers them little more than scorn, contempt,

and constant surveillance. Ronny, a sixteen-year-old African American

on probation for a drug-related offense, explains it this way:

My grandma keeps asking me about when I’m gonna get

arrested again. She thinks just ’cause I went in before, I will

go in again. . . . At my school my teachers talk about call-

ing the cop[s] again to take me away. . . . [The] cop keeps

2 1 4 T H E N E W J I M   C R O W

checking up on me. He’s always at the park making sure I

don’t get into trouble again. . . . My P.O. [probation officer]

is always knocking on my door talking shit to me. . . . Even

at the BYA [the local youth development organization] the

staff treat me like I’m a fuck up. . . . Shit don’t change. It

doesn’t matter where I go, I’m seen as a criminal. I just say,

if you are going to treat me as a criminal then I’m gonna

treat you like I am one, you feel me? I’m gonna make you

shake so that you can say that there is a reason for calling

me a criminal. . . . I grew up knowing that I had to show

these fools [adults who criminalize youth] that I wasn’t

going to take their shit. I started to act like a thug even if I

wasn’t one. . . . Part of it was me trying to be hard, the other

part was them treating me like a criminal.88

The problem, of course, is that embracing criminality—while an

understandable response to the stigma—is generally self-defeating

and destructive. While “black is beautiful” is a powerful antidote to

the logic of Jim Crow, and “gay pride” is a liberating motto for those

challenging homophobia, one corollary for young men trapped in the

ghetto in the era of mass incarceration is something akin to “gang-

sta love.” While race and sexual orientation are perfectly appropri-

ate aspects of one’s identity to embrace, criminality for its own sake

most certainly is not. The War on Drugs has greatly exacerbated the

problems associated with drug abuse, rather than solved them, but the

fact remains that the violence associated with the illegal drug trade is

nothing to be celebrated. Violent crime cripples the black community

and does no favors to those who engage in it.

So herein lies the paradox and predicament of young black men

labeled criminals. A war has been declared on them, and they have been

rounded up for engaging in precisely the same crimes that go largely

ignored in middle- and upper-class white communities—possession

T H E C R U E L   H A N D 2 15

and sale of illegal drugs. For those residing in ghetto communities,

employment is scarce— often nonexistent. Schools located in ghetto

communities more closely resemble prisons than places of learning,

creativity, or moral development. And because the drug war has been

raging for decades now, the parents of children coming of age today

were targets of the drug war as well. As a result, many fathers are

in prison, and those who are “free” bear the prison label. They are

often unable to provide for, or meaningfully contribute to, a family.

Any wonder, then, that many youth embrace their stigmatized identity

as a means of survival in this new caste system? Should we be shocked

when they turn to gangs for support when no viable family support

structure exists? After all, in many respects, they are simply doing

what black people did during the Jim Crow era—they are turning to

each other for support and solace in a society that despises them.

Yet when these young people do what all severely stigmatized groups

do—try to cope by turning to each other and embracing their stigma

in a desperate effort to regain some measure of self-esteem—we, as a

society, heap more shame and contempt upon them. We tell them their

friends are “no good,” that they will “amount to nothing,” that they

are “wasting their lives,” and that “they’re nothing but criminals.” We

condemn their baggy pants (a fashion trend that mimics prison- issue

pants) and the music that glorifies a life many feel they cannot avoid.

When we are done shaming them, we throw up our hands and then

turn our backs as they are carted off to jail.

The Minstrel Show

None of the foregoing should be interpreted as an excuse for the vio-

lence, decadence, or misogyny that pervades what has come to be

known as gangsta culture. The images and messages are extremely

damaging. On an average night, one need engage in only a few minutes

of channel surfing during prime-time hours to stumble across images

2 1 6 T H E N E W J I M   C R O W

of gangsta culture on television. The images are so familiar no descrip-

tion is necessary here. Often these images emanate from BET or black-

themed reality shows and thus are considered “authentic” expressions

of black attitudes, culture, and mores.

Again, though, it is useful to put the commodification of gang-

sta culture in proper perspective. The worst of gangsta rap and other

forms of blaxploitation (such as VH1’s Flavor of Love) is best under-

stood as a modern-day minstrel show, only this time televised around

the clock for a worldwide audience. It is a for-profit display of the

worst racial stereotypes and images associated with the era of mass

incarceration—an era in which black people are criminalized and por-

trayed as out-of-control, shameless, violent, oversexed, and generally

undeserving.

Like the minstrel shows of the slavery and Jim Crow eras, today’s

displays are generally designed for white audiences. The majority of

consumers of gangsta rap are white, suburban teenagers. VH1 had its

best ratings ever for the first season of Flavor of Love—ratings driven

by large white audiences. MTV has expanded its offerings of black-

themed reality shows in the hopes of attracting the same crowd. The

profits to be made from racial stigma are considerable, and the fact that

blacks—as well as whites—treat racial oppression as a commodity for

consumption is not surprising. It is a familiar form of black complicity

with racialized systems of control.

Many people are unaware that, although minstrel shows were

plainly designed to pander to white racism and to make whites feel

comfortable with—indeed, entertained by—racial oppression, African

Americans formed a large part of the black minstrels’ audience. In fact,

their numbers were so great in some areas that theater owners had to

relax rules segregating black patrons and restricting them to certain

areas of the theater.89

Historians have long debated why blacks would attend minstrel

shows when the images and content were so blatantly racist. Minstrels

T H E C R U E L   H A N D 2 1 7

projected a greatly romanticized and exaggerated image of black life on

plantations with cheerful, simple, grinning slaves always ready to sing,

dance, and please their masters. Some have suggested that perhaps

blacks felt in on the joke, laughing at the over-the-top characters from

a sense of “in- group recognition.”90 It has also been argued that per-

haps they felt some connection to elements of African culture that had

been suppressed and condemned for so long but were suddenly vis-

ible on stage, albeit in racist, exaggerated form.91 Undeniably, though,

one major draw for black audiences was simply seeing fellow African

Americans on stage. Black minstrels were largely viewed as celebrities,

earning more money and achieving more fame than African Americans

ever had before.92 Black minstrelsy was the first large-scale opportu-

nity for African Americans to enter show business. To some degree,

then, black minstrelsy—as degrading as it was—represented success.

It is possible that historians will one day look back on the imag-

es of black men in gangsta rap videos with a similar curiosity. Why

would these young men, who are targets of a brutal drug war declared

against them, put on a show—a spectacle—that romanticizes and

glorifies their criminalization? Why would these young men openly

endorse and perpetuate the very stereotypes that are invoked to justify

their second-class status, their exclusion from mainstream society?

The answers, historians may find, may not be that different from the

answers to the minstrelsy puzzle, reflecting the complex and painful

struggle to forge a positive identity in environments in which people

find it impossible to escape their stigma.

It is important to keep in mind, though, that many rappers and hip-

hop artists do not aim to glorify or romanticize gangsta life or culture.

They are simply telling the truth about their experience, in their own

way, in their own voice. Many of these artists articulate a sharp cri-

tique of American politics and culture, and some reject the misogyny

and violence preached by gangsta rappers. While rap is often associ-

ated with “gangsta life” in the mainstream press, the origins of rap and

2 1 8 T H E N E W J I M   C R O W

hip-hop culture are not rooted in outlaw ideology. When rap was born,

the early rap stars were not rapping about gangsta life, but “My Adi-

das” and good times in the ’hood in tunes like “Rapper’s Delight.” Rap

music changed after the War on Drugs shifted into high gear and thou-

sands of young, black men were suddenly swept off the streets and into

prisons. Violence flared in urban communities, not simply because of

the new drug—crack—but because of the massive crackdown, which

radically reshaped the traditional life course for young black men. As

a tidal wave of punitiveness, stigma, and despair washed over poor

communities of color, those who were demonized—not only in the

mainstream press but often in their own communities—did what all

stigmatized groups do: they struggled to preserve a positive identity

by embracing their stigma. Gangsta rap—while it may amount to little

more than a minstrel show when it appears on MTV today—has its

roots in the struggle for a positive identity among outcasts.

The Antidote

It is difficult to look at pictures of black people performing in min-

strel shows during the Jim Crow era. It is almost beyond belief that

at one time black people actually covered their faces with pitch-black

paint, covered their mouths with white paint drawn in an exagger-

ated, clownish smile, and pranced on stage for the entertainment and

delight of white audiences, who were tickled by the sight of a black

man happily portraying the worst racial stereotypes that justified slav-

ery and later Jim Crow. The images are so painful they can cause a

downright visceral reaction. The damage done by the minstrel’s com-

plicity in the Jim Crow regime was considerable. Even so, do we hate

the minstrel? Do we despise him? Or do we understand him as an

unfortunate expression of the times?

Most people of any race would probably condemn the minstrel show

but stop short of condemning the minstrel as a man. Pity, more than

T H E C R U E L   H A N D 2 19

contempt, seems the likely response. Why? With the benefit of hind-

sight, we can see the minstrel in his social context. By shuckin’ and

jivin’ for white audiences, he was mirroring to white audiences the

shame and contempt projected onto him. He might have made a decent

living that way—may even have been treated as a celebrity—but from

a distance, we can see the emptiness, the pain.

When the system of mass incarceration collapses (and if history is

any guide, it will), historians will undoubtedly look back and mar-

vel that such an extraordinarily comprehensive system of racialized

social control existed in the United States. How fascinating, they will

likely say, that a drug war was waged almost exclusively against poor

people of color— people already trapped in ghettos that lacked jobs

and decent schools. They were rounded up by the millions, packed

away in prisons, and when released, they were stigmatized for life,

denied the right to vote, and ushered into a world of discrimination.

Legally barred from employment, housing, and welfare benefits—and

saddled with thousands of dollars of debt— these people were shamed

and condemned for failing to hold together their families. They were

chastised for succumbing to depression and anger, and blamed for

landing back in prison. Historians will likely wonder how we could

describe the new caste system as a system of crime control, when it

is difficult to imagine a system better designed to create— rather than

prevent— crime.

None of this is to suggest that those who break the law bear no

responsibility for their conduct or exist merely as “products of their

environment.” To deny the individual agency of those caught up in

the system— their capacity to overcome seemingly impossible odds—

would be to deny an essential element of their humanity. We, as human

beings, are not simply organisms or animals responding to stimuli. We

have a higher self, a capacity for transcendence.

Yet our ability to exercise free will and transcend the most extraor-

dinary obstacles does not make the conditions of our life irrelevant.

2 2 0 T H E N E W J I M   C R O W

Most of us struggle and often fail to meet the biggest challenges of our

lives. Even the smaller challenges—breaking a bad habit or sticking to

a diet—often prove too difficult, even for those of us who are relatively

privileged and comfortable in our daily lives.

In fact, what is most remarkable about the hundreds of thousands

of people who return from prison to their communities each year is

not how many fail, but how many somehow manage to survive and

stay out of prison against all the odds. Considering the design of this

new system of control, it is astonishing that so many people labeled

criminals still manage to care for and feed their children, hold togeth-

er marriages, obtain employment, and start businesses. Perhaps most

heroic are those who, upon release, launch social justice organizations

that challenge the discrimination formerly incarcerated people face

and provide desperately needed support for those newly released from

prison. These heroes go largely unnoticed by politicians who prefer

to blame those who fail, rather than praise with admiration and awe

all those who somehow manage, despite seemingly insurmountable

hurdles, to survive.

As a society, our decision to heap shame and contempt upon those

who struggle and fail in a system designed to keep them locked up and

locked out says far more about ourselves than it does about them.

There is another path. Rather than shaming and condemning an

already deeply stigmatized group, we, collectively, can embrace

them—not necessarily their behavior, but them—their humanness. As

the saying goes, “You gotta hate the crime, but love the criminal.” This

is not a mere platitude; it is a prescription for liberation. If we had actu-

ally learned to show love, care, compassion, and concern across racial

lines during the Civil Rights Movement—rather than go colorblind—

mass incarceration would not exist today.

It was no ordinary Sunday morning when presidential candidate Barack Obama stepped to the podium at the Apostolic Church of
God in Chicago. It was Father’s Day. Hundreds of enthusiastic con-

gregants packed the pews at the overwhelmingly black church eager

to hear what the first black Democratic nominee for president of the

United States had to say.

The message was a familiar one: black men should be better fathers.

Too many are absent from their homes. For those in the audience,

Obama’s speech was an old tune sung by an exciting new perform-

er. His message of personal responsibility, particularly as it relates to

fatherhood, was anything but new; it had been delivered countless

times by black ministers in churches across America. The message had

also been delivered on a national stage by celebrities such as Bill Cosby

and Sidney Poitier. And the message had been delivered with great pas-

sion by Louis Farrakhan, who more than a decade earlier summoned

one million black men to Washington, DC, for a day of “atonement”

and recommitment to their families and communities.

The mainstream media, however, treated the event as big news, and

many pundits seemed surprised that the black congregants actually

applauded the message. For them, it was remarkable that black people

nodded in approval when Obama said: “If we are honest with our-

selves, we’ll admit that too many fathers are missing—missing from

5
T he Ne w Ji m   C r o w

2 2 2 T H E N E W J I M   C R O W

too many lives and too many homes. Too many fathers are MIA. Too

many fathers are AWOL. They have abandoned their responsibilities.

They’re acting like boys instead of men. And the foundations of our

families are weaker because of it. You and I know this is true every-

where, but nowhere is this more true than in the African American

community.”

The media did not ask—and Obama did not tell—where the missing

fathers might be found.

The following day, social critic and sociologist Michael Eric Dyson

published a critique of Obama’s speech in Time magazine. He pointed

out that the stereotype of black men being poor fathers may well be

false. Research by Boston College social psychologist Rebekah Levine

Coley found that black fathers not living at home are more likely to

keep in contact with their children than fathers of any other ethnic

or racial group. Dyson chided Obama for evoking a black stereotype

for political gain, pointing out that “Obama’s words may have been

spoken to black folk, but they were aimed at those whites still on the

fence about whom to send to the White House.”1 Dyson’s critique was

a fair one, but like other media commentators, he remained silent

about where all the absent black fathers could be found. He identi-

fied numerous social problems plaguing black families, such as high

levels of unemployment, discriminatory mortgage practices, and the

gutting of early-childhood learning programs. Not a word was said

about prisons.

The public discourse regarding “missing black fathers” closely par-

allels the debate about the lack of eligible black men for marriage. The

majority of black women are unmarried today, including 70 percent of

professional black women.2 “Where have all the black men gone?” is a

common refrain heard among black women frustrated in their efforts

to find life partners.

The sense that black men have disappeared is rooted in reality. The

U.S. Census Bureau reported in 2002 that there are nearly 3 million

T H E N E W J I M   C R O W 2 2 3

more black adult women than men in black communities across the

United States, a gender gap of 26 percent.3 In many urban areas, the

gap is far worse, rising to more than 37 percent in places like New

York City. The comparable disparity for whites in the United States is

8 percent.4 Although a million black men can be found in prisons and

jails, public acknowledgment of the role of the criminal justice system

in “disappearing” black men is surprisingly rare. Even in the black

media—which is generally more willing to raise and tackle issues

related to criminal justice—an eerie silence can often be found.5

Ebony magazine, for example, ran an article in December 2006 enti-

tled “Where Have the Black Men Gone?” The author posed the popular

question but never answered it.6 He suggested we will find our black

men when we rediscover God, family, and self-respect. A more cynical

approach was taken by Tyra Banks, the popular talk show host, who

devoted a show in May 2008 to the recurring question, “Where Have

All the Good Black Men Gone?” She wondered aloud whether black

women are unable to find “good black men” because too many of them

are gay or dating white women. No mention was made of the War on

Drugs or mass incarceration.

The fact that Barack Obama can give a speech on Father’s Day dedi-

cated to the subject of fathers who are “AWOL” without ever acknowl-

edging that the majority of young black men in many large urban areas

are currently under the control of the criminal justice system is dis-

turbing, to say the least. What is more problematic, though, is that

hardly anyone in the mainstream media noticed the oversight. One

might not expect serious analysis from Tyra Banks, but shouldn’t we

expect a bit more from The New York Times and CNN? Hundreds of

thousands of black men are unable to be good fathers for their chil-

dren, not because of a lack of commitment or desire but because they

are warehoused in prisons, locked in cages. They did not walk out on

their families voluntarily; they were taken away in handcuffs, often

due to a massive federal program known as the War on Drugs.

2 2 4 T H E N E W J I M   C R O W

More African American adults are under correctional control

today—in prison or jail, on probation or parole—than were enslaved

in 1850, a decade before the Civil War began.7 The mass incarceration

of people of color is a big part of the reason that a black child born

today is less likely to be raised by both parents than a black child

born during slavery.8 The absence of black fathers from families across

America is not simply a function of laziness, immaturity, or too much

time watching Sports Center. Thousands of black men have disap-

peared into prisons and jails, locked away for drug crimes that are

largely ignored when committed by whites.

The clock has been turned back on racial progress in America,

though scarcely anyone seems to notice. All eyes are fixed on people

like Barack Obama and Oprah Winfrey, who have defied the odds and

risen to power, fame, and fortune. For those left behind, especially

those within prison walls, the celebration of racial triumph in America

must seem a tad premature. More black men are imprisoned today

than at any other moment in our nation’s history. More are disenfran-

chised today than in 1870, the year the Fifteenth Amendment was rati-

fied prohibiting laws that explicitly deny the right to vote on the basis

of race.9 Young black men today may be just as likely to suffer dis-

crimination in employment, housing, public benefits, and jury service

as a black man in the Jim Crow era—discrimination that is perfectly

legal, because it is based on one’s criminal record.

This is the new normal, the new racial equilibrium.

The launching of the War on Drugs and the initial construction

of the new system required the expenditure of tremendous political

initiative and resources. Media campaigns were waged; politicians

blasted “soft” judges and enacted harsh sentencing laws; poor people

of color were vilified. The system now, however, requires very little

maintenance or justification. In fact, if you are white and middle class,

you might not even realize the drug war is still going on. Most high

school and college students today have no recollection of the political

T H E N E W J I M   C R O W 2 2 5

and media frenzy surrounding the drug war in the early years. They

were young children when the war was declared, or not even born yet.

Crack is out; terrorism is in.

Today, the political fanfare and the vehement, racialized rhetoric

regarding crime and drugs are no longer necessary. Mass incarceration

has been normalized, and all of the racial stereotypes and assumptions

that gave rise to the system are now embraced (or at least internalized)

by people of all colors, from all walks of life, and in every major politi-

cal party. We may wonder aloud, “where have the black men gone?”

but deep down we already know. It is simply taken for granted that,

in cities like Baltimore and Chicago, the vast majority of young black

men are currently under the control of the criminal justice system or

branded criminals for life. This extraordinary circumstance— unheard

of in the rest of the world—is treated here in America as a basic fact of

life, as normal as separate water fountains were just a half century ago.

States of Denial

The claim that we really know where all the black men have gone may

inspire considerable doubt. If we know, why do we feign ignorance?

Could it be that most people really don’t know? Is it possible that

the roundup, lockdown, and exclusion of black men en masse from

the body politic has occurred largely unnoticed? The answer is yes

and no.

Much has been written about the ways in which people manage to

deny, even to themselves, that extraordinary atrocities, racial oppres-

sion, and other forms of human suffering have occurred or are occur-

ring. Criminologist Stanley Cohen wrote perhaps the most important

book on the subject, States of Denial. The book examines how individ-

uals and institutions—victims, perpetrators, and bystanders—know

about yet deny the occurrence of oppressive acts. They see only what

they want to see and wear blinders to avoid seeing the rest. This has

2 2 6 T H E N E W J I M   C R O W

been true about slavery, genocide, torture, and every form of systemic

oppression.

Cohen emphasizes that denial, though deplorable, is complicated. It

is not simply a matter of refusing to acknowledge an obvious, though

uncomfortable, truth. Many people “know” and “not-know” the truth

about human suffering at the same time. In his words, “Denial may be

neither a matter of telling the truth nor intentionally telling a lie. There

seem to be states of mind, or even whole cultures, in which we know

and don’t know at the same time.”10

Today, most Americans know and don’t know the truth about mass

incarceration. For more than three decades, images of black men in

handcuffs have been a regular staple of the evening news. We know

that large numbers of black men have been locked in cages. In fact, it

is precisely because we know that black and brown people are far more

likely to be imprisoned that we, as a nation, have not cared too much

about it. We tell ourselves they “deserve” their fate, even though we

know—and don’t know—that whites are just as likely to commit many

crimes, especially drug crimes. We know that people released from

prison face a lifetime of discrimination, scorn, and exclusion, and yet

we claim not to know that an undercaste exists. We know and we don’t

know at the same time.

Upon reflection, it is relatively easy to understand how Americans

come to deny the evils of mass incarceration. Denial is facilitated by

persistent racial segregation in housing and schools, by political dema-

goguery, by racialized media imagery, and by the ease of changing one’s

perception of reality simply by changing television channels. There is

little reason to doubt the prevailing “common sense” that black and

brown men have been locked up en masse merely in response to crime

rates when one’s sources of information are mainstream media outlets.

In many respects, the reality of mass incarceration is easier to avoid

knowing than the injustices and sufferings associated with slavery or

Jim Crow. Those confined to prisons are out of sight and out of mind;

T H E N E W J I M   C R O W 2 2 7

once released, they are typically confined to ghettos. Most Americans

only come to “know” about the people cycling in and out of prisons

through fictional police dramas, music videos, gangsta rap, and “true”

accounts of ghetto experience on the evening news. These racialized

narratives tend to confirm and reinforce the prevailing public con-

sensus that we need not care about “those people”; they deserve what

they get.

Of all the reasons that we fail to know the truth about mass incar-

ceration, though, one stands out: a profound misunderstanding

regarding how racial oppression actually works. If someone were to

visit the United States from another country (or another planet) and

ask, “is the U.S. criminal justice system some kind of tool of racial

control?” most Americans would swiftly deny it. Numerous reasons

would leap to mind why that could not possibly be the case. The visi-

tor would be told that crime rates, black culture, or bad schools were

to blame. “The system is not run by a bunch of racists,” the apologist

would explain. “It’s run by people who are trying to fight crime.” That

response is predictable because most people assume that racism, and

racial systems generally, are fundamentally a function of attitudes.

Because mass incarceration is officially colorblind, it seems inconceiv-

able that the system could function much like a racial caste system.

The widespread and mistaken belief that racial animus is necessary

for the creation and maintenance of racialized systems of social con-

trol is the most important reason that we, as a nation, have remained

in deep denial.

The misunderstanding is not surprising. As a society, our collec-

tive understanding of racism has been powerfully influenced by the

shocking images of the Jim Crow era and the struggle for civil rights.

When we think of racism we think of Governor Wallace of Alabama

blocking the schoolhouse door; we think of water hoses, lynchings,

racial epithets, and “whites only” signs. These images make it easy

to forget that many wonderful, good-hearted white people who were

2 2 8 T H E N E W J I M   C R O W

generous to others, respectful of their neighbors, and even kind to

their black maids, gardeners, or shoe shiners—and wished them

well—nevertheless went to the polls and voted for racial segrega-

tion. Many whites who supported Jim Crow justified it on paternalist

grounds, actually believing they were doing blacks a favor or believ-

ing the time was not yet “right” for equality. The disturbing images

from the Jim Crow era also make it easy to forget that many African

Americans were complicit in the Jim Crow system, profiting from it

directly or indirectly or keeping their objections quiet out of fear of

the repercussions. Our understanding of racism is therefore shaped

by the most extreme expressions of individual bigotry, not by the way

in which it functions naturally, almost invisibly (and sometimes with

genuinely benign intent), when it is embedded in the structure of a

social system.

The unfortunate reality we must face is that racism manifests itself

not only in individual attitudes and stereotypes, but also in the basic

structure of society. Academics have developed complicated theories

and obscure jargon in an effort to describe what is now referred to as

structural racism, yet the concept is fairly straightforward. One the-

orist, Iris Marion Young, relying on a famous “birdcage” metaphor,

explains it this way: if one thinks about racism by examining only one

wire of the cage, or one form of disadvantage, it is difficult to under-

stand how and why the bird is trapped. Only a large number of wires

arranged in a specific way, and connected to one another, serve to

enclose the bird and to ensure that it cannot escape.11

What is particularly important to keep in mind is that any given

wire of the cage may or may not be specifically developed for the pur-

pose of trapping the bird, yet it still operates (together with the other

wires) to restrict its freedom. By the same token, not every aspect of

a racial caste system needs to be developed for the specific purpose

of controlling black people in order for it to operate (together with

T H E N E W J I M   C R O W 2 2 9

other laws, institutions, and practices) to trap them at the bottom of

a racial hierarchy. In the system of mass incarceration, a wide variety

of laws, institutions, and practices— ranging from racial profiling to

biased sentencing policies, political disenfranchisement, and legal-

ized employment discrimination—trap African Americans in a virtual

(and literal) cage.

Fortunately, as Marilyn Frye has noted, every birdcage has a door,

and every birdcage can be broken and can corrode.12 What is most con-

cerning about the new racial caste system, however, is that it may prove

to be more durable than its predecessors. Because this new system is

not explicitly based on race, it is easier to defend on seemingly neutral

grounds. And while all previous methods of control have blamed the

victim in one way or another, the current system invites observers to

imagine that those who are trapped in the system were free to avoid

second-class status or permanent banishment from society simply by

choosing not to commit crimes. It is far more convenient to imagine

that a majority of young African American men in urban areas freely

chose a life of crime than to accept the real possibility that their lives

were structured in a way that virtually guaranteed their early admis-

sion into a system from which they can never escape. Most people are

willing to acknowledge the existence of the cage but insist that a door

has been left open.

One way of understanding our current system of mass incarcera-

tion is to think of it as a birdcage with a locked door. It is a set of

structural arrangements that locks a racially distinct group into a

subordinate political, social, and economic position, effectively creat-

ing a second-class citizenship. Those trapped within the system are

not merely disadvantaged in the sense that they are competing on an

unequal playing field or face additional hurdles to political or eco-

nomic success; rather, the system itself is structured to lock them into

a subordinate position.

2 3 0 T H E N E W J I M   C R O W

How It Works

Precisely how the system of mass incarceration works to trap African

Americans in a virtual (and literal) cage can best be understood by

viewing the system as a whole. In earlier chapters, we considered vari-

ous wires of the cage in isolation; here, we put the pieces together, step

back, and view the cage in its entirety. Only when we view the cage

from a distance can we disengage from the maze of rationalizations

that are offered for each wire and see how the entire apparatus oper-

ates to keep African Americans perpetually trapped.

This, in brief, is how the system works: the War on Drugs is a vehicle

through which extraordinary numbers of black men are forced into the

cage. The entrapment occurs in three distinct phases, each of which

has been explored earlier, but a brief review is useful here. The first

stage is the roundup. Vast numbers of people are swept into the crimi-

nal justice system by the police, who conduct drug operations primar-

ily in poor communities of color. They are rewarded in cash—through

drug forfeiture laws and federal grant programs—for rounding up as

many people as possible, and they operate unconstrained by constitu-

tional rules of procedure that once were considered inviolate. Police

can stop, interrogate, and search anyone they choose for drug investi-

gations, provided they get “consent.” Because there is no meaningful

check on the exercise of police discretion, racial biases are granted free

rein. In fact, police are allowed to rely on race as a factor in selecting

whom to stop and search (even though people of color are no more

likely to be guilty of drug crimes than whites)—effectively guarantee-

ing that those who are swept into the system are primarily black and

brown.

The conviction marks the beginning of the second phase: the peri-

od of formal control. Once arrested, defendants are generally denied

meaningful legal representation and pressured to plead guilty whether

they are or not. Prosecutors are free to “load up” defendants with extra

T H E N E W J I M   C R O W 2 3 1

charges, and their decisions cannot be challenged for racial bias. Once

convicted, due to the drug war’s harsh sentencing laws, people con-

victed of drug offenses in the United States spend more time under the

criminal justice system’s formal control—in jail or prison, on probation

or parole—than people anywhere else in the world. While under formal

control, virtually every aspect of one’s life is regulated and monitored

by the system, and any form of resistance or disobedience is subject

to swift sanction. This period of control may last a lifetime, even for

those convicted of extremely minor, nonviolent offenses, but the vast

majority of those swept into the system are eventually released. They

are transferred from their prison cells to a much larger, invisible cage.

The final stage has been dubbed by some advocates as the “period

of invisible punishment.”13 This term, first coined by Jeremy Travis,

is meant to describe the unique set of criminal sanctions that are

imposed on individuals after they step outside the prison gates, a form

of punishment that operates largely outside of public view and takes

effect outside the traditional sentencing framework. These sanctions

are imposed by operation of law rather than decisions of a sentencing

judge, yet they often have a greater impact on one’s life course than the

months or years one actually spends behind bars. These laws oper-

ate collectively to ensure that the vast majority of people convicted of

crimes will never integrate into mainstream, white society. They will

be discriminated against, legally, for the rest of their lives—denied

employment, housing, education, and public benefits. Unable to sur-

mount these obstacles, most will eventually return to prison and then

be released again, caught in a closed circuit of perpetual marginality.

In recent years, advocates and politicians have called for greater

resources devoted to the problem of “prisoner re-entry,” in view of

the unprecedented numbers of people who are released from prison

and returned to their communities every year. While the terminology

is well intentioned, it utterly fails to convey the gravity of the situa-

tion facing people upon their release from prison. People who have

2 3 2 T H E N E W J I M   C R O W

been convicted of felonies almost never truly re-enter the society they

inhabited prior to their conviction. Instead, they enter a separate soci-

ety, a world hidden from public view, governed by a set of oppressive

and discriminatory rules and laws that do not apply to everyone else.

They become members of an undercaste—an enormous population of

predominately black and brown people who, because of the drug war,

are denied basic rights and privileges of American citizenship and are

permanently relegated to an inferior status. This is the final phase, and

there is no going back.

Nothing New?

Some might argue that as disturbing as this system appears to be, there

is nothing particularly new about mass incarceration; it is merely a

continuation of past drug wars and biased law enforcement practices.

Racial bias in our criminal justice system is simply an old problem that

has gotten worse, and the social excommunication of “criminals” has

a long history; it is not a recent invention. There is some merit to this

argument.

Race has always influenced the administration of justice in the Unit-

ed States. Since the day the first prison opened, people of color have

been disproportionately represented behind bars. In fact, the very first

person admitted to a U.S. penitentiary was a “light skinned Negro in

excellent health,” described by an observer as “one who was born of a

degraded and depressed race, and had never experienced anything but

indifference and harshness.”14 Biased police practices are also nothing

new, a recurring theme of African American experience since blacks

were targeted by the police as suspected runaway slaves. And every

drug war that has ever been waged in the United States—including

alcohol prohibition—has been tainted or driven by racial bias.15 Even

postconviction penalties have a long history. The American colonies

passed laws barring people convicted of crimes from a wide variety of

T H E N E W J I M   C R O W 2 3 3

jobs and benefits, automatically dissolving their marriages and deny-

ing them the right to enter contracts. These legislatures were follow-

ing a long tradition, dating back to ancient Greece, of treating those

convicted of crimes as less than full citizens. Although many collateral

sanctions were repealed by the late 1970s, arguably the drug war sim-

ply revived and expanded a tradition that has ancient roots, a tradition

independent of the legacy of American slavery.

In view of this history and considering the lack of originality in

many of the tactics and practices employed in the era of mass incar-

ceration, there is good reason to believe that the latest drug war is just

another drug war corrupted by racial and ethnic bias. But this view is

correct only to a point.

In the past, the criminal justice system, as punitive as it may have

been during various wars on crime and drugs, affected only a rela-

tively small percentage of the population. Because civil penalties and

sanctions imposed on people with criminal records applied only to a

few, they never operated as a comprehensive system of control over

any racially or ethnically defined population. Racial minorities were

always overrepresented in the criminal justice system, but as sociol-

ogists have noted, until the mid- 1980s, the system was marginal to

communities of color. While young minority men with little school-

ing have always had relatively high rates of incarceration, “before the

1980s the penal system was not a dominant presence in the disadvan-

taged neighborhoods.”16

Today, the War on Drugs has given birth to a system of mass incar-

ceration that governs not just a small fraction of a racial or ethnic

minority but entire communities of color. In ghetto communities, near-

ly everyone is either directly or indirectly subject to the new caste sys-

tem. The system serves to redefine the terms of the relationship of poor

people of color and their communities to mainstream, white society,

ensuring their subordinate and marginal status. The criminal and civil

sanctions that were once reserved for a tiny minority are now used to

2 3 4 T H E N E W J I M   C R O W

control and oppress a racially defined majority in many communities,

and the systematic manner in which the control is achieved reflects

not just a difference in scale. The nature of the criminal justice system

has changed. It is no longer concerned primarily with the prevention

and punishment of crime, but rather with the management and control

of the dispossessed. Prior drug wars were ancillary to the prevailing

caste system. This time the drug war is the system of control.

If you doubt that this is the case, consider the effect of the war on

the ground, in specific locales. Take Chicago, Illinois, for example.

Chicago is widely considered to be one of America’s most diverse and

vibrant cities. It has boasted black mayors, black police chiefs, black

legislators, and is home to the nation’s first black president. It has a

thriving economy, a growing Latino community, and a substantial

black middle class. Yet as the Chicago Urban League reported in 2002,

there is another story to be told.17

If Martin Luther King Jr. were to return miraculously to Chicago,

some forty years after bringing his Freedom Movement to the city, he

would be saddened to discover that the same issues on which he origi-

nally focused still produce stark patterns of racial inequality, segrega-

tion, and poverty. He would also be struck by the dramatically elevated

significance of one particular institutional force in the perpetuation

and deepening of those patterns: the criminal justice system. In the

few short decades since King’s death, a new regime of racially disparate

mass incarceration has emerged in Chicago and become the primary

mechanism for racial oppression and the denial of equal opportunity.

In Chicago, like the rest of the country, the War on Drugs is an

engine of mass incarceration, as well as a major cause of gross racial

disparities throughout the system. About 90 percent of those sentenced

to prison for a drug offense in Illinois are African American.18 White

drug users and dealers are rarely arrested, and when they are, they are

treated more favorably at every stage of the criminal justice process,

including plea bargaining and sentencing.19 Whites are consistently

T H E N E W J I M   C R O W 2 3 5

more likely to avoid prison and felony charges, even when they are

repeatedly caught with drugs.20 Black people, by contrast, are routine-

ly labeled felons and released into a permanent racial undercaste.

The total population of black males in Chicago with a felony record

(inside and outside prisons) is equivalent to 55 percent of the black

adult male population and an astonishing 80 percent of the adult

black male workforce in the Chicago area.21 This stunning develop-

ment reflects the dramatic increase in the number and race of those

sent to prison for drug crimes. From the Chicago region alone, the

number of those annually sent to prison for drug crimes increased

almost 2,000 percent, from 469 in 1985 to 8,755 in 2005.22 That figure,

of course, does not include the thousands who avoid prison but are

arrested, convicted, and sentenced to jail or probation. They, too, have

criminal records that will follow them for life. More than 70 percent

of all criminal cases in the Chicago area involve a class D felony drug

possession charge, the lowest-level felony charge.23 Those who do go

to prison find little freedom upon release.

When people are released from Illinois prisons, they are given as

little as $10 in “gate money” and a bus ticket to anywhere in the United

States. Most return to impoverished neighborhoods in the Chicago

area, bringing few resources and bearing the stigma of their prison

record.24 In Chicago, as in most cities across the country, people with

criminal records are banned or severely restricted from employment in

a large number of professions, job categories, and fields by professional

licensing statutes, rules, and practices that discriminate against poten-

tial employees with felony records. According to a study conducted by

the DePaul University College of Law in 2000, of the then–ninety-eight

occupations requiring licenses in Illinois, fifty-seven placed stipula-

tions and/or restrictions on applicants with a criminal record.25 Even

when not barred by law from holding specific jobs, formerly incarcer-

ated and convicted people in Chicago find it extraordinarily difficult

to find employers who will hire them, regardless of the nature of their

2 3 6 T H E N E W J I M   C R O W

conviction. They are also routinely denied public housing and wel-

fare benefits, and they find it increasingly difficult to obtain education,

especially now that funding for public education has been hard-hit,

due to exploding prison budgets.

The impact of the new caste system is most tragically felt among the

young. In Chicago (as in other cities across the United States), young

black men are more likely to go to prison than to college.26 As of June

2001, there were nearly twenty thousand more black men in the Illi-

nois state prison system than enrolled in the state’s public universi-

ties.27 In fact, there were more black men in the state’s correctional

facilities that year just on drug charges than the total number of black

men enrolled in undergraduate degree programs in state universities.28

To put the crisis in even sharper focus, consider this: just 992 black

men received a bachelor’s degree from Illinois state universities in

1999, while roughly 7,000 black men were released from the state pris-

on system the following year just for drug offenses.29 The young men

who go to prison rather than college face a lifetime of closed doors,

discrimination, and ostracism. Their plight is not what we hear about

on the evening news, however. Sadly, like the racial caste systems that

preceded it, the system of mass incarceration now seems normal and

natural to most, a regrettable necessity.

Mapping the Parallels

Those cycling in and out of Illinois prisons today are members of

America’s new racial undercaste. The United States has almost always

had a racial undercaste—a group defined wholly or largely by race

that is permanently locked out of mainstream, white society by law,

custom, and practice. The reasons and justifications change over time,

as each new caste system reflects and adapts to changes in the social,

political, and economic context. What is most striking about the

design of the current caste system, though, is how closely it resembles

T H E N E W J I M   C R O W 2 3 7

its predecessor. There are important differences between mass incar-

ceration and Jim Crow, to be sure—many of which will be discussed

later—but when we step back and view the system as a whole, there

is a profound sense of déjà vu. There is a familiar stigma and shame.

There is an elaborate system of control, complete with political disen-

franchisement and legalized discrimination in every major realm of

economic and social life. And there is the production of racial meaning

and racial boundaries.

Many of these parallels have been discussed at some length in ear-

lier chapters; others have yet to be explored. Listed below are several

of the most obvious similarities between Jim Crow and mass incar-

ceration, followed by a discussion of a few parallels that have not been

discussed so far. Let’s begin with the historical parallels.

Historical parallels. Jim Crow and mass incarceration have similar

political origins. As described in chapter 1, both caste systems were

born, in part, due to a desire among white elites to exploit the resent-

ments, vulnerabilities, and racial biases of poor and working- class

whites for political or economic gain. Segregation laws were proposed

as part of a deliberate and strategic effort to deflect anger and hos-

tility that had been brewing against the white elite away from them

and toward African Americans. The birth of mass incarceration can

be traced to a similar political dynamic. Conservatives in the 1970s

and 1980s sought to appeal to the racial biases and economic vul-

nerabilities of poor and working- class whites through racially coded

rhetoric on crime and welfare. In both cases, the racial opportunists

offered few, if any, economic reforms to address the legitimate eco-

nomic anxieties of poor and working- class whites, proposing instead

a crackdown on the racially defined “others.” In the early years of Jim

Crow, conservative white elites competed with each other by passing

ever more stringent and oppressive Jim Crow legislation. A century

later, politicians in the early years of the drug war competed with each

other to prove who could be tougher on crime by passing ever harsher

2 3 8 T H E N E W J I M   C R O W

drug laws—a thinly veiled effort to appeal to poor and working-class

whites who, once again, proved they were willing to forego economic

and structural reform in exchange for an apparent effort to put blacks

back “in their place.”30

Legalized discrimination. The most obvious parallel between Jim

Crow and mass incarceration is legalized discrimination. During Black

History Month, Americans congratulate themselves for having put

an end to discrimination against African Americans in employment,

housing, public benefits, and public accommodations. Schoolchildren

wonder out loud how discrimination could ever have been legal in this

great land of ours. Rarely are they told that it is still legal. Many of

the forms of discrimination that relegated African Americans to an

inferior caste during Jim Crow continue to apply to huge segments of

the black population today—provided they are first labeled felons. If

they are branded felons by the time they reach the age of twenty-one

(as many of them are), they are subject to legalized discrimination for

their entire adult lives. The forms of discrimination that apply to peo-

ple labeled criminals, described in some detail in chapter 4, mean that,

once people are released from jail or prison, they enter a parallel social

universe—much like Jim Crow—in which discrimination in nearly

every aspect of social, political, and economic life is perfectly legal.

Large majorities of black men in cities across the United States are

once again subject to legalized discrimination effectively barring them

from full integration into mainstream, white society. Mass incarcera-

tion has nullified many of the gains of the Civil Rights Movement, put-

ting millions of black men back in a position reminiscent of Jim Crow.

Political disenfranchisement. During the Jim Crow era, African

Americans were denied the right to vote through poll taxes, literacy

tests, grandfather clauses, and felon disenfranchisement laws, even

though the Fifteenth Amendment to the U.S. Constitution specifi-

cally provides that “the right of citizens of the United States to vote

shall not be denied . . . on account of race, color, or previous con-

T H E N E W J I M   C R O W 2 3 9

dition of servitude.” Formally race- neutral devices were adopted

to achieve the goal of an all- white electorate without violating the

terms of the Fifteenth Amendment. The devices worked quite well.

Because African Americans were poor, they frequently could not pay

poll taxes. And because they had been denied access to education,

they could not pass literacy tests. Grandfather clauses allowed whites

to vote even if they couldn’t meet the requirements, as long as their

ancestors had been able to vote. Finally, because blacks were dispro-

portionately charged with felonies—in fact, some crimes were spe-

cifically defined as felonies with the goal of eliminating blacks from

the electorate— felon disenfranchisement laws effectively suppressed

the black vote as well.31

Following the collapse of Jim Crow, all of the race-neutral devic-

es for excluding blacks from the electorate were eliminated through

litigation or legislation, except felon disenfranchisement laws. Some

courts have found that these laws have “lost their discriminatory

taint” because they have been amended since the collapse of Jim Crow;

other courts have allowed the laws to stand because overt racial bias is

absent from the legislative record.32 The failure of our legal system to

eradicate all of the tactics adopted during the Jim Crow era to suppress

the black vote has major implications today. Felon disenfranchisement

laws have been more effective in eliminating black voters in the age

of mass incarceration than they were during Jim Crow. Less than two

decades after the War on Drugs began, one in seven black men nation-

ally had lost the right to vote, and as many as one in four in those

states with the highest African American disenfranchisement rate.33

These figures may understate the impact of felon disenfranchisement,

because they do not take into account the millions of people who can-

not vote in states that require people with felony convictions to pay

fines or fees before their voting rights can be restored—the new poll

tax. As legal scholar Pamela Karlan has observed, “felony disenfran-

chisement has decimated the potential black electorate.”34

2 4 0 T H E N E W J I M   C R O W

It is worthy of note, however, that the exclusion of black voters from

polling booths is not the only way in which black political power has

been suppressed. Another dimension of disenfranchisement echoes

not so much Jim Crow as slavery. Under the usual-residence rule,

the Census Bureau counts imprisoned individuals as residents of the

jurisdiction in which they are incarcerated. Because most new prison

construction occurs in predominately white, rural areas, these com-

munities benefit from inflated population totals at the expense of the

urban, overwhelmingly minority communities from which people in

prison frequently come.35 This has enormous consequences for the

redistricting process. White rural communities that house prisons

wind up with more people in state legislatures representing them, while

poor communities of color lose representatives because it appears their

population has declined. This policy is disturbingly reminiscent of the

three-fifths clause in the original Constitution, which enhanced the

political clout of slaveholding states by including 60 percent of slaves

in the population base for calculating Congressional seats and elec-

toral votes, even though they could not vote.

Exclusion from juries. Another clear parallel between mass incar-

ceration and Jim Crow is the systematic exclusion of blacks from

juries. One hallmark of the Jim Crow era was all-white juries trying

black defendants in the South. Although the exclusion of jurors on

the basis of race has been illegal since 1880, as a practical matter, the

removal of prospective black jurors through race-based peremptory

strikes was sanctioned by the Supreme Court until 1985, when the

Court ruled in Batson v. Kentucky that racially biased strikes violate

the equal protection clause of the Fourteenth Amendment.36 Today

defendants face a situation highly similar to the one they faced a cen-

tury ago. As described in chapter 3, a formal prohibition against race-

based peremptory strikes does exist; as a practical matter, however, the

Court has tolerated the systematic exclusion of blacks from juries by

allowing lower courts to accept “silly” and even “superstitious” reasons

T H E N E W J I M   C R O W 2 4 1

for striking black jurors.37 To make matters worse, a large percentage

of black men (about 30 percent) are automatically excluded from jury

service because they have been labeled felons.38 The combined effect of

race-based peremptory strikes and the automatic exclusion of people

with felonies from juries has put black defendants in a familiar place—

in a courtroom in shackles, facing an all-white jury.

Closing the courthouse doors. The parallels between mass incar-

ceration and Jim Crow extend all the way to the U.S. Supreme Court.

Over the years, the Supreme Court has followed a fairly consistent pat-

tern in responding to racial caste systems, first protecting them and

then, after dramatic shifts in the political and social climate, disman-

tling these systems of control and some of their vestiges. In Dred Scott

v. Sanford, the Supreme Court immunized the institution of slavery

from legal challenge on the grounds that African Americans were not

citizens, and in Plessy v. Ferguson, the Court established the doctrine

of “separate but equal”—a legal fiction that protected the Jim Crow

system from judicial scrutiny for racial bias.

Currently, McCleskey v. Kemp and its progeny serve much the same

function as Dred Scott and Plessy. In McCleskey, the Supreme Court

demonstrated that it is once again in protection mode—firmly com-

mitted to the prevailing system of control. As chapter 3 demonstrat-

ed, the Court has closed the courthouse doors to claims of racial bias

at every stage of the criminal justice process, from stops and searches

to plea bargaining and sentencing. Mass incarceration is now off-

limits to challenges on the grounds of racial bias, much as its pre-

decessors were in their time. The new racial caste system operates

unimpeded by the Fourteenth Amendment and federal civil rights

legislation—laws designed to topple earlier systems of control. The

Supreme Court’s famous proclamation in 1857—“[the black man] has

no rights which the white man is bound to respect”—remains true to

a significant degree today, so long as the black man has been labeled

a felon.39

2 4 2 T H E N E W J I M   C R O W

Racial segregation. Although the parallels listed above should be

enough to give anyone pause, there are a number of other, less obvi-

ous, similarities between mass incarceration and Jim Crow that have

not been explored in earlier chapters. The creation and maintenance of

racial segregation is one example. As we know, Jim Crow laws mandat-

ed residential segregation, and blacks were relegated to the worst parts

of town. Roads literally stopped at the border of many black neigh-

borhoods, shifting from pavement to dirt. Water, sewer systems, and

other public services that supported the white areas of town frequently

did not extend to the black areas. The extreme poverty that plagued

blacks due to their legally sanctioned inferior status was largely invis-

ible to whites—so long as whites remained in their own neighbor-

hoods, which they were inclined to do. Racial segregation rendered

black experience largely invisible to whites, making it easier for whites

to maintain racial stereotypes about black values and culture. It also

made it easier to deny or ignore their suffering.

Mass incarceration functions similarly. It achieves racial segregation

by segregating people in prison—the majority of whom are black and

brown—from mainstream society. They are kept behind bars, typical-

ly more than a hundred miles from home.40 Even prisons—the actu-

al buildings—are a rare sight for many Americans, as they are often

located far from population centers. Although rural counties contain

only 20 percent of the U.S. population, 60 percent of new prison con-

struction occurs there.41 Incarcerated people are thus hidden from

public view—out of sight, out of mind. In a sense, imprisonment is

a far more extreme form of physical and residential segregation than

Jim Crow segregation. Rather than merely shunting black people to

the other side of town or corralling them in ghettos, mass incarcera-

tion locks them in cages. Bars and walls keep hundreds of thousands

of black and brown people away from mainstream society—a form of

apartheid unlike any the world has ever seen.

Prisons, however, are not the only vehicle for racial segregation. Seg-

T H E N E W J I M   C R O W 2 4 3

regation is also created and perpetuated by the flood of people who

return to ghetto communities from prisons each year. Because the drug

war has been waged almost exclusively in poor communities of color,

when people convicted of drug crimes are released, they are gener-

ally returned to racially segregated ghetto communities—the places

they call home. In many cities, the re- entry phenomenon is highly

concentrated in a small number of neighborhoods. According to one

study, during a twelve-year period, the number of people returning

from prison back home to “core counties”—those counties that con-

tain the inner city of a metropolitan area— tripled.42 The effects are

felt throughout the United States. In interviews with one hundred

residents of two Tallahassee, Florida, communities, researchers found

that nearly every one of them had experienced or expected to experi-

ence the return of a family member from prison.43 Similarly, a survey of

families living in the Robert Taylor Homes in Chicago found that the

majority of residents either had a family member in prison or expected

one to return from prison within the next two years.44 Fully 70 percent

of men between the ages of eighteen and forty-five in the impoverished

and overwhelmingly black North Lawndale neighborhood on Chica-

go’s West Side are saddled for life with a criminal record.45 The majority

(60 percent) were incarcerated for drug offenses.46 These neighbor-

hoods are a minefield for people on parole, for a standard condition

of parole is a promise not to associate with anyone who has a felony

conviction. As Paula Wolff, a senior executive at Chicago Metropolis

2020 observes, in these ghetto neighborhoods, “It is hard for a parolee

to walk to the corner store to get a carton of milk without being subject

to a parole violation.” 47

By contrast, whites—even poor whites—are far less likely to be

imprisoned for drug offenses. And when they are released from prison,

they rarely find themselves in the ghetto. The white poor have a vastly

different experience in America than do poor people of color, as they

are rarely relegated to racially segregated urban areas characterized by

2 4 4 T H E N E W J I M   C R O W

intense poverty. In New York City, one study found that 70 percent of

the city’s poor black and Latino residents live in high-poverty neigh-

borhoods, whereas 70 percent of the city’s poor whites live in nonpov-

erty neighborhoods—communities that have significant resources,

including jobs, schools, banks, and grocery stores.48 Nationwide,

nearly seven out of eight people living in high-poverty urban areas are

members of a minority group.49

Mass incarceration thus perpetuates and deepens pre-existing pat-

terns of racial segregation and isolation, not just by removing people of

color from society and putting them in prisons, but by dumping them

back into ghettos upon their release. Youth of color who might have

escaped their ghetto communities—or helped to transform them—if

they had been given a fair shot in life and not been labeled felons—

instead find themselves trapped in a closed circuit of perpetual mar-

ginality, circulating between ghetto and prison.50

The racially segregated, poverty-stricken ghettos that exist in inner-

city communities across America would not exist today but for racially

biased government policies for which there has never been meaningful

redress.51 Yet every year, hundreds of thousands of poor people of col-

or who have been targeted by the War on Drugs are forced to return to

these racially segregated communities—neighborhoods still crippled

by the legacy of an earlier system of control. As a practical matter, they

have no other choice. In this way, mass incarceration, like its predeces-

sor Jim Crow, creates and maintains racial segregation.

Symbolic production of race. Arguably the most important parallel

between mass incarceration and Jim Crow is that both have served to

define the meaning and significance of race in America. Indeed, a prima-

ry function of any racial caste system is to define the meaning of race in

its time. Slavery defined what it meant to be black (a slave), and Jim Crow

defined what it meant to be black (a second-class citizen). Today mass

incarceration defines the meaning of blackness in America: black people,

especially black men, are criminals. That is what it means to be black.

T H E N E W J I M   C R O W 2 4 5

The temptation is to insist that black men “choose” to be criminals;

the system does not make them criminals, at least not in the way that

slavery made blacks slaves or Jim Crow made them second- class citi-

zens. The myth of choice here is seductive, but it should be resisted.

African Americans are not significantly more likely to use or sell pro-

hibited drugs than whites, but they are made criminals at drastically

higher rates for precisely the same conduct. In fact, studies suggest that

white professionals may be the most likely of any group to have engaged

in illegal drug activity in their lifetime, yet they are the least likely to

be made criminals.52 The prevalence of illegal drug activity among all

racial and ethnic groups creates a situation in which, due to limited law

enforcement resources and political constraints, some people are made

criminals while others are not. Black people have been made criminals

by the War on Drugs to a degree that dwarfs its effect on other racial

and ethnic groups, especially whites. And the process of making them

criminals has produced racial stigma.

Every racial caste system in the United States has produced racial

stigma. Mass incarceration is no exception. Racial stigma is produced

by defining negatively what it means to be black. The stigma of race

was once the shame of the slave; then it was the shame of the second-

class citizen; today the stigma of race is the shame of the criminal.

As described in chapter 4, many people labeled criminals describe

an existential angst associated with their pariah status, an angst that

casts a shadow over every aspect of their identity and social experi-

ence. The shame and stigma are not limited to the individual; they

extend to family members and friends—even whole communities are

stigmatized by the presence of those caught and thus tainted by the

system. Those stigmatized by convictions often adopt coping strategies

African Americans once employed during the Jim Crow era, including

lying about their own criminal history or the status of their family

members in an attempt to “pass” as someone who will be welcomed by

mainstream society.

2 4 6 T H E N E W J I M   C R O W

The critical point here is that, for black men, the stigma of being a

“criminal” in the era of mass incarceration is fundamentally a racial

stigma. This is not to say stigma is absent for white people convicted of

crimes; it is present and powerful. Rather, the point is that the stigma

of criminality for whites is different—it is a nonracial stigma.

An experiment may help to illustrate how and why this is the case.

Say the following to nearly anyone and watch the reaction: “We really

need to do something about the problem of white crime.” Laughter is a

likely response. The term white crime is nonsensical in the era of mass

incarceration, unless one is really referring to white-collar crime, in

which case the term is understood to mean the types of crimes that

seemingly respectable white people commit in the comfort of fancy

offices. Because the term white crime lacks social meaning, the term

white criminal is also perplexing. In that formulation, white seems to

qualify the term criminal—as if to say, “he’s a criminal but not that

kind of criminal.” Or, he’s not a real criminal—i.e., not what we mean

by criminal today.

In the era of mass incarceration, what it means to be a criminal in

our collective consciousness has become conflated with what it means

to be black, so the term white criminal is confounding, while the term

black criminal is nearly redundant. Recall the study discussed in chap-

ter 3 that revealed that when survey respondents were asked to picture

a drug criminal, nearly everyone pictured someone who was black.

This phenomenon helps to explain why studies indicate that white

people with a criminal record may actually have an easier time gaining

employment than African Americans without a criminal record.53 To

be a black man is to be thought of as a criminal, and to be a black crim-

inal is to be despicable—a social pariah. To be a white criminal is not

easy, by any means, but as a white criminal you are not a racial outcast,

though you may face many forms of social and economic exclusion.

Whiteness mitigates crime, whereas blackness defines the criminal.

As we have seen in earlier chapters, the conflation of blackness with

T H E N E W J I M   C R O W 2