The New Jim Crow (33 page)

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 race-based 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.