Chapter 5, The New Jim Crow: Obama—the Promise and the Peril By Michelle Alexander

Chapter 5, The New Jim Crow: Obama—the Promise and the Peril By Michelle Alexander

This dynamic poses particular risks for racial justice advocacy during an Obama presidency. On the one hand, the election of Barack Obama to the presidency creates an extraordinary opportunity for those seeking to end the system of mass incarceration in America. Obama’s stated positions on criminal justice reform suggest that he is opposed to the War on Drugs and the systematic targeting of African Americans for mass incarceration.48 Shouldn’t we trust him, now that he is holding the reins of power, to do the right thing?

Trust is tempting, especially because Obama himself violated our nation’s drug laws and almost certainly knows that his life would not have unfolded as it did if he had been arrested on drug charges and treated like a common criminal. As he wrote in his memoir about his wayward youth, “Pot had helped, and booze; maybe a little blow when you could afford it.” Unlike Bill Clinton, who famously admitted he experimented with marijuana on occasion “but didn’t inhale,” Obama has never minimized his illegal drug use. As he said in a 2006 speech to the American Society of Magazine Editors, “Look, you know, when I was a kid, I inhaled.

Frequently. That was the point.”49 Those “bad decisions,” Obama has acknowledged, could have led him to a personal dead end. “Junkie. Pothead. That’s where I’d have been headed: the final, fatal role of the young would-be black man.” No doubt if Obama had been arrested and treated like a common criminal, he could have served years in prison and been labeled a drug felon for life. What are the chances he would have gone to Harvard Law School, much less become president of the United States, if that had happened? It seems reasonable to assume that Obama, who knows a little something about poverty and the temptations of drugs, would have a “there but for the grace of God go I” attitude about the millions of African and Latino men imprisoned for drug offenses comparable to his own or saddled for life with felony records.

But before we kick back, relax, and wait for racial justice to trickle down, consider this: Obama chose Joe Biden, one of the Senate’s most strident drug warriors, as his vice president. The man he picked to serve as his chief of staff in the White House, Rahm Emanuel, was a major proponent of the expansion of the drug war and the slashing of welfare rolls during President Clinton’s administration. And the man he tapped to lead the U.S. Department of Justice—the agency that launched and continues to oversee the federal war on drugs—is an African American former U.S. attorney for the District of Columbia who sought to ratchet up the drug war in Washington, D.C., and fought the majority black D.C. City Council in an effort to impose harsh mandatory minimums for marijuana possession.

Moreover, on the campaign trail, Obama took a dramatic step back from an earlier position opposing the death penalty, announcing that he now supports the death penalty for child rapists—even if the victim is not killed—even though the U.S. Supreme Court ruled the death penalty for nonhomicides unconstitutional and international law strongly disfavors the practice. The only countries that share Obama’s view are countries like Saudi Arabia, Egypt, and China, which allow the deathpenalty for things like adultery and tax evasion. So why did Obama, on the campaign trail, go out of his way to announce disagreement with a Supreme Court decision ruling the death penalty for child rapists unconstitutional? Clearly he was attempting to immunize himself from any attempt to portray him as “soft” on crime—a tactic reminiscent of Bill Clinton’s decision to fly back to Arkansas during the 1992 presidential campaign to oversee the execution of a mentally retarded black man.

Seasoned activists may respond that all of this is “just politics,” but, as we have seen in earlier chapters, they are the same politics that gave rise to the New Jim Crow. Now that crime seems to be rising again in some ghetto communities, Obama is pledging to revive President Clinton’s Community Oriented Policing Services (COPS) program and increase funding for the

Byrne grant program—two of the worst federal drug programs of the Clinton era.50 These programs, despite their benign names, are responsible for the militarization of policing, SWAT teams, Pipeline drug task forces, and the laundry list of drug-war horrors described in chapter 2.

Clinton once boasted that the COPS program, which put tens of thousands of officers on the streets, was responsible for the dramatic fifteen-year drop in violent crime that began in the 1990s. Recent studies, however, have shown that is not the case. A 2005 report by the Government Accountability Office concluded the program may have contributed to a 1 percent reduction in crime — at a cost of $8 billion.51 A peer-reviewed study in the journal Criminology found that the COPS program, despite the hype, “had little or no effect on crime.”52

And while Obama’s drug czar, former Seattle Police Chief Gil Kerlikowske, has said the War on Drugs should no longer be called a war, Obama’s budget for law enforcement is actually worse than the Bush administration’s in terms of the ratio of dollars devoted to prevention and drug treatment as opposed to law enforcement.53 Obama, who is celebrated as evidence of America’s triumph over race, is proposing nothing less than revving up the drug war through the same failed policies and programs that have systematically locked young men of color into a permanent racial undercaste.

The unique and concerning situation racial justice advocates now face is that the very people who are most oppressed by the current caste system — African Americans — may be the least likely to want to challenge it, now that a black family is living in the White House. If Obama were white, there would be no hesitation to remind him of his youthful drug use when arguing that he should end the drug war and make good on his promises to end unjust mandatory minimums. But do African Americans want the media to talk about Obama’s drug use? Do African Americans want to pressure Obama on any issue, let alone issues of race? To go one step further, could it be that many African Americans would actually prefer to ignore racial issues during Obama’s presidency, to help ensure him smooth sailing and a triumphant presidency, no matter how bad things are for African Americans in the meantime?

The fact that the last question could plausibly be answered yes raises serious questions for the civil rights community. Have we unwittingly exaggerated the importance of individuals succeeding within pre-existing structures of power, and thereby undermined King’s call for a “complete restructuring” of our society? Have we contributed to the disempowerment and passivity of the black community, not only by letting the lawyers take over, but also by communicating the message that the best path—perhaps the only path—to the promised land is infiltrating elite institutions and seizing power at the top, so racial justice can trickle down?

Torres and Guinier suggest the answer to these questions may be yes. They observe that, “surprisingly, strategists on both the left and right, despite their differences, converge on the individual as the unit of power.”54

Conservatives challenge the legitimacy of group rights or race consciousness and argue that the best empowerment strategy is entrepreneurship and individual initiative. Civil rights advocates argue that individual group members “represent” the race and that hierarchies of power that lack diversity are illegitimate. The theory is, when black individuals achieve power for themselves, black people as a group benefit, as does society as awhole. “Here we see both liberals and conservatives endorsing the same meta-narrative of American individualism: When individuals get ahead, the group triumphs. When individualssucceed, American democracy prevails.”55

The absence of a thoroughgoing structural critique of the prevailing racial order explains why so many civil rights advocates responded to Barack Obama’s election with glee, combined with hasty reminders that “we still have a long way to go.” The predictable response from the casual observer is: well, how much further? A black man was just elected president. How much further do black people want to go? If a black person can be elected president, can’t a black person do just about anything now?

All of Us or None

At the same time that many civil rights advocates have been pursuing lawyer-driven, trickle- down strategies for racial justice, a growing number of formerly incarcerated men and women have been organizing in major cities across the United States, providing assistance to those newly released from prison and engaging in grassroots political activism in pursuit of basic civil rights. One such organization, based in Oakland, California, is named All of Us or None. The name explicitly challenges a politics that affords inclusion and acceptance for a few but guarantees exclusion for many. In spirit, it asserts solidarity with the “least of these among us.”

Diversity-driven affirmative action, as described and implemented today, sends a different message. The message is that “some of us” will gain inclusion. As a policy, it is blind to those who are beyond its reach, the colored faces at the bottom of the well. One policy alone can’t save the world, the skeptic might respond. True enough. But what if affirmative action, as it has been framed and debated, does more harm than good, viewed from the perspective of “all of us”?

This brings us to a critical question: who is the us that civil rights advocates are fighting for? Judging from the plethora of groups that have embarked on their own civil rights campaigns since Martin Luther King Jr.’s assassination—women, gays, immigrants, Latinos, Asian Americans—the answer seems to be that us includes everyone except white men.

This result is not illogical. When Malcolm X condemned “the white man” and declared him the enemy, he was not, of course, speaking about any particular white man, but rather the white, patriarchal order that characterized both slavery and Jim Crow. Malcolm X understood that the United States was created by and for privileged white men. It was white men who dominated politics, controlled the nation’s wealth, and wrote the rules by which everyone else was forced to live. No group in the United States can be said to have experienced more privilege, and gone to greater lengths to protect it, than “the white man.”

Yet the white man, it turns out, has suffered too. The fact that his suffering has been far less extreme, and has not been linked to a belief in his inherent inferiority, has not made his suffering less real. Civil rights advocates, however, have treated the white man’s suffering as largely irrelevant to the pursuit of the promised land. As civil rights lawyers unveiled plans to desegregate public schools, it was poor and working-class whites who were expected to bear the burden of this profound social adjustment, even though many of them were as desperate for upward social mobility and quality education as African Americans.

According to the 1950 census, among Southerners in their late twenties, the state-by-state percentages of functional illiterates (people with less than five years of schooling) for whites on farms overlapped with those for blacks in the cities. The majority of Southern whites were better off than Southern blacks, but they were not affluent or well educated by any means; they were semiliterate (with less than twelve years of schooling). Only a tiny minority of whites were affluent and welleducated. They stood far apart from the rest of the whites and virtually all blacks.56

What lower-class whites did have was what W.E.B. Du Bois described as “the public andpsychological wage” paid to white workers, who depended on their status and privileges aswhites to compensate for low pay and harsh working conditions.57 As described in chapter 1, time and time again, poor and working-class whites were persuaded to choose their racial status interests over their common economic interests with blacks, resulting in the emergence of new caste systems that only marginally benefited whites but were devastating for African Americans.

In retrospect, it seems clear that nothing could have been more important in the 1970s and 1980s than finding a way to create a durable, interracial, bottom-up coalition for social and economic justice to ensure that another caste system did not emerge from the ashes of Jim Crow. Priority should have been given to figuring out some way for poor and working-class whites to feel as though they had a stake—some tangible interest—in the nascent integrated racial order. As Lani Guinier points out, however, the racial liberalism expressed in the Brown v. Board of Education decision and endorsed by civil rights litigators “did not offer poor whites even an elementary framework for understanding what they might gain as a result of integration.”58

Nothing in the opinion or in the subsequent legal strategy made clear that segregation had afforded elites a crucial means of exercising social control over poor and working-class whites as well as blacks. The Southern white elite, whether planters or industrialists, had successfully endeavored to make all whites think in racial rather than class terms, predictably leading whites to experience desegregation, as Derrick Bell put it, as a net “loss.”59

Given that poor and working-class whites (not white elites) were the ones who had their world rocked by desegregation, it does not take a great leap of empathy to see why affirmative action could be experienced as salt in a wound. Du Bois once observed that the psychological  wage of whiteness put “an indelible black face to failure.”60 Yet with the advent of affirmative action, suddenly African Americans were leapfrogging over poor and working-class whites on their way to Harvard and Yale and taking jobs in police departments and fire departments that had once been reserved for whites. Civil rights advocates offered no balm for the wound, publicly resisting calls for class-based affirmative action and dismissing claims of unfairness on the grounds that whites had been enjoying racial preferences for hundreds of years. Resentment, frustration, and anger expressed by poor and working-class whites was chalked up to racism, leading to a subterranean discourse about race and to implicitly racial political appeals, but little honest dialogue.

Perhaps the time has come to give up the racial bribes and begin an honest conversation about race in America. The topic of the conversation should be how us can come to include all of us. Accomplishing this degree of unity may mean giving up fierce defense of policies and strategies that exacerbate racial tensions and produce for racially defined groups primarily psychological or cosmetic racial benefits.

Of course, if meaningful progress is to be made, whites must give up their racial bribes too, and be willing to sacrifice their racial privilege. Some might argue that in this game of chicken, whites should make the first move. Whites should demonstrate that their silence in the drug war cannot be bought by tacit assurances that their sons and daughters will not be rounded up en masse and locked away. Whites should prove their commitment to dismantling not only mass incarceration, but all of the structures of racial inequality that guarantee for whites the resilience of white privilege. After all, why should “we” give up our racial bribes if whites have been unwilling to give up theirs? In light of our nation’s racial history, that seems profoundly unfair. But if your strategy for racial justice involves waiting for whites to be fair, history suggests it will be a long wait. It’s not that white people are more unjust than others. Rather it seems that an aspect of human nature is the tendency to cling tightly to one’s advantages and privileges and to rationalize the suffering and exclusion of others. This tendency is what led

Frederick Douglass to declare that “power concedes nothing without a demand; it never has and it never will.”

So what is to be demanded in this moment in our nation’s racial history? If the answer is more power, more top jobs, more slots in fancy schools for “us”—a narrow, racially defined us that excludes many—we will continue the same power struggles and can expect to achieve many of the same results. Yes, we may still manage to persuade mainstream voters in the midst of an economic crisis that we have relied too heavily on incarceration, that prisons are too expensive, and that drug use is a public health problem, not a crime.

But if the movement that emerges to end mass incarceration does not meaningfully address the racial divisions and resentments that gave rise to mass incarceration, and if it fails to cultivate an ethic of genuine care, compassion, and concern for every human being—of every class, race, and nationality— within our nation’s borders, including poor whites, who are often pitted against poor people of color, the collapse of mass incarceration will not mean the death of racial caste in America. Inevitably a new system of racialized social control will emerge—one that we cannot foresee, just as the current system of mass incarceration was not predicted by anyone thirty years ago. No task is more urgent for racial justice advocates today than ensuring that America’s current racial caste system is its last.

Given what is at stake at this moment in history, bolder, more inspired action is required than we have seen to date. Piecemeal, top-down policy reform on criminal justice issues, combined with a racial justice discourse that revolves largely around the meaning of Barack Obama’s election and “post-racialism,” will not get us out of our nation’s racial quagmire. We must flip the script. Taking our cue from the courageous civil rights advocates who brazenly refused to defend themselves, marching unarmed past white mobs that threatened to kill them, we, too, must be the change we hope to create. If we want to do more than just end mass incarceration — if we want to put an end to the history of racial caste in America—we must lay down our racial bribes, join hands with people of all colors who are not content to wait for change to trickle down, and say to those who would stand in our way: Accept all of us or none.

That is the basic message that Martin Luther King Jr. aimed to deliver through the Poor People’s Movement back in 1968. He argued then that the time had come for racial justice advocates to shift from a civil rights to a human rights paradigm, and that the real work of move- ment building had only just begun.61

A human rights approach, he believed, would offer far greater hope for those of us determined to create a thriving, multiracial, multiethnic democracy free from racial hierarchy than the civil rights model had provided to date. It would offer a positive vision of what we can strive for—a society in which all human beings of all races are treated with dignity, and have the right to food, shelter, health care, education, and

security.62 This expansive vision could open the door to meaningful alliances between poor and working-class people of all colors, who could begin to see their interests as aligned, rather than in conflict—no longer in competition for scarce resources in a zero-sum game.

A human rights movement, King believed, held revolutionary potential. Speaking at a Southern Christian Leadership Conference staff retreat in May 1967, he told SCLC staff, who were concerned that the Civil Rights Movement had lost its steam and its direction, “It is necessary for us to realize that we have moved from the era of civil rights to the era of human rights.” Political reform efforts were no longer adequate to the task at hand, he said. “For the last 12 years, we have been in a reform movement…. [But] after Selma and the voting rights bill, we moved into a new era, which must be an era of revolution. We must see the great distinction between a reform movement and a revolutionary movement. We are called upon to raise certain basic questions about the whole society.”63

More than forty years later, civil rights advocacy is stuck in a model of advocacy King was determined to leave behind. Rather than challenging the basic structure of society and doing the hard work of movement building—the work to which King was still committed at the end of his life—we have been tempted too often by the opportunity for people of color to be included within the political and economic structure as-is, even if it means alienating those who are necessary allies. We have allowed ourselves to be willfully blind to the emergence of a new caste system—a system of social excommunication that has denied millions of African Americans basic human dignity.

The significance of this cannot be overstated, for the failure to acknowledge the humanity and dignity of all persons has lurked at the root of every racial caste system. This common thread explains why, in the 1780s, the British Society for the Abolition of Slavery adopted as its official seal a woodcut of a kneeling slave above a banner that read, “AM I NOT A MAN AND A BROTHER?” That symbol was followed more than a hundred years later by signs worn around the necks of black sanitation workers during the Poor People’s Campaign answering the slave’s question with the simple statement, I AM A MAN.

The fact that black men could wear the same sign today in protest of the new caste system suggests that the model of civil rights advocacy that has been employed for the past several decades is, as King predicted, inadequate to the task at hand. If we can agree that what is needed now, at this critical juncture, is not more tinkering or tokenism, but as King insisted forty years ago, a “radical restructuring of our society,” then perhaps we can also agree that a radical restructuring of our approach to racial justice advocacy is in order as well.

All of this is easier said than done, of course. Change in civil rights organizations, like change in society as a whole, will not come easy. Fully committing to a vision of racial justice that includes grassroots, bottom-up advocacy on behalf of “all of us” will require a major reconsideration of priorities, staffing, strategies, and messages. Egos, competing agendas, career goals, and inertia may get in the way. It may be that traditional civil rights organizations simply cannot, or will not, change. To this it can only be said, without a hint of disrespect: adapt or die.

If Martin Luther King Jr. is right that the arc of history is long, but it bends toward justice, a new movement will arise; and if civil rights organizations fail to keep up with the times, they will pushed to the side as another generation of advocates comes to the fore. Hopefully the new generation will be led by those who know best the brutality of the new caste system—a group with greater vision, courage, and determination than the old guard can muster, trapped as they may be in an outdated paradigm. This new generation of activists should not disrespect their elders or disparage their contributions or achievements; to the contrary, they should bow their heads in respect, for their forerunners have expended untold hours and made great sacrifices in an elusive quest for justice. But once respects have been paid, they should march right past them, emboldened, as King once said, by the fierce urgency of now.

Those of us who hope to be their allies should not be surprised, if and when this day comes, that when those who have been locked up and locked out finally have the chance to speak and truly be heard, what we hear is rage. The rage may frighten us; it may remind us of riots, uprisings, and buildings aflame. We may be tempted to control it, or douse it with buckets of doubt, dismay, and disbelief. But we should do no such thing. Instead, when a young man who was born in the ghetto and who knows little of life beyond the walls of his prison cell and the invisible cage that has become his life, turns to us in bewilderment and rage, we should do nothing more than look him in the eye and tell him the truth. We should tell him the same truth the great African American writer James Baldwin told his nephew in a letter published in 1962, in one of the most extraordinary books ever written, The Fire Next Time. With great passion and searing conviction, Baldwin had this to say to his young nephew:

This is the crime of which I accuse my country and my countrymen, and for which neither I nor time nor history will ever forgive them, that they have destroyed and are destroying hundreds of thousands of lives and do not know it and do not want to know it…. It is their innocence which constitutes the crime…. This innocent country set you down in a ghetto in which, in fact, it intended that you should perish. The limits of your ambition were, thus, expected to be set forever. You were born into a society which spelled out with brutal clarity, and in as many ways as possible, that you were a worthless human being. You were not expected to aspire to excellence: you were expected to make peace with mediocrity…. You have, and many of us have, defeated this intention; and, by a terrible law, a terrible paradox, those innocents who believed that your imprisonment made them

safe are losing their grasp on reality. But these men are your brothers—your lost, younger brothers. And if the word integration means anything, this is what it means: that we, with love, shall force our brothers to see themselves as they are, to cease fleeing from reality and begin to change it. For this is your home, my friend, do not be driven from it; great men have done great things here, and will again, and we can make America what it must become. It will be hard, but you come from sturdy, peasant stock, men who picked cotton and dammed rivers and built railroads, and, in the teeth of the most terrifying odds, achieved an unassailable and monumental dignity. You come from a long line of great poets since Homer. One of them said, The very time I thought I was lost, My dungeon shook and my chains fell off…. We cannot be free until they are free. God bless you, and safe are losing their grasp on reality. But these men are your brothers—your lost, younger brothers. And if the word integration means anything, this is what it means: that we, with love, shall force our brothers to see themselves as they are, to cease fleeing from reality and begin to change it. For this is your home, my friend, do not be driven from it; great men have done great things here, and will again, and we can make America what it must become. It will be hard, but you come from sturdy, peasant stock, men who picked cotton and dammed rivers and built railroads, and, in the teeth of the most terrifying odds, achieved an unassailable and monumental dignity. You come from a long line of great poets since Homer. One of them said, The very time I thought I was lost, My dungeon shook and my chains fell off…. We cannot be free until they are free. God bless you, andGodspeed.64

Chapter 5: The New Jim Crow

1 Michael Eric Dyson, “Obama’s Rebuke of Absentee Black Fathers,” Time, June 19, 2008.
2 Sam Roberts, “51% of Women Now Living with a Spouse, New York Times, Jan. 16, 2007.

3 See Jonathan Tilove, “Where Have All the Men Gone? Black Gender Gap Is Widening,” Seattle Times, May 5, 2005; and Jonathan Tilove, “Where Have All the Black Men Gone?” Star-Ledger (Newark), May 8, 2005.

4 Ibid.
5 Cf., Salim Muwakkil, “Black Men: Missing,” In These Times, June 16, 2005. 6 G. Garvin, “Where Have the Black Men Gone?,” Ebony, Dec. 2006.

7 One in eleven black adults was under correctional supervision at year end 2007, or approximately 3.5 million people. See Pew Center on the States, One in 31: The Long Reach of

American Corrections (Washington, DC: Pew Charitable Trusts, Mar. 2009). According to the 1850 Census, approximately 3.2 million black people were slaves.

8 See Andrew J. Cherlin, Marriage, Divorce, Remarriage, rev. ed., (Cambridge, MA: Harvard University Press, 1992), 110.

9 See Glenn C. Loury, Race, Incarceration, and American Values (Cambridge, MA: MIT Press, 2008), commentary by Pam Karlan.

10 Stanley Cohen, States of Denial: Knowing About Atrocities and Suffering (Cambridge, UK: Polity, 2001), 4-5.

11 Iris Marilyn Young, Inclusion and Democracy (New York: Oxford University Press, 2000), 92- 99.

12 Marilyn Frye, “Oppression,” in The Politics of Reality (Trumansburg, NY: Crossing Press, 1983).

13 See Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: The New Press, 2002); and Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute Press, 2005).

14 Negley K. Teeters and John D. Shearer, The Prison at Philadelphia, Cherry Hill: The Separate System of Prison Discipline, 1829-1913 (New York: Columbia University Press, 1957), 84.

15 See David Musto, The American Disease: Origins of Narcotics Control (New York: Oxford University Press, 3rd ed., 1999), 4, 7, 43-44, 219-20, describing the role of racial bias in earlier drug wars; and Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (University of Chicago Press, 2007), 37-90, describing racial bias in alcohol prohibition, as well as other drug wars.

16 Mary Pattillo, David F. Weiman, and Bruce Western, Imprisoning America: The Social Effect of Mass Incarceration (New York: Russell Sage Foundation, 2004), 2.

17 Paul Street, The Vicious Circle: Race, Prison, Jobs, and Community in Chicago, Illinois, and the Nation (Chicago Urban League, Department of Research and Planning, 2002).

18 Street, Vicious Circle, 3.
19 Alden Loury, “Black Offenders Face Stiffest Drug Sentences,” Chicago Reporter , Sept. 12,

20 Ibid.
21 Street, Vicious Circle, 15.

22 Donald G. Lubin et al., Chicago Metropolis 2020: 2006 Crime and Justice Index, (Washington, DC: Pew Center on the States, 2006), 5,

23 Ibid., 37. 24 Ibid., 35.

25 Ibid., 3; see also Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006), 12.

26 Street, Vicious Circle, 3. 27 Ibid.
28 Ibid.

29 See chapter 1, page 61, which describes the view that President Ronald Reagan’s appeal derived primarily from the “emotional distress of those who fear or resent the Negro, and who expect Reagan somehow to keep him ‘in his place’ or at least echo their own anger and frustration.”

30 For an excellent discussion of the history of felon disenfranchisement laws, as well as their modern day impact, see Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (New York: Oxford University Press, 2006).

31 Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998); see also Martine J. Price, Note and Comment: Addressing Ex-Felon Disenfranchisement: Legislation v. Litigation, Brooklyn Journal of Law and Policy 11 (2002): 369, 382-83.

32 See Jamie Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Washington, DC: Sentencing Project, 1998).

33 Loury, Race, Incarceration, and American Values, 48

34 See Eric Lotke and Peter Wagner, “Prisoners of the Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From,” Pace Law Review 24 (2004): 587, available at

35 See Batson v. Kentucky 476 U.S. 79 (1986), discussed in chapter 3, page 146. 36 See Purkett v. Elm, 514 U.S. 765 discussed in chapter 3, page 150.

37 Brian Kalt, “The Exclusion of Felons from Jury Service,” American University Law Review 53 (2003): 65.

38 See Dred Scott v. Sandford, 60 U.S. (How. 19) 393 (1857). 39 Travis, But They All Come Back, 132.

40 Peter Wagner, “Prisoners of the Census”; for more information, see

41 Travis, But They All Come Back, 281, citing James Lynch and William Sabol, Prisoner Reentry in Perspective, Crime Policy Report, vol. 3 (Washington, DC: Urban Institute, 2001).

42 Dina Rose, Todd Clear, and Judith Ryder, Drugs, Incarcerations, and Neighborhood Life: The Impact of Reintegrating Offenders into the Community (Washington, DC: U.S. Department of Justice, National Institute of Justice, 2002).

43 Sudhir Alladi Venkatesh, The Robert Taylor Homes Relocation Study (New York: Center for Urban Research and Policy, Columbia University, 2002).

44 Street, Vicious Circle, 16. 45 Ibid., 17.

46 Keynote address by Paula Wolff at Annual Luncheon for Appleseed Fund for Justice and Chicago Council of Lawyers, Oct. 7, 2008,

47 Katherine Beckett and Theodore Sasson, The Politics of Injustice: Crime and Punishment in America (Thousand Oaks, CA: Sage Publications, 2004), 36, citing Mercer Sullivan, Getting Paid: Youth Crime and Work in the Inner City (New York: Cornell University Press, 1989).

48 Ibid.
49 Loïc Wacquant, “The New ‘Peculiar Institution’: On the Prison as Surrogate Ghetto,”

Theoretical Criminology 4, no. 3 (2000): 377-89.

50 See, e.g., Douglas Massey and Nancy Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, MA: Harvard University Press, 1993).

51 Whites are far more likely than African Americans to complete college, and college graduates are more likely to have tried illicit drugs in their lifetime when compared to adults who have not completed high school. See U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Findings from the 2000 National Household Survey on Drug Abuse (Rockville, MD: 2001). Adults who have not completed high school are disproportionately African American.

52 Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (University of Chicago Press, 2007), 90-91, 146-47.

53 John Edgar Wideman, “Doing Time, Marking Race,” The Nation, Oct. 30, 1995.
54 See Julia Cass and Connie Curry, America’s Cradle to Prison Pipeline (New York: Children’s

Defense Fund, 2007).

55 James Forman Jr., “Children, Cops and Citizenship: Why Conservatives Should Oppose Racial Profiling,” in Invisible Punishment, ed. Mauer and Lind, 159.

56 Wideman, “Doing Time, Marking Race.” 57 See discussion of stigma in chapter 4.

58 See, e.g., Charles Ogletree and Austin Sarat, eds., From Lynch Mobs to the Killing State: Race and the Death Penalty in America (New York: New York University Press, 2006); and Joy James, The New Abolitionists: (Neo) Slave Narratives and Contemporary Prison Writings (New York: State University of New York Press, 2005).

59 See discussion of polling data in chapter 3.
60 Glenn C. Loury, The Anatomy of Racial Inequality (Cambridge, MA: Harvard University Press,

2003), 82.
61 Ibid., 82-83.

62 Craig Reinarman, “The Crack Attack: America’s Latest Drug Scare, 1986- 1992” in Images of Issues: Typifying Contemporary Social Problems (New York: Aldine De Gruyter, 1995), 162.

63 Marc Mauer, Race to Incarcerate, rev. ed. (New York: The New Press, 2006), 150.

64 Ibid., 151

65 Ibid.

66 See Musto, American Disease, 4, 7, 43-44, 219-20; and Doris Marie Provine, Unequal Under Law, 37-90

67 Eric Schlosser, “Reefer Madness,” Atlantic Monthly, Aug. 1994, 49. 68 Mauer, Race to Incarcerate, 149.

69 The most compelling version of this argument has been made by Randall Kennedy in Race, Crime and the Law (New York: Vintage Books, 1997).

70 Tracy Meares, “Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law,” 1 Buffalo Criminal Law Review 1 (1997): 137; Stephen Bennett and Alfred Tuchfarber, “The Social Structural Sources of Cleavage on Law and Order Policies,” American Journal of Political Science 19 (1975): 419-38; and Sandra Browning and Ligun Cao, “The Impact of Race on Criminal Justice Ideology,” Justice Quarterly 9 (Dec. 1992): 685-99.

71 Meares, “Charting Race and Class Differences,” 157.

72 Glenn Loury, “Listen to the Black Community,” Public Interest, Sept. 22, 1994, 35.

73 Meares, “Charting Race and Class Differences,” 160-61.

74 See William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Vintage Books, 1997), 22, citing Delbert Elliott study.

75 Glenn C. Loury, Race, Incarceration and American Values (Cambridge, MA: MIT Press, 2008), 81, commentary by Tommie Shelby.

76 See Troy Duster, “Pattern, Purpose, and Race in the Drug War: The Crisis of Credibility in Criminal Justice,” in Crack in America: Demon Drugs and Social Justice , ed. Craig Reinarman and Harry G. Levine (Berkeley: University of California Press, 1997).

77 Loïc Wacquant, “From Slavery to Mass Incarceration,” 53.

78 john a. powell, Executive Director of the Kirwan Institute for the Study of Race and Ethnicity, personal communication, Jan. 2007.

Chapter 6: The Fire This Time

1 Salim Muwakkil, “Jena and the Post-Civil Rights Fallacy,” In These Times, Oct. 16, 2007. 2 Democracy Now, “Rev. Al Sharpton: Jena Marks ‘Beginning of a 21st Century Rights

Movement,’” Sept. 21, 2007,
3 See Derrick Bell, “Serving Two Masters: Integration Ideals and Client Interests in School

Desegregation Litigation,” Yale Law Journal 85 (1976): 470.
4 Lani Guinier, Lift Every Voice (New York: Simon & Shuster, 1998), 220-21. 5 Ibid., 222.

6 See Michael Klarman, “The Racial Origins of Modern Criminal Procedure,” Michigan Law Review 99 (2000): 48, 86; Dan Carter, Scottsboro: A Tragedy of the American South, 2d ed. (Baton Rouge: Louisiana State University Press, 1979), 52- 53; and Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1969 (New York: Oxford University Press, 1994), 28-29.

7 Jo Ann Gibson Robinson, The Montgomery Bus Boycott and the Women Who Started It (Knoxville: University of Tennessee Press, 1987), 43.

8 Martin Luther King Jr. and Claybourne Carson, The Autobiography of Martin Luther King, Jr. (New York: Grand Central, 2001), 44.

9 See Abby Rapoport, “The Work That Remains: A Forty-Year Update of the Kerner Commission Report,” Economic Policy Institute, Nov. 19, 2008.

10 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006), 97.

11 Ibid., 90. 12 Ibid., 91.

13 In 1972, the total rate of incarceration (prison and jail) was approximately 160 per 100,000. Today, it is about 760 per 100,000. A reduction of 79 percent would be needed to get back to the 160 figure—itself a fairly high number when judged by international standards.

14 Marc Mauer, Race to Incarcerate (New York: The New Press, 1999), 11.
15 Christopher Sherman, “Cheney, Gonzales, Indicted Over Prisons,” Washington Times, Nov.

19, 2008.

16 U.S. Securities and Exchange Commission, Corrections Corporation of America, Form 10K for the fiscal year ended Dec. 31, 2005.

17 Silja J.A. Talvi, “On the Inside with the American Correctional Association,” in Prison Profiteers: Who Makes Money from Mass Incarceration, ed. Tara Herivel and Paul Wright (New York: The New Press, 2007).

18 Stephanie Chen, “Larger Inmate Population Is Boon to Private Prisons,” Wall Street Journal, Nov. 28, 2008.

19 See generally Herivel and Wright, Prison Profiteers. For an excellent discussion of how surplus capital, labor, and land helped to birth the prison industry in rural America, see Ruth Wilson Gilmore, Golden Gulag (Berkeley: University of California Press, 2007).

20 For more information on racial impact statements, see Marc Mauer, “Racial Impact

Statements as a Means of Reducing Unwarranted Sentencing Disparities,” Ohio State Journal of Criminal Law 5 (2007): 19.

21 Guinier, Lift Every Voice, 223.
22 Michael Omi and Howard Winant, Racial Formation in the United States from the 1960s to

the 1990s (New York: Routledge, 1994), 84-88.

23 Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 1991), 52.

24 Michael Klarman, “Brown, Racial Change, and the Civil Rights Movement,” Virginia Law Review 80 (1994): 7, 9.

25 See ibid., arguing that Brown was “merely a ripple” with only a “negligible effect” on the South and civil rights advocacy.

26 See David Garrow, “Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education,” Virginia Law Review 80 (1994): 151, persuasively making the case that Brown was a major inspiration to civil rights activists and provoked a fierce white backlash.

27 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006), 5, 187; William Spelman, “The Limited Importance of Prison Expansion,” in The Crime Drop in America, ed. Alfred Blumstein and Joel Wallman (New York: Cambridge University Press, 2000), 97-129; and Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (New York: Oxford University Press, 2007), 41-48.

28 See, e.g., Todd Clear, Imprisoning Communities, 3.

29 Jeffrey Reiman makes a similar argument in The Rich Get Richer and the Poor Get Prison, 8th ed. (New York: Allyn & Bacon, 2006), although he mostly ignores the distinctive role of race in structuring the criminal justice system.

30 See “Study Finds Whites Anxious About Race,” Bryant Park Project, National Public Radio, Dec. 3, 2007.

31 Fox Butterfield, “With Cash Tight, States Reassess Long Jail Terms,” New York Times, Nov. 10, 2003.

32 Marc Mauer, “State Sentencing Reforms: Is the ‘Get Tough’ Era Coming to a Close?” Federal Sentencing Reporter 15, no. 1 (Oct. 2002).

33 Abby Goodnough, “Relaxing Marijuana Law Has Some Nervous,” New York Times, Dec. 18, 2008, noting that eleven states have decriminalized first-time possession of marijuana.

34 For example, the ballot argument drafted by civil rights groups opposed to Proposition 54, a 2003 California ballot initiative that would have banned the collection of racial data by the state government, read: “We all want a colorblind society. But we won’t get there by banning information.”

35 Martin Luther King Jr., Strength to Love (Philadelphia: Fortress Press, 1963), 45-48. 36 Ibid., 31-32.

37 See Mary Frances Berry, “Vindicating Martin Luther King, Jr.: The Road to a Color-Blind Society,” Journal of Negro History 81, no. 1-4 (Winter-Autumn 1996): 137, 140.

38 Stephen Steinberg, Turning Back: The Retreat from Racial Justice in American Thought and Policy (Boston: Beacon Press, 1995), 167.

39 Fred L. Pincus, Reverse Discrimination: Dismantling the Myth (Boulder, CO: Lynne Rienner, 2003).

40 Rapoport, “The Work That Remains.”

41 For an analysis of the impact of incarceration on unemployment, poverty, and education, see Western, Punishment and Inequality in America, 83-131.

42 Jesse Rothstein and Albert Yoon, “Affirmative Action in Law School Admissions: What Do Racial Preferences Do?” National Bureau of Economic Research, Cambridge, MA, Aug. 2008,

43 Steinberg, Turning Back, 195-96.
44 Martin Luther King Jr., “A Testament of Hope,” in A Testament of Hope: The Essential

Writings and Speeches of Martin Luther King, Jr. (New York: HarperCollins, 1986), 321. 45 Ibid., 315.

46 Lani Guinier and Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (Cambridge, MA: Harvard University Press, 2002), 114.

47 Ibid.
48 See Sentencing Project, 2008 Presidential Platforms on Criminal Justice (Washington, DC,

Mar. 2008), 49 Drew Harwell, “Obama’s Drug Use Debated,” CBS News,, Feb. 12, 2008.

50 David Hunt, “Obama Fields Questions on Jacksonville Crime,” Florida Times-Union, Sept. 22, 2008.

51 United States Government Accountability Office, Report to the Chairman, Committee on the Judiciary, House of Representatives, Community Policing Grants: COPS Grants Were a Modest Contribution to Decline in Crime in 1990s, GAO-06-104, Oct. 2005,

52 John L. Worrall and Tomislav V. Kovandzic, “COPS Grants and Crime Revisited,” Criminology 45, no. 1 (Feb. 2007): 159-90.

53 Gary Fields, “White House Czar Calls for End of ‘War on Drugs,’” Wall Street Journal, May 24, 2009; see also Office of National Drug Control Policy, White House Drug Control Budget, FY2010 Funding Highlights (May 2009).

54 Guinier and Torres, Miner’s Canary, 118. 55 Ibid.

56 See Lani Guinier, “From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma,” Journal of American History 92 (June 2004): 103, citing C. Arnold Anderson, “Social Class Differentials in the Schooling of Youth Within the Regions and Community-Size Groups of the United States,” Social Forces 25 (May 1947): 440, 436; and C. Arnold Anderson, “Inequalities in Schooling in the South,” American Journal of Sociology 60 (May 1955): 549, 553, 557.

57 W.E.B. Du Bois, Black Reconstruction in America, 1860-1880 (New York: Free Press, 1935), 700.

58 Guinier, “Racial Liberalism,” 102. See also Beth Roy, Bitters in the Honey: Tales of Hope and Disappointment Across Divides of Race and Time (Fayetteville: University of Arkansas Press, 1999), 318; and Pete Daniel, Lost Revolutions: The South in the 1950s (Chapel Hill: University of North Carolina Press, 2000), 270.

59 See Derrick Bell, “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93 (1980): 518, 525; David J. Armor, Forced Justice: School Desegregation and the Law (New York: Oxford University Press, 1996), 174- 93, 206-7; and Robert J. Norrell, “Labor at the Ballot Box: Alabama Politics from the New Deal to the Dixiecrat Movement,” Journal of Southern History 57 (May 1991): 201, 227, 233, 234.

60 W.E.B. Du Bois, The Souls of Black Folk (1903; New York: Bantam, 1989).

61 For a more detailed exploration of Martin Luther King Jr.’s journey from civil rights to human rights, see Thomas F. Jackson, From Civil Rights to Human Rights: Martin Luther King, Jr. and the Struggle for Economic Justice (Philadelphia: University of Pennsylvania Press, 2006); and

Stewart Burns, To the Mountaintop: Martin Luther King Jr.’s Sacred Mission to Save America (New York: Harper One, 2005).

62 For background on the nature, structure, and history of human rights, see Cynthia Soohoo et al., eds., Bringing Human Rights Home, vol. 1 (New York: Praeger, 2007).

63 Stewart Burns, “America, You Must Be Born Again,” Sojourners 33, no. 1, (Jan. 2004): 14. 64 James Baldwin, The Fire Next Time (New York: Vintage, 1962, 1993), 5-10.