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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

Alexander, Michelle. The New Jim Crow : Mass Incarceration in the Age of Colorblindness, The New Press, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/utarl/detail.action?docID=5651869. Created from utarl on 2021-11-11 20:18:37.

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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

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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

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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

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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,

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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.”

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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-

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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,

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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-

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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

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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.

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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.

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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-

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

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