Mass Incarceration & the New Jim Crow

 

To the Teacher
 

Michelle Alexander’s 2010 book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, changed the conversation about race, racism, and incarceration in the United States. As the New York Review of Books commented, "Now and then a book comes along that might in time touch the public and educate social commentators, policymakers, and politicians about a glaring wrong that we have been living with that we also somehow don't know how to face. The New Jim Crow… is such a work."

Seven years after the book’s publication, how to change the criminal justice system and end the laws that maintain racial disparities remains a burning issue.

This lesson is divided into two readings designed to have students explore the ideas of mass incarceration and the New Jim Crow. The first reading explores Alexander’s argument that the criminal justice system has created a caste-like system that relegates millions of people of color to a permanent second-class status. The second reading examines ways people are challenging the policies mass incarceration and the New Jim Crow. Questions for discussion follow each reading.
 


 

Reading 1:
Mass Incarceration in the Age of Colorblindness


More African Americans are under the control of the criminal justice system today than were enslaved in 1850. Black people make up a disproportionate share of the astounding 7 million Americans who are currently behind bars or being monitored by probation or parole officers. While African Americans are 13 percent of the general population, they make up forty percent of the prison population.

Once they’ve been branded as criminals, citizens are often denied housing, social services, and even the right to vote. Over 6 million people in the U.S. are denied the right to vote because of their contact with the criminal justice system. Nationally, one of every 13 African Americans of voting age is disenfranchised. For these African Americans, the gains of the Civil Rights movement have been voided.

In her 2010 book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, civil rights lawyer Michelle Alexander argued that, together, all of this has created a situation in which a disproportionate number of people of color have been relegated to a permanent second-class status.

Alexander’s book changed the conversation about race, racism, and incarceration in the United States. The New York Review of Books commented, "Now and then a book comes along that might in time touch the public and educate social commentators, policymakers, and politicians about a glaring wrong that we have been living with that we also somehow don't know how to face. The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander is such a work."

Seven years after the book’s publication, how to change the criminal justice system and end the laws that maintain racial disparities remains a burning issue.

In a story about Alexander’s book, National Public Radio described how mass incarceration today mirrors the Jim Crow laws that segregated America until the mid-1960s:

Under Jim Crow laws, black Americans were relegated to a subordinate status for decades. Things like literacy tests for voters and laws designed to prevent blacks from serving on juries were commonplace in nearly a dozen Southern states.

In her booklegal scholar Michelle Alexander writes that many of the gains of the civil rights movement have been undermined by the mass incarceration of black Americans in the war on drugs. She says that although Jim Crow laws are now off the books, millions of blacks arrested for minor crimes remain marginalized and disfranchised, trapped by a criminal justice system that has forever branded them as felons and denied them basic rights and opportunities that would allow them to become productive, law-abiding citizens.
 

In the introduction to The New Jim Crow Alexander argues that the punitive criminal justice system, combined with a “war on drugs” targeting poor people of color, serves as an extension of previous strategies to deny rights to people of color. She writes:

In each generation, new tactics have been used for achieving the same goals—goals shared by the Founding Fathers. Denying African Americans citizenship was deemed essential to the formation of the original union. Hundreds of years later, America is still not an egalitarian democracy. The arguments and rationalizations that have been trotted out in support of racial exclusion and discrimination in its various forms have changed and evolved, but the outcome has remained largely the same. An extraordinary percentage of black men in the United States are legally barred from voting today, just as they have been throughout most of American history. They are also subject to legalized discrimination in employment, housing, education, public benefits, and jury service, just as their parents, grandparents, and great-grandparents once were….

[Now] we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.


Michelle Alexander’s argument presents a strong challenge to those who believe that the injustices perpetuated under the Jim Crow system are a thing of the past.
 


 

For Discussion
 

  1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?
     
  2. Michelle Alexander argues that we have not done away with Jim Crow laws; rather, we have merely “redesigned” them. According to the reading, how is the criminal justice system of today parallel to the Jim Crow laws of the early-to-mid-1900s?
     
  3. Were you aware that, in many states, being convicted of a criminal offense can result in the loss of the right to vote? What do you think of this policy? Explain your position.
     
  4. In the state of Florida alone, more than 1.5 million people have been stripped of their right to vote because of their criminal records. Given that, in recent decades, the presidential vote in the state has been determined by a margin far smaller than that, this could easily be enough to swing major elections. Do you think this should be the subject of greater public discussion, or is it an acceptable part of our electoral system?
     
  5. Beyond the large number of people currently in prison or jail, a far greater number of people are on parole or probation. What do you think of Michelle Alexander’s argument that the criminal justice system has relegated these individuals to permanent second-class citizenship?

 


 

Reading 2: 
What Can We Do About the New Jim Crow?
 

Human rights activists, relatives of prisoners, and civil rights lawyers have long worked to change the parts of the criminal justice system responsible for what Michelle Alexander dubs the New Jim Crow. Trying to tackle all of the different facets of the criminal justice system that result in discrimination can seem overwhelming. However, by focusing on various specific elements, groups of concerned citizens have been able to make some progress.

A great deal of activism and advocacy has been focused on challenging the way police disproportionately target African Americans, especially young men of color. For example, a 2016 U.S. Justice Department report found that the Baltimore Police Department used “enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches and arrests of African Americans” – even though illegal items were found twice as often on white individuals than blacks during vehicle stops. The report also found that police arrested black people five times more than others for drug possession, yet black drug use is about the same or only slightly higher as that of whites.

Such findings have led not only to extensive protests and many reform proposals, but to growing awareness of police officers’ “implicit bias,” a term that the Justice Department defines as “the unconscious or subtle associations that individuals make between groups of people and stereotypes about those groups.” Implicit bias training has spread to police departments across the country as one way to reduce the disproportionate targeting of people of color.

Other activists have focused on the issue of sentencing – and in particular the long prison sentences meted out by our justice system, especially for people of color. Sentences imposed on Black males in the federal system are nearly 20 percent longer than those imposed on white males convicted of similar crimes, according to the American Civil Liberties Union.

As part of the so-called war on drugs of the 1980s, the U.S. began requiring harsh sentences for drug offenses, which contributed to our enormous prison population. Since the 1980s, the number of Americans incarcerated for drug offenses has climbed dramatically—from 40,900 in 1980 to 469,545 in 2015. Laws such as “mandatory minimums” prescribe a minimum length of sentence for people convicted of drug crimes. In 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison. By 2004, that average had grown to 62 months in prison.    

Sentencing reform advocates have campaigned to allow judges more discretion in determining appropriate sentences, allowing those convicted of crimes to more quickly return to society and to restore relationships with their communities. Victoria Law, an author who writes frequently about mass incarceration, described one win for sentencing reform advocates in an October 12, 2016, article in Waging Nonviolence:

On October 6, the Justice Department announced that nearly 6,000 people in federal prisons will be going home early. The move, U.S. officials told the Washington Post, is an effort to both reduce overcrowding and to provide relief to people who received harsh drug war sentences over the past three decades.

In 2014, the U.S. Sentencing Commission, an agency that sets sentencing policies for federal crimes, held two public hearings about drug sentencing. At these hearings, commission members heard testimony from then-Attorney General Eric Holder, federal judges, federal public defenders, law enforcement and sentencing advocates. The commission also received more than 80,000 public comment letters, most of which supported the change. As a result, the commission voted unanimously to reduce the potential punishment for drug offenses. It also made that change retroactive, meaning that 46,000 people who were sentenced during the zealous years of the drug war are eligible to apply for reduced sentencing and early release. The 6,000 people who will soon be rejoining their families are the first wave of early releases; the commission estimated that another 8,550 people would be eligible for release before November 1, 2016.
 

Another area of activism has been restoring the rights of people who have been incarcerated. This includes challenging employment discrimination. In several states, advocates have campaigned for local government and individual companies to remove the box on job applications that people must check if they have been convicted of a felony. Prisoners’ rights advocates argue that having such boxes on job applications means that employers can discriminate against people who have been convicted of a felony, making it that much harder for people to get a job and put their lives back together after prison. “Banning the box,” as advocates often call it, gives people a better chance of being hired.

Michelle Natividad Rodriguez and Beth Avery, staff attorneys for the National Employment Law Project describe the “ban the box” campaign and its successes so far on their website:

Nationwide, over 150 cities and counties have adopted what is widely known as “ban the box” so that employers consider a job candidate’s qualifications first, without the stigma of a criminal record… [T]hese initiatives provide applicants a fair chance by removing the conviction history question on the job application and delaying the background check inquiry until later in the hiring.

Momentum for the policy has grown exponentially, particularly in recent years. Federally, President Obama endorsed ban-the-box by directing federal agencies to delay inquiries into job applicants’ records until later in the hiring process.

There are a total of 27 states representing nearly every region of the country that have adopted the policies —California (2013, 2010), Colorado (2012), Connecticut (2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Kentucky (2017), Louisiana (2016), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oklahoma (2016), Oregon (2015), Pennsylvania (2017), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2015, 2016), Virginia (2015), and Wisconsin (2016). Nine states—Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont—have removed the conviction history question on job applications for private employers, which advocates embrace as the next step in the evolution of these policies.

More jurisdictions are also adopting policies in addition to ban-the-box, such as incorporating the best practices of the 2012 U.S. Equal Employment Opportunity Commission (EEOC) guidance on the use of arrest and conviction records in employment decisions and adopting innovative strategies such as targeted hiring. Robust fair-chance employment laws ensure a fairer decision-making process by requiring employers to consider job-relatedness of a conviction, time passed, and mitigating circumstances or rehabilitation evidence.                            
                                                                                  

Prisoners’ rights advocates have also made progress in another area: restoring the right to vote for people who have been convicted of crimes. Currently, 48 states place restrictions on voting for people who have been convicted of a felony, either preventing them from voting while serving their sentence or probation, or barring them from voting for life.

Activists have worked hard to restore the civil right of voting for people with felony convictions. They have had some success. In his May 19, 2017, testimony before the U.S. Commission on Civil Rights, Marc Mauer, Executive Director of The Sentencing Project, described some of the gains enfranchisement activists have made:                                                          

Over the past two decades 24 states have enacted reforms to disenfranchisement policies. In a number of states these reforms have eliminated various categories of felony disenfranchisement. In New Mexico, for example, the legislature ended the prohibition on voting post-sentence, and Delaware has done the same for almost all offense categories.                                                           

Several states have extended voting rights to individuals currently under community supervision. Connecticut granted probationers the right to vote in 2001 and Rhode Island voters approved a ballot measure to enfranchise persons on probation or parole in 2006. Maryland legislators first repealed the ban on voting post-sentence and subsequently extended voting to those on probation or parole last year….

Felony disenfranchisement policies represent an antiquated restriction on democratic participation that should have no place in 21st century America. Various rationales have been advanced to support the need for such policies, but without any convincing evidence….                              

Felony disenfranchisement policies run counter to public safety objectives by creating a group of second-class citizens. In order for people to successfully transition home from prison they need to establish or renew connections with the world of work, family, peer groups, and the broader community. Participation in the electoral process is one means by which citizens can affirm their connection to the broader community and play a constructive role in public policy debates.
 

Campaigns around voting rights, reforming sentencing requirements, and banning the box are examples of how people are working to combat the New Jim Crow. Efforts in these and other areas continue today, providing opportunities for people across the country to get involved.
 


 

For Discussion
 

  1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?
     
  2. According to the reading, what does “ban the box” mean? How might a “ban the box” campaign serve as a step toward ending the New Jim Crow?
     
  3. In the reading, Marc Mauer, Executive Director of The Sentencing Project, contends that “Felony disenfranchisement policies run counter to public safety objectives by creating a group of second-class citizens.” What do you think of this argument? What might the reasoning behind his position be?
     
  4. What are “mandatory minimum” sentences? Why do advocates believe that judges should have more discretion in determining sentences for drug crimes?

 


 

Additional Activity


If students want to take action to address problems related to mass incarceration, urge them to identify and research organizations they might want to work with.

The organization Legal Services for Prisoners with Children has a project called All of Us or None, which lists many ways to get involved. Some examples from the group include:

  • Voting Rights for All – Voter registration for formerly incarcerated people and voter education so people in jail will know what their voting rights are.
  • Clean Slate – Legal advocates and service providers aid people with certain criminal conviction records to get those records dismissed and to apply for pardons and certificates of rehabilitation.
  • Freedom School – A leadership development program for formerly incarcerated people and family members of people impacted by incarceration.

If students are interested in All of Us or None, have them work in small groups to consider the organization’s campaigns, find one that they think is promising, and consider how they might support it. Have each group make a presentation to the class describing the specific demands and history of the campaign they’ve chosen and their own plan of action.