Mass Incarceration is NOT the New Jim Crow

by R.L. Stephens II on April 9, 2015

At this point, everybody and their mama has heard of the New Jim Crow. Steve Marioti, writing for Huffington Post, called it “a must read for every American.” John Legend quoted the book’s argument that more Black people are imprisoned today than were enslaved in 1850. It’s a rhetorically powerful text that has done a lot to problematize the prison system. Yet, the New Jim Crow has serious limitations that, if ignored, will severely limit our ability to effectively combat the War on Drugs and the prison system. James Forman Jr., in an article published in the New York University Law Review, offers a thorough critique of the New Jim Crow both as a text and an analogy.

My objection to the Jim Crow analogy is based on what it obscures. Proponents of the analogy focus on those aspects of mass incarceration that most resemble Jim Crow and minimize or ignore many important dissimilarities. As a result, the analogy generates an incomplete account of mass incarceration–one in which most prisoners are drug offenders, violent crime and its victims merit only passing mention, and white prisoners are largely invisible… the analogy directs our attention away from features of crime and punishment in America that require our attention if we are to understand mass incarceration in all of its dimensions. James Forman, Racial Critiques of Mass Incarceration: Beyond the New Jim Crow

At first reading, one might dismiss concerns over White prisoners and other more nuanced factors. The New Jim Crow’s racial narrative is certainly compelling, and obviously important, so it makes sense that we would give it additional weight. But, as Forman points out, “drug offenders constitute only a quarter of our nation’s prisoners, while violent offenders make up a much larger share: one-half.” Though the New Jim Crow is persuasive in its attention to the racist nature of drug prohibition, as Forman notes, “even if every single one of these drug offenders were released tomorrow, the United States would still have the world’s largest prison system.”

Black Complicity in the Rise of the Prison System

Yet, even when it comes to the drug war, the New Jim Crow analogy leaves much to be desired. Most recently popularized by Alexander’s The New Jim Crow, the widespread belief that the drug war is purely the invention of racist White politicians is now facing scrutiny. North Country Public Radio’s Why Did Black Leaders Support the Drug War for So Long? persuasively attacks texts that rely exclusively on white racism to explain the drug war’s rise, and is a scathing critique of Michelle Alexander’s New Jim Crow.

Paraphrasing professor and author Vanessa Barker, NCPR points out that “in the 1960s, residents of black neighborhoods felt constantly under threat from addicts and others associated with the drug trade, and their calls for increased safety measures resonated at community meetings, in the pages of black newspapers like ‘The Amsterdam News,’ and in churches.” It was in this terrible context, one in which many Black communities buckled under the sudden explosion of drug overdoses, murders, and social decay, that some Black people turned to stiff drug penalties as a way out of the madness.

Another segment titled Black America’s Surprising 40-Year History of Support for the Drug War provides detailed historical documentation of Black politicians’ and community leaders’ chilling level of involvement in the build-up of the drug war. While it’s clear that some Black people supported the drug war, the communities were not monolithic. NCPR’s discussion also highlights the intra-community political conflict leading up to New York’s 1973 Rockefeller Drug Laws.

“The debate leading up to passage of the laws in 1973 was fierce, exposing rifts within the community. Some black lawmakers dismissed Gov. Nelson Rockefeller’s black allies as “palace pets.” Others, like Brooklyn’s Vander L. Beatty, one of the top black legislators at the time, said the Rockefeller laws didn’t go far enough. He wanted the death penalty.” NCPR, Why Did Black Leaders Support the Drug War for So Long?

Ignoring the reality of Black complicity distorts the history of policies like the “Rockefeller Drug Laws” and obscures the role that Black political leaders played in their proliferation. As a result, organizations like the NAACP are able to now rail against laws they themselves pushed to pass, thus walking away scot-free from the multi-generational destruction that they helped unleash on the very communities they claim to serve. Among the victories listed on its website, the NAACP claims to have successfully campaigned for the repeal of New York’s infamous “Rockefeller Drug Laws”, a laudable achievement. What the NAACP doesn’t admit is that its New York branch pushed to get the Rockefeller Drug Laws passed in the first place.

According to Vanessa Barker’s 2009 book, The Politics of Imprisonment, the NAACP Citizens’ Mobilization Against Crime “supported tougher penalties, proposing ‘lengthening minimum prison terms for muggers, pushers, [and first] degree murderers.’” It must be noted that the NAACP was not alone in its efforts to push for tougher drug policy. Barker notes that The Amsterdam News, a prominent Black paper, called for “mandatory life sentences for the ‘non-addict drug pusher of hard drugs,’ because… this kind of drug dealing ‘is an act of cold calculated, premeditated, indiscriminate murder of our community.’”

Barker also points out that, despite many Black residents advocating for severe penalties on drug selling, some also pressed for mandatory prison sentences not to apply to drug users. Although the state would adopt the severe drug policies many in the community had demanded, Barker found that the government did not “alter their proposals to meet the African Americans’ opposition to mandatory penalties against drug addicts.” Clearly, New York’s Black communities were not in total control of drug policy’s direction, but they also weren’t totally passive victims.

Far from being a White-only conspiracy, the real story of the drug war shows us that non-White people have become active, though perhaps nonetheless still marginalized, architects of contemporary racial hierarchy. As Forman, Barker, and so many others have pointed out, this Black culpability makes mass incarceration and the drug war much different than racialized social systems of the past — particularly the Jim Crow system to which it is often compared.

How the Right-Wing Is Seizing the New Jim Crow Narrative

In fact, in today’s racism, even the gatekeepers of racial hierarchy are totally comfortable critiquing the racial disparities in imprisonment resulting from the drug war. One would think this observation would be cause for celebration, but not so fast. Right-wingers, ever the opportunists, are seizing the narrative popularized by The New Jim Crow, proving that merely recognizing the racially-disparate impact of drug prohibition is no guarantee of progressive policy. John McWhorter — a Black man — gave a speech to the Cato Institute titled How the War on Drugs is Destroying Black America.

Cato’s quarterly letter republished the speech in which McWhorter argues for what so many on the Left call for — an end to the drug war because of its adverse affect on Black people. However, his motivation couldn’t be more nefarious. For McWhorter and the Cato Institute, ending drug prohibition is a means of crushing the semi-independent economic opportunity that the illicit drug trade provides, and in turn, force even more of the Black poor into the low-wage sector of the economy.

The War on Drugs discourages young black men from seeking legal employment. Because the illegality of drugs keeps the prices high, there are high salaries to be made in selling them. This makes selling drugs a standing tempting alternative to seeking lower-paying legal employment. John McWhorter, How the War on Drugs is Destroying Black America

In McWhorter’s world, legalization would make drugs “available for purchase for prices below anything that could make a living for someone selling them on the street.” Perhaps looking for an even more offensive way to frame his views, McWhorter opines, “The War on Drugs gives ghetto males an ever-standing option for making a living without staying in school.” The reactionaries within Black communities back in the 1960’s at least had a crime wave to explain their short-sightedness, but McWhorter has no such excuse.

“I think all police are out to get you ‘cause…in my opinion, when they see a Black kid doing well for himself, I don’t think they like it,” says R.J., a seventeen year old drug dealer appearing on the A&E reality show Scared Straight. R.J. tells the camera, “Selling drugs, you don’t gotta clock in. You clock in at your own time. You know, you your own boss. You do what you want to do.” R.J. intuitively understands that it is a pusher’s ability to avoid a place in the low-wage labor force that is most threatening to McWhorter, Cato, and other neoliberals.

McWhorter’s not concerned about how these low-wage precarious jobs affect quality of life. He dismisses “the idea that the problem is an absence of job opportunities” because “immigrants, including black ones, regularly make do.” Ignoring for a moment the multitudes of immigrants that die and suffer at the margins, McWhorter’s making do, whatever that means, is hardly a way to live life. R.J. wants more, and frankly he deserves it, we all do. It shocks the conscience that the well-meaning drive to end the War on Drugs could actually make things worse for people like R.J. if left up to the Cato’s and McWhorter’s of the world.

McWhorter’s speech and the misdeeds of the Black political class demonstrate that we need a much more complex understanding of racism, the drug war, and the prison system if we are to overcome a racial hierarchy that is more flexible and insidious than ever before. The New Jim Crow is not enough to get us there.

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