How do we break down mass incarceration?

Today, we think that racism is someone else’s doing, that white supremacy is the work of those who marched in Charlottesville in August 2018. We may go so far as to acknowledge that our current president is a racist and white supremacist. But we white people don’t connect these labels to ourselves or to our communities. We are “good white people”, we believe. When we think of our society and or government, we may admit that some parts of the system need reform, but not based on race.

I finally got around to reading The New Jim Crow by Michelle Alexander, and I regret that I waited so long. Although I knew some of the individual facts she lays out in her book, Alexander ties them all together to disabuse us white people of our color-blind notions. “Race plays a major role–indeed, a defining role–in the current system, but not because of what is commonly understood as old-fashioned, hostile bigotry. This system of control depends far more on racial indifference (defined as a lack of compassion and caring about race and racial groups) than racial hostility.” Racial indifference–what I would call a culture of whiteness–allows us to imagine our society as color-blind when its outcomes are measurably based on race. In particular, Alexander focuses her critique on the system of mass incarceration, which she argues is the system responsible for maintaining racial hierarchy in our society.

Alexander connects mass incarceration to earlier systems of social control, the two most prominent of which were slavery and Jim Crow. Both of those systems depended on overt racial hostility and white supremacy. But after the civil rights movement transformed our society into one where it is unacceptable to hate or explicitly disadvantage others based on race, we created a new system based on racial indifference and whiteness.

Alexander tells us:

“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 violent crime rates in the African American community as a justification 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 little relationship to incarceration rates–which have soared during the past three decades regardless of whether violent crime was going up or down.”

The system of mass incarceration operates in three phases, all of which disadvantage people of color, especially Black men. In the roundup phase, police concentrate their drug crime reduction efforts on poor communities of color, arguing that that is where the crime is, when studies have repeatedly found that white, Black, and Latinx people actually use and sell drugs at similar rates. Due to implicit bias, police arrest Black men at higher rates for engaging in the same behavior as white people. And the federal government supports this work through grants to police departments for their work fighting the “War on Drugs.”

In the second phase, formal control, Black men are convicted at much higher rates and given longer sentences for the same crimes as white people. Some of these disparities are built into law, as are the infamous sentencing guidelines that direct judges to punish people much more severely for crack possession and sales than powdered cocaine, because crack is regarded as a “Black drug.” Other disparities are created because of the implicit biases held by judges and juries, leading to the inequalities in sentencing mentioned earlier. And there is no incentive for prosecutors to act well within or reform this system, because they have been granted absolute immunity by the Supreme Court, in the 1976 case Imbler v. Pachtman. When prosecutors overstep the bounds of the law in doing their jobs, they cannot be held legally accountable. Formal control also extends outside of prison, because people continue to be part of probation and parole programs long after they are physically released.

In the final phase of mass incarceration, invisible punishment, control continues even after an individual has finished probation or parole. There are laws in many states that people convicted of a felony cannot vote, serve on a jury, or earn a professional license. In most states, people convicted of a felony will have to check on box on employment applications for the rest of their lives indicating their conviction, which means that finding a job is nearly impossible. Without legal means of income, the system encourages people to re-offend.

As onerous as all of this is, this system also affects Black men who have never committed a crime because, Alexander tells us, “the stigma of race has become the stigma of criminality. Throughout the criminal justice system, as well as in our schools and public spaces, young + black + male is equated with reasonable suspicion, justifying the arrest, interrogation, search, and detention of thousands of African Americans every year, as well as their exclusion from employment and housing and the denial of educational opportunity. Because black youth are viewed as criminals, they face severe employment discrimination and are also ‘pushed out’ of schools through racially biased school discipline policies.” We have created a system that encourages young Black men to engage in criminal behavior, because the system discriminates against them either way.

To address these issues, we need to tear down discriminatory laws and policies, including mandatory minimum sentences, federal “Drug War” funding, and our focus on imprisonment rather than treatment for drug use and minor sales. Illinois recently became the 11th state to legalize possession and use of small amounts of marijuana, and the new law also included a provision to expunge the record of anyone convicted of possessing a small amount in the past. These are important first steps, but we cannot stop there. We must eliminate the “invisible punishment” Alexander discusses by repealing laws that prevent individuals with felony convictions from voting or serving on a jury, or that mandate that they disclose their conviction on job applications. If someone has committed a crime and served their time, their punishment should be complete and they should be able to fully reintegrate into society. Finally, we must examine the biases at the root of the criminal justice system, the immunity that police and prosecutors enjoy, which allows them to work without any consideration about whether their mistakes and misdeeds will come back to haunt them. Immunity has been carved out by the courts, including the Supreme Court, in the past 5 decades, but could be lifted by our lawmakers.

Although The New Jim Crow was released almost ten years ago, it accurately describes the current system of control in place in our society. It is tempting for us to continue tinkering around the edges of the current system, but Alexander pushes us out of our complacency, and she holds Dr. Martin Luther King up as a model of a person pushing past surface reforms to get at the deep issues. “Rather than challenging the basic structure of society and doing the hard work of movement building–the work to which King was still committed at the end of his life–we have been tempted too often by the opportunity for people of color to be included within the political and economic structure as-is, even if it means alienating those who are necessary allies. We have allowed ourselves to be willfully blind to the emergence of a new caste system–a system of social excommunication that his deny millions of African Americans basic human dignity. The significance of this cannot be overstated, for the failure to acknowledge the humanity and dignity of all persons has lurked at the root of every racial caste system.” Those of us who have not done so must take up the work of racial justice and eliminating mass incarceration – supporting causes with our money, joining protests, speaking out about these issues. Because until these issues are on the minds and in the hearts of all Americans – especially us “good white people” held by our culture of whiteness – reform will not be secured.