Precisely how the system of mass incarceration works to trap African Americans in a virtual (and literal) cage can best be understood by viewing the system as a whole. In earlier chapters, we considered various wires of the cage in isolation; here, we put the pieces together, step back, and view the cage in its entirety. Only when we view the cage from a distance can we disengage from the maze of rationalizations that are offered for each wire and see how the entire apparatus operates to keep African Americans perpetually trapped. This, in brief, is how the system works: The War on Drugs is the vehicle through which extraordinary numbers of black men are forced into the cage. The entrapment occurs in three distinct phases, each of which has been explored earlier, but a brief review is useful here. The first stage is the roundup. Vast numbers of people are swept into the criminal justice system by the police, who conduct drug operations primarily in poor communities of color. They are rewarded in cash—through drug forfeiture laws and federal grant programs—for rounding up as many people as possible, and they operate unconstrained by constitutional rules of procedure that once were considered inviolate. Police can stop, interrogate, and search anyone they choose for drug investigations, provided they get “consent.” Because there is no meaningful check on the exercise of police discretion, racial biases are granted free reign. In fact, police are allowed to rely on race as a factor in selecting whom to stop and search (even though people of color are no more likely to be guilty of drug crimes than whites)—effectively guaranteeing that those who are swept into the system are primarily black and brown. The conviction marks the beginning of the second phase: the period of formal control. Once arrested, defendants are generally denied meaningful legal representation and pressured to plead guilty whether they are or not. Prosecutors are free to “load up” defendants with extra charges, and their decisions cannot be challenged for racial bias. Once convicted, due to the drug war’s harsh sentencing laws, drug offenders in the United States spend more time under the criminal justice system’s formal control—in jail or prison, on probation or parole—than drug offenders anywhere else in the world. While under formal control, virtually every aspect of one’s life is regulated and monitored by the system, and any form of resistance or disobedience is subject to swift sanction. This period of control may last a lifetime, even for those convicted of extremely minor, nonviolent offenses, but the vast majority of those swept into the system are eventually released. They are transferred from their prison cells to a much larger, invisible cage. The final stage has been dubbed by some advocates as the period of invisible punishment.13 This term, first coined by Jeremy Travis, is meant to describe the unique set of criminal sanctions that are imposed on individuals after they step outside the prison gates, a form of punishment that operates largely outside of public view and takes effect outside the traditional sentencing framework. These sanctions are imposed by operation of law rather than decisions of a sentencing judge, yet they often have a greater impact on one’s life course than the months or years one actually spends behind bars. These laws operate collectively to ensure that the vast majority of convicted offenders will never integrate into mainstream, white society. They will be discriminated against, legally, for the rest of their lives—denied employment, housing, education, and public benefits. Unable to surmount these obstacles, most will eventually return to prison and then be released again, caught in a closed circuit of perpetual marginality. In recent years, advocates and politicians have called for greater resources devoted to the problem of “prisoner re-entry,” in view of the unprecedented numbers of people who are released from prison and returned to their communities every year. While the terminology is well intentioned, it utterly fails to convey the gravity of the situation facing prisoners upon their release. People who have been convicted of felonies almost never truly reenter the society they inhabited prior to their conviction. Instead, they enter a separate society, a world hidden from public view, governed by a set of oppressive and discriminatory rules and laws that do not apply to everyone else. They become members of an undercaste—an enormous population of predominately black and brown people who, because of the drug war, are denied basic rights and privileges of American citizenship and are permanently relegated to an inferior status. This is the final phase, and there is no going back. Nothing New? Some might argue that as disturbing as this system appears to be, there is nothing particularly new about mass incarceration; it is merely a continuation of past drug wars and biased law enforcement practices. Racial bias in our criminal justice system is simply an old problem that has gotten worse, and the social excommunication of “criminals” has a long history; it is not a recent invention. There is some merit to this argument. Race has always influenced the administration of justice in the United States. Since the day the first prison opened, people of color have been disproportionately represented behind bars. In fact, the very first person admitted to a U.S. penitentiary was a “light skinned Negro in excellent health,” described by an observer as “one who was born of a degraded and depressed race, and had never experienced anything but indifference and harshness.”14 Biased police practices are also nothing new, a recurring theme of African American experience since blacks were targeted by the police as suspected runaway slaves. And every drug war that has ever been waged in the United States—including alcohol prohibition—has been tainted or driven by racial bias.15 Even postconviction penalties have a long history. The American colonies passed laws barring criminal offenders from a wide variety of jobs and benefits, automatically dissolving their marriages and denying them the right to enter contracts. These legislatures were following a long tradition, dating back to ancient Greece, of treating criminals as less than full citizens. Although many collateral sanctions were repealed by the late 1970s, arguably the drug war simply revived and expanded a tradition that has ancient roots, a tradition independent of the legacy of American slavery. In view of this history and considering the lack of originality in many of the tactics and practices employed in the era of mass incarceration, there is good reason to believe that the latest drug war is just another drug war corrupted by racial and ethnic bias. But this view is correct only to a point. In the past, the criminal justice system, as punitive as it may have been during various wars on crime and drugs, affected only a relatively small percentage of the population. Because civil penalties and sanctions imposed on ex-offenders applied only to a few, they never operated as a comprehensive system of control over any racially or ethnically defined population. Racial minorities were always overrepresented among current and ex-offenders, but as sociologists have noted, until the mid-1980s, the criminal justice system was marginal to communities of color. While young minority men with little schooling have always had relatively high rates of incarceration, “before the 1980s the penal system was not a dominant presence in the disadvantaged neighborhoods.”16 Today, the War on Drugs has given birth to a system of mass incarceration that governs not just a small fraction of a racial or ethnic minority but entire communities of color. In ghetto communities, nearly everyone is either directly or indirectly subject to the new caste system. The system serves to redefine the terms of the relationship of poor people of color and their communities to mainstream, white society, ensuring their subordinate and marginal status. The criminal and civil sanctions that were once reserved for a tiny minority are now used to control and oppress a racially defined majority in many communities, and the systematic manner in which the control is achieved reflects not just a difference in scale. The nature of the criminal justice system has changed. It is no longer concerned primarily with the prevention and punishment of crime, but rather with the management and control of the dispossessed. Prior drug wars were ancillary to the prevailing caste system. This time the drug war is the system of control. If you doubt that this is the case, consider the effect of the war on the ground, in specific locales. Take Chicago, Illinois, for example. Chicago is widely considered to be one of America’s most diverse and vibrant cities. It has boasted black mayors, black police chiefs, black legislators, and is home to the nation’s first black president. It has a thriving economy, a growing Latino community, and a substantial black middle class. Yet as the Chicago Urban League reported in 2002, there is another story to be told.17 If Martin Luther King Jr. were to return miraculously to Chicago, some forty years after bringing his Freedom Movement to the city, he would be saddened to discover that the same issues on which he originally focused still produce stark patterns of racial inequality, segregation, and poverty. He would also be struck by the dramatically elevated significance of one particular institutional force in the perpetuation and deepening of those patterns: the criminal justice system. In the few short decades since King’s death, a new regime of racially disparate mass incarceration has emerged in Chicago and become the primary mechanism for racial oppression and the denial of equal opportunity. In Chicago, like the rest of the country, the War on Drugs is the engine of mass incarceration, as well as the primary cause of gross racial disparities in the criminal justice system and in the ex-offender population. About 90 percent of those sentenced to prison for a drug offense in Illinois are African American.18 White drug offenders are rarely arrested, and when they are, they are treated more favorably at every stage of the criminal justice process, including plea bargaining and sentencing.19 Whites are consistently more likely to avoid prison and felony charges, even when they are repeat offenders. 20 Black offenders, by contrast, are routinely labeled felons and released into a permanent racial undercaste. The total population of black males in Chicago with a felony record (including both current and ex-felons) is equivalent to 55 percent of the black adult male population and an astonishing 80 percent of the adult black male workforce in the Chicago area.21 This stunning development reflects the dramatic increase in the number and race of those sent to prison for drug crimes. From the Chicago region alone, the number of those annually sent to prison for drug crimes increased almost 2,000 percent, from 469 in 1985 to 8,755 in 2005.22 When people are released from Illinois prisons, they are given as little as $10 in “gate money” and a bus ticket to anywhere in the United States. Most return to impoverished neighborhoods in the Chicago area, bringing few resources and bearing the stigma of their prison record.23 In Chicago, as in most cities across the country, ex-offenders are banned or severely restricted from employment in a large number of professions, job categories, and fields by professional licensing statutes, rules, and practices that discriminate against potential employees with felony records. According to a study conducted by the DePaul University College of Law in 2000, of the then ninety-eight occupations requiring licenses in Illinois, fiftyseven placed stipulations and/or restrictions on applicants with a criminal record.24 Even when not barred by law from holding specific jobs, ex-offenders in Chicago find it extraordinarily difficult to find employers who will hire them, regardless of the nature of their conviction. They are also routinely denied public housing and welfare benefits, and they find it increasingly difficult to obtain education, especially now that funding for public education has been hard hit, due to exploding prison budgets. The impact of the new caste system is most tragically felt among the young. In Chicago (as in other cities across the United States), young black men are more likely to go to prison than to college.25 As of June 2001, there were nearly 20,000 more black men in the Illinois state prison system than enrolled in the state’s public universities.26 In fact, there were more black men in the state’s correctional facilities that year just on drug charges than the total number of black men enrolled in undergraduate degree programs in state universities.27 To put the crisis in even sharper focus, consider this: just 992 black men received a bachelor’s degree from Illinois state universities in 1999, while roughly 7,000 black men were released from the state prison system the following year just for drug offenses.28 The young men who go to prison rather than college face a lifetime of closed doors, discrimination, and ostracism. Their plight is not what we hear about on the evening news, however. Sadly, like the racial caste systems that preceded it, the system of mass incarceration now seems normal and natural to most, a regrettable necessity. Mapping the Parallels Those cycling in and out of Illinois prisons today are members of America’s new racial undercaste. The United States has almost always had a racial undercaste—a group defined wholly or largely by race that is permanently locked out of mainstream, white society by law, custom, and practice. The reasons and justifications change over time, as each new caste system reflects and adapts to changes in the social, political, and economic context. What is most striking about the design of the current caste system, though, is how closely it resembles its predecessor. There are important differences between mass incarceration and Jim Crow, to be sure—many of which will be discussed later—but when we step back and view the system as a whole, there is a profound sense of déjà vu. There is a familiar stigma and shame. There is an elaborate system of control, complete with political disenfranchisement and legalized discrimination in every major realm of economic and social life. And there is the production of racial meaning and racial boundaries. Many of these parallels have been discussed at some length in earlier chapters; others have yet to be explored. Listed below are several of the most obvious similarities between Jim Crow and mass incarceration, followed by a discussion of a few parallels that have not been discussed so far. Let’s begin with the historical parallels. Historical parallels. Jim Crow and mass incarceration have similar political origins. As described in chapter 1, both caste systems were born, in part, due to a desire among white elites to exploit the resentments, vulnerabilities, and racial biases of poor and working-class whites for political or economic gain. Segregation laws were proposed as part of a deliberate and strategic effort to deflect anger and hostility that had been brewing against the white elite away from them and toward African Americans. The birth of mass incarceration can be traced to a similar political dynamic. Conservatives in the 1970s and 1980s sought to appeal to the racial biases and economic vulnerabilities of poor and working-class whites through racially coded rhetoric on crime and welfare. In both cases, the racial opportunists offered few, if any, economic reforms to address the legitimate economic anxieties of poor and working-class whites, proposing instead a crackdown on the racially-defined “others.” In the early years of Jim Crow, conservative white elites competed with each other by passing ever more stringent and oppressive Jim Crow legislation. A century later, politicians in the early years of the drug war competed with each other to prove who could be tougher on crime by passing ever harsher drug laws—a thinly veiled effort to appeal to poor and working-class whites who, once again, proved they were willing to forego economic and structural reform in exchange for an apparent effort to put blacks back “in their place.”29 Legalized discrimination. The most obvious parallel between Jim Crow and mass incarceration is legalized discrimination. During Black History Month, Americans congratulate themselves for having put an end to discrimination against African Americans in employment, housing, public benefits, and public accommodations. Schoolchildren wonder out loud how discrimination could ever have been legal in this great land of ours. Rarely are they told that it is still legal. Many of the forms of discrimination that relegated African Americans to an inferior caste during Jim Crow continue to apply to huge segments of the black population today— provided they are first labeled felons. If they are branded felons by the time they reach the age of twenty-one (as many of them are), they are subject to legalized discrimination for their entire adult lives. The forms of discrimination that apply to ex-drug offenders, described in some detail in chapter 4, mean that, once prisoners are released, they enter a parallel social universe—much like Jim Crow—in which discrimination in nearly every aspect of social, political, and economic life is perfectly legal. Large majorities of black men in cities across the United States are once again subject to legalized discrimination effectively barring them from full integration into mainstream, white society. Mass incarceration has nullified many of the gains of the Civil Rights Movement, putting millions of black men back in a position reminiscent of Jim Crow. Political disenfranchisement. During the Jim Crow era, African Americans were denied the right to vote through poll taxes, literacy tests, grandfather clauses, and felon disenfranchisement laws, even though the Fifteenth Amendment to the U.S. Constitution specifically provides that “the right of citizens of the United States to vote shall not be denied ... on account of race, color, or previous condition of servitude.” Formally race-neutral devices were adopted to achieve the goal of an all-white electorate without violating the terms of the Fifteenth Amendment. The devices worked quite well. Because African Americans were poor, they frequently could not pay poll taxes. And because they had been denied access to education, they could not pass literacy tests. Grandfather clauses allowed whites to vote even if they couldn’t meet the requirements, as long as their ancestors had been able to vote. Finally, because blacks were disproportionately charged with felonies—in fact, some crimes were specifically defined as felonies with the goal of eliminating blacks from the electorate—felony disenfranchisement laws effectively suppressed the black vote as well.30 Following the collapse of Jim Crow, all of the race-neutral devices for excluding blacks from the electorate were eliminated through litigation or legislation, except felon disenfranchisement laws. Some courts have found that these laws have “lost their discriminatory taint” because they have been amended since the collapse of Jim Crow; others courts have allowed the laws to stand because overt racial bias is absent from the legislative record.31 The failure of our legal system to eradicate all of the tactics adopted during the Jim Crow era to suppress the black vote has major implications today. Felon disenfranchisement laws have been more effective in eliminating black voters in the age of mass incarceration than they were during Jim Crow. Less than two decades after the War on Drugs began, one in seven black men nationally had lost the right to vote, and as many as one in four in those states with the highest African American disenfranchisement rate.32 These figures may understate the impact of felony disenfranchisement, because they do not take into account the millions of ex-felons who cannot vote in states that require ex-felons to pay fines or fees before their voting rights can be restored—the new poll tax. As legal scholar Pamela Karlan has observed, “felony disenfranchisement has decimated the potential black electorate.”33 It is worthy of note, however, that the exclusion of black voters from polling booths is not the only way in which black political power has been suppressed. Another dimension of disenfranchisement echoes not so much Jim Crow as slavery. Under the usual-residence rule, the Census Bureau counts imprisoned individuals as residents of the jurisdiction in which they are incarcerated. Because most new prison construction occurs in predominately white, rural areas, white communities benefit from inflated population totals at the expense of the urban, overwhelmingly minority communities from which the prisoners come.34 This has enormous consequences for the redistricting process. White rural communities that house prisons wind up with more people in state legislatures representing them, while poor communities of color lose representatives because it appears their population has declined. This policy is disturbingly reminiscent of the three-fifths clause in the original Constitution, which enhanced the political clout of slaveholding states by including 60 percent of slaves in the population base for calculating Congressional seats and electoral votes, even though they could not vote. Exclusion from juries. Another clear parallel between mass incarceration and Jim Crow is the systematic exclusion of blacks from juries. One hallmark of the Jim Crow era was all-white juries trying black defendants in the South. Although the exclusion of jurors on the basis of race has been illegal since 1880, as a practical matter, the removal of prospective black jurors through race-based peremptory strikes was sanctioned by the Supreme Court until 1985, when the Court ruled in Batson v. Kentucky that racially biased strikes violate the equal protection clause of the Fourteenth Amendment.35 Today defendants face a situation highly similar to the one they faced a century ago. As described in chapter 3, a formal prohibition against racebased peremptory strikes does exist; as a practical matter, however, the Court has tolerated the systematic exclusion of blacks from juries by allowing lower courts to accept “silly” and even “superstitious” reasons for striking black jurors.36 To make matters worse, a large percentage of black men (about 30 percent) are automatically excluded from jury service because they have been labeled felons.37 The combined effect of race-based peremptory strikes and the automatic exclusion of felons from juries has put black defendants in a familiar place—in a courtroom in shackles, facing an all-white jury. Closing the courthouse doors. The parallels between mass incarceration and Jim Crow extend all the way to the U.S. Supreme Court. Over the years, the Supreme Court has followed a fairly consistent pattern in responding to racial caste systems, first protecting them and then, after dramatic shifts in the political and social climate, dismantling these systems of control and some of their vestiges. In Dred Scott v. Sanford, the Supreme Court immunized the institution of slavery from legal challenge on the grounds that African Americans were not citizens, and in Plessy v. Ferguson, the Court established the doctrine of “separate but equal”—a legal fiction that protected the Jim Crow system from judicial scrutiny for racial bias. Currently, McCleskey v. Kemp and its progeny serve much the same function as Dred Scott and Plessy. In McCleskey, the Supreme Court demonstrated that it is once again in protection mode—firmly committed to the prevailing system of control. As chapter 3 demonstrated, the Court has closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing. Mass incarceration is now off-limits to challenges on the grounds of racial bias, much as its predecessors were in their time. The new racial caste system operates unimpeded by the Fourteenth Amendment and federal civil rights legislation—laws designed to topple earlier systems of control. The Supreme Court’s famous proclamation in 1857—“[the black man] has no rights which the white man is bound to respect”—remains true to a significant degree today, so long as the black man has been labeled a felon.38 Racial segregation. Although the parallels listed above should be enough to give anyone pause, there are a number of other, less obvious, similarities between mass incarceration and Jim Crow that have not been explored in earlier chapters. The creation and maintenance of racial segregation is one example. As we know, Jim Crow laws mandated residential segregation, and blacks were relegated to the worst parts of town. Roads literally stopped at the border of many black neighborhoods, shifting from pavement to dirt. Water, sewer systems, and other public services that supported the white areas of town frequently did not extend to the black areas. The extreme poverty that plagued blacks due to their legally sanctioned inferior status was largely invisible to whites—so long as whites remained in their own neighborhoods, which they were inclined to do. Racial segregation rendered black experience largely invisible to whites, making it easier for whites to maintain racial stereotypes about black values and culture. It also made it easier to deny or ignore their suffering. Mass incarceration functions similarly. It achieves racial segregation by segregating prisoners —the majority of whom are black and brown—from mainstream society. Prisoners are kept behind bars, typically more than a hundred miles from home.39 Even prisons—the actual buildings—are a rare sight for many Americans, as they are often located far from population centers. Although rural counties contain only 20 percent of the U.S. population, 60 percent of new prison construction occurs there.40 Prisoners are thus hidden from public view—out of sight, out of mind. In a sense, incarceration is a far more extreme form of physical and residential segregation than Jim Crow segregation. Rather than merely shunting black people to the other side of town or corralling them in ghettos, mass incarceration locks them in cages. Bars and walls keep hundreds of thousands of black and brown people away from mainstream society—a form of apartheid unlike any the world has ever seen. Prisons, however, are not the only vehicle for racial segregation. Segregation is also created and perpetuated by the flood of prisoners who return to ghetto communities each year. Because the drug war has been waged almost exclusively in poor communities of color, when drug offenders are released, they are generally returned to racially segregated ghetto communities—the places they call home. In many cities, the re-entry phenomenon is highly concentrated in a small number of neighborhoods. According to one study, during a twelve-year period, the number of prisoners returning home to “core counties”—those counties that contain the inner city of a metropolitan area—tripled.41 The effects are felt throughout the United States. In interviews with one hundred residents of two Tallahassee, Florida, communities, researchers found that nearly every one of them had experienced or expected to experience the return of a family member from prison.42 Similarly, a survey of families living in the Robert Taylor Homes in Chicago found that the majority of residents either had a family member in prison or expected one to return within the next two years.43 Fully 70 percent of men between the ages of eighteen and forty-five in the impoverished and overwhelmingly black North Lawndale neighborhood on Chicago’s West Side are ex-offenders, saddled for life with a criminal record.44 The majority (60 percent) were incarcerated for drug offenses.45 These neighborhoods are a minefield for parolees, for a standard condition of parole is a promise not to associate with felons. As Paula Wolff, a senior executive at Chicago Metropolis 2020 observes, in these ghetto neighborhoods, “It is hard for a parolee to walk to the corner store to get a carton of milk without being subject to a parole violation.”46 By contrast, whites—even poor whites—are far less likely to be imprisoned for drug offenses. And when they are released from prison, they rarely find themselves in the ghetto. The white poor have a vastly different experience in America than do poor people of color. Because whites do not suffer racial segregation, the white poor are not relegated to racially defined areas of intense poverty. In New York City, one study found that 70 percent of the city’s poor black and Latino residents live in high-poverty neighborhoods, whereas 70 percent of the city’s poor whites live in nonpoverty neighborhoods—communities that have significant resources, including jobs, schools, banks, and grocery stores.47 Nationwide, nearly seven out of eight people living in high-poverty urban areas are members of a minority group.48 Mass incarceration thus perpetuates and deepens pre-existing patterns of racial segregation and isolation, not just by removing people of color from society and putting them in prisons, but by dumping them back into ghettos upon their release. Youth of color who might have escaped their ghetto communities—or helped to transform them—if they had been given a fair shot in life and not been labeled felons, instead find themselves trapped in a closed circuit of perpetual marginality, circulating between ghetto and prison.49 The racially segregated, poverty-stricken ghettos that exist in inner-city communities across America would not exist today but for racially biased government policies for which there has never been meaningful redress.50 Yet every year, hundreds of thousands of poor people of color who have been targeted by the War on Drugs are forced to return to these racially segregated communities—neighborhoods still crippled by the legacy of an earlier system of control. As a practical matter, they have no other choice. In this way, mass incarceration, like its predecessor Jim Crow, creates and maintains racial segregation. Symbolic production of race. Arguably the most important parallel between mass incarceration and Jim Crow is that both have served to define the meaning and significance of race in America. Indeed, a primary function of any racial caste system is to define the meaning of race in its time. Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black. The temptation is to insist that black men “choose” to be criminals; the system does not make them criminals, at least not in the way that slavery made blacks slaves or Jim Crow made them second-class citizens. The myth of choice here is seductive, but it should be resisted. African Americans are not significantly more likely to use or sell prohibited drugs than whites, but they are made criminals at drastically higher rates for precisely the same conduct. In fact, studies suggest that white professionals may be the most likely of any group to have engaged in illegal drug activity in their lifetime, yet they are the least likely to be made criminals.51 The prevalence of illegal drug activity among all racial and ethnic groups creates a situation in which, due to limited law enforcement resources and political constraints, some people are made criminals while others are not. Black people have been made criminals by the War on Drugs to a degree that dwarfs its effect on other racial and ethnic groups, especially whites. And the process of making them criminals has produced racial stigma. Every racial caste system in the United States has produced racial stigma. Mass incarceration is no exception. Racial stigma is produced by defining negatively what it means to be black. The stigma of race was once the shame of the slave; then it was the shame of the second-class citizen; today the stigma of race is the shame of the criminal. As described in chapter 4, many ex-offenders describe an existential angst associated with their pariah status, an angst that casts a shadow over every aspect of their identity and social experience. The shame and stigma is not limited to the individual; it extends to family members and friends—even whole communities are stigmatized by the presence of those labeled criminals. Those stigmatized often adopt coping strategies African Americans once employed during the Jim Crow era, including lying about their own criminal history or the status of their family members in an attempt to “pass” as someone who will be welcomed by mainstream society. The critical point here is that, for black men, the stigma of being a “criminal” in the era of mass incarceration is fundamentally a racial stigma. This is not to say stigma is absent for white criminals; it is present and powerful. Rather, the point is that the stigma of criminality for white offenders is different—it is a nonracial stigma. An experiment may help to illustrate how and why this is the case. Say the following to nearly anyone and watch the reaction: “We really need to do something about the problem of white crime.” Laughter is a likely response. The term white crime is nonsensical in the era of mass incarceration, unless one is really referring to white-collar crime, in which case the term is understood to mean the types of crimes that seemingly respectable white people commit in the comfort of fancy offices. Because the term white crime lacks social meaning, the term white criminal is also perplexing. In that formulation, white seems to qualify the term criminal—as if to say, “he’s a criminal but not that kind of criminal.” Or, he’s not a real criminal—i.e., not what we mean by criminal today. In the era of mass incarceration, what it means to be a criminal in our collective consciousness has become conflated with what it means to be black, so the term white criminal is confounding, while the term black criminal is nearly redundant. Recall the study discussed in chapter 3 that revealed that when survey respondents were asked to picture a drug criminal, nearly everyone pictured someone who was black. This phenomenon helps to explain why studies indicate that white ex-offenders may actually have an easier time gaining employment than African Americans without a criminal record.52 To be a black man is to be thought of as a criminal, and to be a black criminal is to be despicable—a social pariah. To be a white criminal is not easy, by any means, but as a white criminal you are not a racial outcast, though you may face many forms of social and economic exclusion. Whiteness mitigates crime, whereas blackness defines the criminal. As we have seen in earlier chapters, the conflation of blackness with crime did not happen organically; rather, it was constructed by political and media elites as part of the broad project known as the War on Drugs. This conflation served to provide a legitimate outlet to the expression of antiblack resentment and animus—a convenient release valve now that explicit forms of racial bias are strictly condemned. In the era of colorblindness, it is no longer permissible to hate blacks, but we can hate criminals. Indeed, we are encouraged to do so. As writer John Edgar Wideman points out, “It’s respectable to tar and feather criminals, to advocate locking them up and throwing away the key. It’s not racist to be against crime, even though the archetypal criminal in the media and the public imagination almost always wears Willie Horton’s face.”53 It is precisely because our criminal justice system provides a vehicle for the expression of conscious and unconscious antiblack sentiment that the prison label is experienced as a racial stigma. The stigma exists whether or not one has been formally branded a criminal, yet another parallel to Jim Crow. Just as African Americans in the North were stigmatized by the Jim Crow system even if they were not subject to its formal control, black men today are stigmatized by mass incarceration—and the social construction of the “criminalblackman”—whether they have ever been to prison or not. For those who have been branded, the branding serves to intensify and deepen the racial stigma, as they are constantly reminded in virtually every contact they have with public agencies, as well as with private employers and landlords, that they are the new “untouchables.” In this way, the stigma of race has become the stigma of criminality. Throughout the criminal justice system, as well as in our schools and public spaces, young + black + male is equated with reasonable suspicion, justifying the arrest, interrogation, search, and detention of thousands of African Americans every year, as well as their exclusion from employment and housing and the denial of educational opportunity. Because black youth are viewed as criminals, they face severe employment discrimination and are also “pushed out” of schools through racially biased school discipline policies.54 For black youth, the experience of being “made black” often begins with the first police stop, interrogation, search, or arrest. The experience carries social meaning—this is what it means to be black. The story of one’s “first time” may be repeated to family or friends, but for ghetto youth, almost no one imagines that the first time will be the last. The experience is understood to define the terms of one’s relationship not only to the state but to society at large. This reality can be frustrating for those who strive to help ghetto youth “turn their lives around.” James Forman Jr., the cofounder of the See Forever charter school for juvenile offenders in Washington, D.C., made this point when describing how random and degrading stops and searches of ghetto youth “tell kids that they are pariahs, that no matter how hard they study, they will remain potential suspects.” One student complained to him, “We can be perfect, perfect, doing everything right and still they treat us like dogs. No, worse than dogs, because criminals are treated worse than dogs.” Another student asked him pointedly, “How can you tell us we can be anything when they treat us like we’re nothing?”55 The process of marking black youth as black criminals is essential to the functioning of mass incarceration as a racial caste system. For the system to succeed—that is, for it to achieve the political goals described in chapter 1—black people must be labeled criminals before they are formally subject to control. The criminal label is essential, for forms of explicit racial exclusion are not only prohibited but widely condemned. Thus black youth must be made—labeled— criminals. This process of being made a criminal is, to a large extent, the process of “becoming” black. As Wideman explains, when “to be a man of color of a certain economic class and milieu is equivalent in the public eye to being a criminal,” being processed by the criminal justice system is tantamount to being made black, and “doing time” behind bars is at the same time “marking race.”56 At its core, then, mass incarceration, like Jim Crow, is a “race-making institution.” It serves to define the meaning and significance of race in America. The Limits of the Analogy Saying that mass incarceration is the New Jim Crow can leave a misimpression. The parallels between the two systems of control are striking, to say the least—in both, we find racial opportunism by politicians, legalized discrimination, political disenfranchisement, exclusion of blacks from juries, stigmatization, the closing of courthouse doors, racial segregation, and the symbolic production of race—yet there are important differences. Just as Jim Crow, as a system of racial control, was dramatically different from slavery, mass incarceration is different from its predecessor. In fact, if one were to draft a list of the differences between slavery and Jim Crow, the list might well be longer than the list of similarities. The same goes for Jim Crow and mass incarceration. Each system of control has been unique—well adapted to the circumstances of its time. If we fail to appreciate the differences, we will be hindered in our ability to meet the challenges created by the current moment. At the same time, though, we must be careful not to assume that differences exist when they do not, or to exaggerate the ones that do. Some differences may appear on the surface to be major, but on close analysis they prove less significant. An example of a difference that is less significant than it may initially appear is the “fact” that Jim Crow was explicitly race-based, whereas mass incarceration is not. This statement initially appears self-evident, but it is partially mistaken. Although it is common to think of Jim Crow as an explicitly race-based system, in fact a number of the key policies were officially colorblind. As previously noted, poll taxes, literacy tests, and felon disenfranchisement laws were all formally race-neutral practices that were employed in order to avoid the prohibition on race discrimination in voting contained in the Fifteenth Amendment. These laws operated to create an all-white electorate because they excluded African Americans from the franchise but were not generally applied to whites. Poll workers had the discretion to charge a poll tax or administer a literacy test, or not, and they exercised their discretion in a racially discriminatory manner. Laws that said nothing about race operated to discriminate because those charged with enforcement were granted tremendous discretion, and they exercised that discretion in a highly discriminatory manner. The same is true in the drug war. Laws prohibiting the use and sale of drugs are facially race neutral, but they are enforced in a highly discriminatory fashion. The decision to wage the drug war primarily in black and brown communities rather than white ones and to target African Americans but not whites on freeways and train stations has had precisely the same effect as the literacy and poll taxes of an earlier era. A facially race-neutral system of laws has operated to create a racial caste system. Other differences between Jim Crow and mass incarceration are actually more significant than they may initially appear. An example relates to the role of racial stigma in our society. As discussed in chapter 4, during Jim Crow, racial stigma contributed to racial solidarity in the black community. Racial stigma today, however—that is, the stigma of black criminality—has turned the black community against itself, destroyed networks of mutual support, and created a silence about the new caste system among many of the people most affected by it.57 The implications of this difference are profound. Racial stigma today makes collective action extremely difficult— sometimes impossible; whereas racial stigma during Jim Crow contained the seeds of revolt. Described below are a number of the other important differences between Jim Crow and mass incarceration. Listing all of the differences here is impractical; so instead we will focus on a few of the major differences that are most frequently cited in defense of mass incarceration, including the absence of overt racial hostility, the inclusion of whites in the system of control, and African American support for some “get tough” policies and drug war tactics. Absence of racial hostility. First, let’s consider the absence of overt racial hostility among politicians who support harsh drug laws and the law enforcement officials charged with enforcing them. The absence of overt racial hostility is a significant difference from Jim Crow, but it can be exaggerated. Mass incarceration, like Jim Crow, was born of racial opportunism— an effort by white elites to exploit the racial hostilities, resentments, and insecurities of poor and working-class whites. Moreover, racial hostility and racial violence have not altogether disappeared, given that complaints of racial slurs and brutality by the police and prison guards are fairly common. Some scholars and commentators have pointed out that the racial violence once associated with brutal slave masters or the Ku Klux Klan has been replaced, to some extent, by violence perpetrated by the state. Racial violence has been rationalized, legitimated, and channeled through our criminal justice system; it is expressed as police brutality, solitary confinement, and the discriminatory and arbitrary imposition of the death penalty.58 But even granting that some African Americans may fear the police today as much as their grandparents feared the Klan (as a wallet can be mistaken for a gun) and that the penal system may be as brutal in many respects as Jim Crow (or slavery), the absence of racial hostility in the public discourse and the steep decline in vigilante racial violence is no small matter. It is also significant that the “whites only” signs are gone and that children of all colors can drink from the same water fountains, swim in the same pools, and play on the same playgrounds. Black children today can even dream of being president of the United States. Those who claim that mass incarceration is “just like” Jim Crow make a serious mistake. Things have changed. The fact that a clear majority of Americans were telling pollsters in the early 1980s—when the drug war was kicking off—that they opposed race discrimination in nearly all its forms should not be dismissed lightly.59 Arguably some respondents may have been telling pollsters what they thought was appropriate rather than what they actually believed, but there is no reason to believe that most of them were lying. It is more likely that most Americans by the early 1980s had come to reject segregationist thinking and values, and not only did not want to be thought of as racist but did not want to be racist. This difference in public attitudes has important implications for reform efforts. Claims that mass incarceration is analogous to Jim Crow will fall on deaf ears and alienate potential allies if advocates fail to make clear that the claim is not meant to suggest or imply that supporters of the current system are racist in the way Americans have come to understand that term. Race plays a major role—indeed, a defining role—in the current system, but not because of what is commonly understood as old-fashioned, hostile bigotry. This system of control depends far more on racial indifference (defined as a lack of compassion and caring about race and racial groups) than racial hostility—a feature it actually shares with its predecessors. All racial caste systems, not just mass incarceration, have been supported by racial indifference. As noted earlier, many whites during the Jim Crow era sincerely believed that African Americans were intellectually and morally inferior. They meant blacks no harm but believed segregation was a sensible system for managing a society comprised of fundamentally different and unequal people. The sincerity of many people’s racial beliefs is what led Martin Luther King Jr. to declare, “Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.” The notion that racial caste systems are necessarily predicated on a desire to harm other racial groups, and that racial hostility is the essence of racism, is fundamentally misguided. Even slavery does not conform to this limited understanding of racism and racial caste. Most plantation owners supported the institution of black slavery not because of a sadistic desire to harm blacks but instead because they wanted to get rich, and black slavery was the most efficient means to that end. By and large, plantation owners were indifferent to the suffering caused by slavery; they were motivated by greed. Preoccupation with the role of racial hostility in earlier caste systems can blind us to the ways in which every caste system, including mass incarceration, has been supported by racial indifference—a lack of caring and compassion for people of other races. White victims of racial caste. We now turn to another important difference between mass incarceration and Jim Crow: the direct harm to whites caused by the current caste system. Whites never had to sit at the back of the bus during Jim Crow, but today a white man may find himself in prison for a drug offense, sharing a cell with a black man. The direct harm caused to whites caused by mass incarceration seems to distinguish it from Jim Crow; yet, like many of the other differences, this one requires some qualification. Some whites were directly harmed by Jim Crow. For example, a white woman who fell in love with a black man and hoped to spend the rest of her life with him was directly harmed by anti-miscegenation laws. The laws were intended for her benefit—to protect her from the corrupting influence of the black man and the “tragedy” of mulatto children—but she was directly harmed nonetheless. Still, it seems obvious that mass incarceration directly harms far more whites than Jim Crow ever did. For some, this fact alone may be reason enough to reject the analogy. An “interracial racial caste system” may seem like an oxy-moron. What kind of racial caste system includes white people within its control? The answer: a racial caste system in the age of colorblindness. If 100 percent of the people arrested and convicted for drug offenses were African American, the situation would provoke outrage among the majority of Americans who consider themselves nonracist and who know very well that Latinos, Asian Americans, and whites also commit drug crimes. We, as a nation, seem comfortable with 90 percent of the people arrested and convicted of drug offenses in some states being African American, but if the figure were 100 percent, the veil of colorblindness would be lost. We could no longer tell ourselves stories about why 90 percent might be a reasonable figure; nor could we continue to assume that good reasons exist for extreme racial disparities in the drug war, even if we are unable to think of such reasons ourselves. In short, the inclusion of some whites in the system of control is essential to preserving the image of a colorblind criminal justice system and maintaining our self-image as fair and unbiased people. Because most Americans, including those within law enforcement, want to believe they are nonracist, the suffering in the drug war crosses the color line. Of course, the fact that white people are harmed by the drug war does not mean they are the real targets, the designated enemy. The harm white people suffer in the drug war is much like the harm Iraqi civilians suffer in U.S. military actions targeting presumed terrorists or insurgents. In any war, a tremendous amount of collateral damage is inevitable. Black and brown people are the principal targets in this war; white people are collateral damage. Saying that white people are collateral damage may sound callous, but it reflects a particular reality. Mass incarceration as we know it would not exist today but for the racialization of crime in the media and political discourse. The War on Drugs was declared as part of a political ploy to capitalize on white racial resentment against African Americans, and the Reagan administration used the emergence of crack and its related violence as an opportunity to build a racialized public consensus in support of an all-out war—a consensus that almost certainly would not have been formed if the primary users and dealers of crack had been white. Economist Glenn Loury made this observation in his book The Anatomy of Racial Inequality. He noted that it is nearly impossible to imagine anything remotely similar to mass incarceration happening to young white men. Can we envision a system that would enforce drug laws almost exclusively among young white men and largely ignore drug crime among young black men? Can we imagine large majorities of young white men being rounded up for minor drug offenses, placed under the control of the criminal justice system, labeled felons, and then subjected to a lifetime of discrimination, scorn, and exclusion? Can we imagine this happening while most black men landed decent jobs or trotted off to college? No, we cannot. If such a thing occurred, “it would occasion a most profound reflection about what had gone wrong, not only with THEM, but with US.”60 It would never be dismissed with the thought that white men were simply reaping what they have sown. The criminalization of white men would disturb us to the core. So the critical questions are: “What disturbs us? What is dissonant? What seems anomalous? What is contrary to expectation?”61 Or more to the point: Whom do we care about? An answer to the last question may be found by considering the drastically different manner that we, as a nation, responded to drunk driving in the mid-1980s, as compared to crack cocaine. During the 1980s, at the same time crack was making headlines, a broad-based, grassroots movement was under way to address the widespread and sometimes fatal problem of drunk driving. Unlike the drug war, which was initiated by political elites long before ordinary people identified it as an issue of extraordinary concern, the movement to crack down on drunk drivers was a bottom-up movement, led most notably by mothers whose families were shattered by deaths caused by drunk driving. Media coverage of the movement peaked in 1988, when a drunk driver traveling the wrong way on Interstate 71 in Kentucky caused a head-on collision with a school bus. Twenty-seven people died and dozens more were injured in the ensuing fire. The tragic accident, known as the Carrollton bus disaster, was one of the worst in U.S. history. In the aftermath, several parents of the victims became actively involved in Mothers Against Drunk Driving (MADD), and one became its national president. Throughout the 1980s, drunk driving was a regular topic in the media, and the term designated driver became part of the American lexicon. At the close of the decade, drunk drivers were responsible for approximately 22,000 deaths annually, while overall alcohol-related deaths were close to 100,000 a year. By contrast, during the same time period, there were no prevalence statistics at all on crack, much less crackrelated deaths. In fact, the number of deaths related to all illegal drugs combined was tiny compared to the number of deaths caused by drunk drivers. The total of all drug-related deaths due to AIDS, drug overdose, or the violence associated with the illegal drug trade, was estimated at 21,000 annually—less than the number of deaths directly caused by drunk drivers, and a small fraction of the number of alcohol-related deaths that occur every year.62 In response to growing concern—fueled by advocacy groups such as MADD and by the media coverage of drunk-driving fatalities—most states adopted tougher laws to punish drunk driving. Numerous states now have some type of mandatory sentencing for this offense—typically two days in jail for a first offense and two to ten days for a second offense.63 Possession of a tiny amount of crack cocaine, on the other hand, carries a mandatory minimum sentence of five years in federal prison. The vastly different sentences afforded drunk drivers and drug offenders speaks volumes regarding who is viewed as disposable—someone to be purged from the body politic—and who is not. Drunk drivers are predominantly white and male. White men comprised 78 percent of the arrests for this offense in 1990 when new mandatory minimums governing drunk driving were being adopted.64 They are generally charged with misdemeanors and typically receive sentences involving fines, license suspension, and community service. Although drunk driving carries a far greater risk of violent death than the use or sale of illegal drugs, the societal response to drunk drivers has generally emphasized keeping the person functional and in society, while attempting to respond to the dangerous behavior through treatment and counseling.65 People charged with drug offenses, though, are disproportionately poor people of color. They are typically charged with felonies and sentenced to prison. Another clue that mass incarceration, as we know it, would not exist but for the race of the imagined enemy can be found in the history of drug-law enforcement in the United States. Yale historian David Musto and other scholars have documented a disturbing, though unsurprising pattern: punishment becomes more severe when drug use is associated with people of color but softens when it is associated with whites.66 The history of marijuana policy is a good example. In the early 1900s, marijuana was perceived—rightly or wrongly—as a drug used by blacks and Mexican Americans, leading to the Boggs Act of the 1950s, penalizing first-time possession of marijuana with a sentence of two to five years in prison.67 In the 1960s, though, when marijuana became associated with the white middle class and college kids, commissions were promptly created to study whether marijuana was really as harmful as once thought. By 1970, the Comprehensive Drug Abuse Prevention and Control Act differentiated marijuana from other narcotics and lowered federal penalties.68 The same drug that had been considered fearsome twenty years earlier, when associated with African Americans and Latinos, was refashioned as a relatively harmless drug when associated with whites. In view of the nation’s treatment of predominately white drunk drivers and drug offenders, it is extremely difficult to imagine that our nation would have declared all-out war on drug offenders if the enemy had been defined in the public imagination as white. It was the conflation of blackness and crime in the media and political discourse that made the drug war and the sudden, massive expansion of our prison system possible. White drug “criminals” are collateral damage in the War on Drugs because they have been harmed by a war declared with blacks in mind. While this circumstance is horribly unfortunate for them, it does create important opportunities for a multiracial, bottom-up resistance movement, one in which people of all races can claim a clear stake. For the first time in our nation’s history, it may become readily apparent to whites how they, too, can be harmed by antiblack racism—a fact that, until now, has been difficult for many to grasp.
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