The Most Profound Conversation on Race Since Margaret Mead Interviewed James Baldwin in 1972
Racial Profiling in”Post Racial” America
A longtime civil rights advocate and litigator, Alexander was a 2005 Soros Justice Fellow. She holds a joint appointment at the Moritz College of Law and the Kirwan Institute for the Study of Race and Ethnicity in Columbus, Ohio, where she lives. The New Jim Crow is her first book.
A former federal prosecutor, Butler is the country’s leading expert on jury nullification. He provides legal commentary for CNN, NPR, and the Fox News Network, and has been featured on 60 Minutes and profiled in the Washington Post. He has written for the Post, the Boston Globe, and the Los Angeles Times, and is a law professor at George Washington University in Washington, D.C. Let’s Get Free: A Hip-Hop Theory of Justice is his first book.
The New Jim Crow: A Book Review
Anyone in the U.S. paying attention during the last fifteen years should be familiar with an anti-corporate, populist critique, courtesy of Michael Moore, Naomi Klein, and many others. And Tom Engelhardt, Andrew Bacevich and others have dissected the ever-expanding American empire (now fighting the war on terror in 75 countries (!), according to the Obama administration). But there is a crucial feature of the American political economy that has been much less widely discussed . One might say that ‘color’ is lacking from the analysis mapped out above. Enter Michelle Alexander, who sketches the latest mutation of American racism in her powerful book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Although it is not exactly a secret that American prisons have been expanding rapidly, and that the drug war has unfairly targeted minority youth, it is the virtue of her work to show the way these trends and others have come together to create a new system of racial control, one that is in some ways more pernicious than Jim Crow, even as it incorporates some of the progressive features of that system’s demise (i.e. racism is much less explicit). She pulls no punches, arguing that traditional civil rights organizations are not up to the challenge of dismantling this system. It is a crucial read in the midst of the Obama administration, where two familiar tropes (racial progress, epitomized by the Black president himself, and the obnoxious, archaic racism of the teaparty crowd) have again substituted for discussion of the primary dynamics of race in the U.S. Although it is rarely mentioned, the system of mass incarceration and its ideological accoutrements may be one explanation for why liberalism, rather than flowering under Obama, has been listless. It is past due that a discussion of racial control take its place at the progressive’s table.
Paralleling the analysis of sociologists like Loic Waquant and Michael Omi and Howard Winant, Alexander argues that the trajectory of race in the United States has not been one of linear progress. Instead, systems of racial control have been developed which eventually are dismantled, only to be replaced with new systems. Lower class whites have been crucial each time in building alliances for new systems of control. With ‘racial bribes’ that affirm that they are worth more than African Americans, they have been lured away from alliances which might broadly challenge the prerogatives of elites (elites who, until the recent past, were nearly entirely White, and are still mostly so). Thus slavery was destroyed only to be replaced by Jim Crow, after the failure of populist alliances between working class Whites and Blacks. And when Jim Crow was dismantled in the sixties, the alliance between poor Whites and Blacks that Martin Luther King Jr. hoped for was destroyed through appeals to ‘law and order’ which ushered in the drug war and the new system of mass incarceration. Any new system of racial control had to be much less explicitly racist than Jim Crow, with its ‘Whites only’ drinking fountains. This was achieved by launching a ‘drug war’ which almost exclusively targeted inner-city communities of color, although drug use is widespread throughout American society and is actually more prevalent among whites (on the other hand, the greater urgency of the trade in the inner city–where it is practically the only source of money in some communities–leads to a greater association with violence). It helped that the inner-city population was vilified through media campaigns that portrayed them as ruthless, violence prone criminals. The drug war, initially resisted by local law enforcement, was sold to them through the means of hefty federal grants. Join the drug war and the federal government would throw money at the local agencies (it should be noted that the Obama administration is using a similar strategy to push a new consensus about the role of charter schools). Forfeiture laws–which gave local law enforcement rights to property seized in locations suspected of involvement in drug crimes–added another incentive. These rules gave free reign to local law enforcement to seize property, even in situations where no criminality had been proven. Along with the drug war came mandatory minimum sentencing and a militarization of police work–increasingly, drug warrants would be ‘served’ by SWAT teams who wouldn’t bother to knock–instead barging in, sometimes tossing percussion grenades, prepared to attack anyone who did not respond properly. The net result was a massive increase in the prison population, drawn heavily from the black and brown communities in city centers.
Many aspects of the picture sketched above are likely to be at least partly familiar to readers, particularly if they have looked at other texts on the subject like Christian Parenti’s Lockdown America or Ruth Gilmore’s Golden Gulag. Alexander emphasizes two aspects of the situation that tend to get less attention. First, she highlights the closing off of the court system to appeals based on claims of racism (Alexander’s background is in legal work with several civil rights organizations). Essentially, the Supreme Court has stated that unless a police department (or other relevant agency) was explicitly racist in its instructions, its policies cannot be challenged on these grounds. So if police are instructed to stop anyone who looks suspicious, and the police understand, without instructions, that skin color is one factor in making a person ‘suspicious’, this policy will not be overturned by the courts, even if convincing evidence is brought forward that the policy is discriminatory in practice. The net effect of this mentality is that the police and other agencies have virtually free reign to craft racist policies, so long as they are not so stupid as to explicitly state their intentions. Furthermore, the courts have eroded traditional Fourth Amendment defenses against unreasonable searches. As she points out, the Supreme Court was also crucial to consolidating older forms of racial control, namely slavery and Jim Crow.
Secondly, she highlights the terrible effects of being branded a felon even when one is not confined to a penitentiary. This is sometimes overlooked when the undeniably impressive statistics on mass incarceration in the U.S. are bandied about. Felons are hobbled in their efforts to find work through the legitimate labor market. Felons are often permanently stripped of basic components of their citizenship, including the right to serve on juries and the right to vote (and the consequent reduction in the number of Black men who can do both means both juries and the electorate are Whiter than the the population of the U.S. in general). Felons are in danger of being sent back to prison for parole violations, which can include knowingly interacting with other felons, almost inevitable in the neighborhoods they return to. It is not well known that many felons emerge from prisons in debt, having been charged for fees relating to their own incarceration, as well as having accumulated child support debt. Yet they are supposed to navigate this situation with little prospect for legal employment, let alone a well paying and stable job. Additionally, government programs like food stamps and public housing become harder, if not impossible, to access. Being branded a felon also carries a badge of shame, often internalized not only by the ex-offender but his family as well. The net effect is to create a class of people–a large majority of men, in some urban neighborhoods–whose rights and prospects are not much better than African Americans were under Jim Crow, with the crucial distinction that they can be blamed for their fate, because they are convicted felons. However, several points should be noted. First, drug laws that result in these felony charges are widely violated by middle class Whites, with few consequences. Furthermore, those arrested are often convinced to plead guilty to lesser charges than prosecutors aim for, with little understanding of the rights they are giving up (the abysmal status of the public defender system thus being crucial to the perpetuation of this system). Having been pushed to a marginal status where their prospects are bleak, ex-offenders are likely to make new choices outside the law that will, in the eyes of many, reconfirm the justice of their low status. For some perspective, one should consider that were Barack Obama ten years younger, there is an excellent chance that the combination of his skin color and his drug use would have led him into the criminal justice system and to permanent status as a marginal, second class citizen, rather than president.
Having elaborated this new system of control, Alexander is scarcely less critical of those who would be best poised to fight it, the traditional civil rights groups. There are several elements to her critique. For one thing, they have not focused much on the criminal justice system, instead making affirmative action the primary terrain of struggle in the last few decades. In general, they believe that legal battles fought in courtrooms, rather than mass movements, are the crucial battleground for civil rights. Furthermore, civil rights movements, dating back to Rosa Parks at least, look for ‘innocent victims’ of discrimination with impeccable records that can win the sympathy of a broad community of whites. This makes it difficult to challenge mass incarceration, since its logic is grounded on the ‘criminal’ behavior of its victims (here we might note that when the subject of incarcerated women (and their number is skyrocketing, although still a small fraction compared to men) is brought up in liberal circles, it is often noted that most of them have been abused and have often been convicted of behavior they were pressured into by partners. Such considerations do not seem entirely irrelevant in the case of men, although it is much more unusual to hear them discussed in this way). While lauding it, she argues that the protests against the plight of the Jena Six (nearly tried for murder based on a high school brawl) does not provide the basis for a new civil rights movement since it was crucial in that case that nooses had been hung from a tree. This evoked the old, hated, Jim Crow pattern of control, rather than the more difficult to identify new system of ‘colorblind’ mass incarceration (although she makes the interesting point that even the Jim Crow system sometimes relied on racist application of colorblind laws, such as the literacy and poll tests that excluded African Americans from voting, making the two systems less starkly different in some ways than one might believe).
In order to combat the system, Alexander suggests mass mobilization is necessary. Activists will have to challenge the dehumanizing status of ‘criminal’ which organizes the system of mass incarceration. A piecemeal approach, picking at the most egregious elements of the system, will neither inspire nor be sufficient to dismantle it. Instead, one needs to clarify the way a number of processes come together to reproduce this system, and how they must be replaced with a new system that would produce jobs and well being in poor neighborhoods, rather than brand large numbers of men criminals before tossing them to the margins. She also claims that the ‘racial bribe’ of affirmative action and diversification of powerful institutions be rejected. There are now African American mayors, police chiefs, even presidents. Yet far from improving the lot of African Americans in general, the poverty level among African Americans remains at roughly the same place it was in the late 60s. Instead, the sight of African Americans in high places offers consolation, and obscures the process of racism on the ground. Furthermore, many African Americans are apprehensive about criticizing African Americans in high places (as can be seen with Obama), thus facilitating the perpetuation of the broader system.
I thought Alexander’s book was powerful, and urge everyone to read it–there is much more to it than I’ve been able to outline above. Here I want to bring up a couple of points about the struggle that she does not focus on but may be useful in conceptualizing how to get rid of the new Jim Crow. First, it should be noted that the new Jim Crow, while accounting for the bulk of the expansion of the prison population, is not the only racially based system of policing to expand in the last couple of decades. There is also the efforts of law enforcement against ‘illegal immigration’, which seems to be expanding into an umbrella harassing Latinos in general. Particularly since 2001, Muslims in the U.S. have had a status where their rights are largely held in limbo–indeed, the current ‘liberal’ president has announced the right of the U.S. government to assassinate its own citizens, a right largely directed at perceived Muslim radicals, while the Supreme Court has vindicated the criminalization of practically any contact with ‘terrorist’ groups. Although not racially based, there has also been a general incursion on the right to protest, particularly among those who identify themselves as anarchists. One might also add the impaired right of organizing in American workplaces. While the U.S. is not experienced as a police state by a broad majority of largely white, largely middle class (in some vague sense) citizens, for the groups described above, the U.S. has developed what might be called micropolice states, where basic rights against arbitrary search and seizure, probable cause for arrest, etc have largely been suspended. Tactics developed specifically in each one of these micropolice states can migrate outward and influence tactics in the others. And because they are not explicitly racial, there is always the possibility that, combined with ever-expanding executive power, they will mushroom into a full blown police state shaping the behavior of everyone in the U.S. It is relevant to note this process because if an analysis can be developed of the combined impact of these policies, it may be possible to see the contours of a multiracial alliance opposed to the process of incarceration, policing, surveillance, and for a process of inclusion.
A second area that should be considered is the international context in which these struggles are played out. In the sixties, civil rights legislation was signed into law in good part because of cold war pressure . The USSR was scoring propaganda points in the newly decolonizing world by calling attention to Jim Crow. Furthermore, African diplomats, who the U.S. hoped to win over, could not freely travel in the Washington DC metro area. Thus, much of the national security establishment decided that Jim Crow needed to be ended. On another track, Malcolm X appealed to the UN to examine the sovereign rights of African Americans. As much as his ‘by any means necessary’ rhetoric, and his Black Muslim identity, this put him outside the pale of respectable discourse in the U.S. Now consider the present day. The U.S. is in some ways more isolated than it was during the cold war, with numerous countries (most recently, Turkey) taking some distance from it. At the same time, it does not face an ideological rival analogous to the Soviet Union. Furthermore the system of U.S. mass incarceration, while unique, echoes the weak level of rights notable in the ‘planet of slums’ all over the world (a number of states–sometimes with the help of public or private U.S. advisers, have taken to assassinating, rather than incarcerating, young male slum dwellers). Nevertheless, it is also the case that non-governmental actors are much more widespread than they were in the early 60s. Could global activist groups bring concerted pressure to change policies in the U.S.? Surely the outcome of the Boycott Divestment and Sanctions campaign against Israeli apartheid bears close watching in this respect. In a related way, the prospects for groups within the U.S. to reach out across borders for assistance and to delegitimize laws in the U.S. is much greater than it used to be. They would probably not go to the UN per se, but rather to allied human rights, racial justice and other struggle organizations found in places like the World Social Forum. This is the international component of the slogan Alexander promotes to critique affirmative action–’All of us or none of us’.
Reprinted by permission of Counterpunch.
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