RACIAL CRITIQUES OF MASS INCARCERATION:
BEYOND THE NEW JIM CROW
James Forman, Jr.*
Abstract. In the last decade, a number of criminal justice scholars have called the
American criminal justice system a new form of Jim Crow. This New Jim Crow School
effectively draws attention to the injustices created by a facially race-neutral system that
severely ostracizes offenders and stigmatizes young, poor black men as criminals. This
Article argues that despite these important contributions, the Jim Crow analogy leads to a
distorted view of mass incarceration. The analogy presents an incomplete account of
mass incarceration‘s historical origins, fails to adequately explain black attitudes toward
crime and punishment, ignores violent crimes while focusing almost exclusively on drug
crimes, obscures class distinctions within the African-American community, and
overlooks the effects of mass incarceration on other racial groups. Finally, the Jim Crow
analogy diminishes our collective memory of the old Jim Crow‘s particular harms.

*

Clinical Professor of Law, Yale Law School. I would like to thank the following people for their
comments: Michelle Alexander, the late Derrick Bell, Richard Banks, Rachel Barkow, David
Cole, Arthur Evenchik, David Garland, Marty Guggenheim, Kristin Henning, Randy Hertz,
Randall Kennedy, Greg Klass, Tracey Meares, Marc Mauer, Jean Koh Peters, Claire Priest,
Constancia Romilly, Adam Samaha, Giovanna Shay and the participants at faculty workshops at
Georgetown University Law Center, NYU Law School, and Yale Law School. I received
invaluable research assistance from Greger Calhan, Mike Knobler, Kristen Lang, Katherine
McGriff, Katie Mesner-Hage, Emma Simson, Sarah Tallman, and the staff of the Edward Bennett
Williams Library at Georgetown University Law Center. This Article builds on, James Forman,
Jr., Harm‟s Way: Understanding Race and Punishment, BOSTON REVIEW, Jan./Feb. 2011, at 55.
1

Electronic copy available at: http://ssrn.com/abstract=1966018

INTRODUCTION .............................................................................................................................................. 2
I.

A BRIEF HISTORY OF THE “NEW JIM CROW” ........................................................................... 7

II.

THE VALUE OF THE JIM CROW ANALOGY .............................................................................. 11

III. OBSCURING HISTORY: THE BIRTH OF MASS INCARCERATION .................................... 19
IV. OBSCURING BLACK SUPPORT FOR PUNITIVE CRIME POLICY ....................................... 22
V.

OBSCURING VIOLENCE ................................................................................................................... 33

VI. OBSCURING CLASS ........................................................................................................................... 43
VII. OBSCURING RACE ............................................................................................................................. 50
VIII. OBSCURING HISTORY: THE OLD JIM CROW .......................................................................... 54
CONCLUSION ................................................................................................................................................ 58

INTRODUCTION
In the five decades since black Americans won their civil rights, hundreds of thousands
have lost their liberty. Blacks now make up a larger portion of the prison population than they
did at the time of Brown v. Board of Education,1 and their lifetime risk of incarceration has
doubled.2 As the United States has become the world‘s largest jailer3 and its prison population

1

397 U.S. 483 (1954) (holding that state laws establishing segregation in public schools are
unconstitutional). Blacks constituted 30% of America‘s prisoners at the time of Brown v. Board
of Education in 1954, MARC MAUER, RACE TO INCARCERATE 121 (1999), while blacks
constituted 38% of all inmates in state or federal prisons in 2008, WILLIAM J. SABOL, HEATHER
C. WEST & MATTHEW COOPER, BUREAU OF JUSTICE STATISTICS BULLETIN: PRISONERS IN 2008,
at 2 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf.
2

See BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 25–26 (2006) (noting that
the odds that a black man born in the late 1960s will land in prison are twice as great as they were
for a black man born in the 1940s).
See ROY WALMSLEY, INT‘L CTR. FOR PRISON STUDIES, KING‘S COLL. LONDON WORLD PRISON
POPULATION LIST 1 (8th ed. 2009), available at
http://www.kcl.ac.uk/depsta/law/research/icps/downloads/wppl-8th_41.pdf (discussing how U.S.
prisoners constitute 2.29 million of the 9.8 million people held in penal institutions throughout
the world, making the United States the country with both the largest number of prisoners and the
highest per capita prison population).
3

2

Electronic copy available at: http://ssrn.com/abstract=1966018

has exploded,4 black men have been particularly affected. Today, black men are imprisoned at
6.5 times the rate of white men.5
While scholars have long analyzed the connection between race and America‘s criminal
justice system, in the last decade, an emerging group of scholars and advocates has made a
distinctive contribution to the debate. These scholars claim that our growing penal system, with
its black tinge, constitutes nothing less than a new form of Jim Crow. This Article examines the
New Jim Crow analogy. Part I tracks the analogy‘s history, documenting its increasing
prominence in the scholarly literature on race and crime. Part II explores the analogy‘s
usefulness, pointing out that it is extraordinarily compelling in some respects. The Jim Crow
analogy effectively draws attention to the plight of black men whose life chances have been
permanently diminished by the stigma and loss of citizenship rights they suffer as convicted
offenders. It highlights how ostensibly race-neutral criminal justice policies unfairly target black
communities. In these ways, the analogy shines a light on injustices that are too often hidden
from view.
But, as I argue in Parts III through VIII, the Jim Crow analogy also obscures much that
matters. Part III shows how the Jim Crow analogy oversimplifies the origins of mass

4

Since 1970, the number of Americans behind bars has increased 600%. In 1970, there were 326,000
Americans behind bars: 196,000 in state and federal prisons and another 130,000 in local jails.
MARGARET WERNER CAHALAN, BUREAU OF JUSTICE STATISTICS, U.S. DEP‘T OF JUSTICE, NCJ102529, HISTORICAL CORRECTIONS STATISTICS IN THE UNITED STATES, 1850–1984, at 35 tbl.3-7, 76
tbl.4-1 (1986), available at http://www.ncjrs.gov/pdffiles1/pr/102529.pdf. As of 2009, there were 2.3
million Americans in jails and prisons. Key Facts at a Glance: Correctional Populations, BUREAU OF
JUSTICE STATISTICS, http://bjs.ojp.usdoj.gov/content/glance/tables/corr2tab.cfm (last revised Oct. 2,
2011).
5

See SABOL ET AL., supra note 1, at 2 tbl.2 (showing that 3161 non-Hispanic black men per
100,000 were imprisoned in 2008, versus 487 non-Hispanic white men per 100,000).
3

Electronic copy available at: http://ssrn.com/abstract=1966018

incarceration6 by highlighting the role of politicians seeking to exploit racial fears while
minimizing other social factors. Part IV demonstrates that the analogy has too little to say about
black attitudes towards crime and punishment, masking the nature and extent of black support
for punitive crime policy. Part V explains how the analogy‘s myopic focus on the War on Drugs
diverts us from discussing violent crime—a troubling oversight given the toll that violence takes
on low-income black communities and the fact that violent offenders make up a plurality of the
prison population. Part VI argues that the Jim Crow analogy obscures the fact that mass
incarceration‘s impact has been almost exclusively concentrated among the most disadvantaged
African-Americans. Part VII argues that the analogy draws our attention away from the harms
that mass incarceration inflicts on other racial groups, including whites and Hispanics. Part VIII
argues that the analogy diminishes our understanding of the particular harms associated with the
old Jim Crow.
Before I turn to the argument itself, I would like to offer a frame through which I
hope readers will receive my argument. I have long criticized our nation‘s overly punitive
criminal justice system. I was a public defender for six years and co-founded a school that
educates young people who have been involved with the juvenile justice system.7 As an
academic, I have written extensively about the toll that mass incarceration has taken on both

The terms ―mass incarceration‖ and ―mass imprisonment‖ are used synonymously in the
criminal justice literature. David Garland is credited with coining ―mass imprisonment‖;
according to Garland, mass imprisonment‘s two defining features are: 1) ―sheer numbers‖ and 2)
―the systematic imprisonment of whole groups of the population.‖ David Garland, Introduction:
The Meaning of Mass Imprisonment, in MASS IMPRISONMENT: SOCIAL CAUSES AND
CONSEQUENCES 1, 1–2 (David Garland ed., 2001).
6

7

See David Domenici & James Forman, Jr., What It Takes To Transform a School Inside a
Juvenile Justice Facility: The Story of the Maya Angelou Academy, in JUSTICE FOR KIDS:
KEEPING KIDS OUT OF THE JUVENILE JUSTICE SYSTEM 283 (Nancy E. Dowd ed., 2011)
(discussing an effort to improve a school within a juvenile justice facility).
4

young people and the African-American community.8 This history prompted one friend
familiar with this project to ask the following questions: 1) ―Don‘t you agree with much of
what the New Jim Crow writers have to say?‖ and 2) ―Why are you critiquing a point of view
that is so closely aligned with your own?‖ I hope to clarify this Article‘s broader goals by
providing brief answers to those questions here.

Don‟t you agree with much of what the New Jim Crow writers have to say? In a
word: yes. The New Jim Crow writers seek to draw attention to a profound social crisis, and
I applaud them for that. Low-income and undereducated African-Americans are currently
incarcerated at unprecedented levels. The damage is felt not just by those who are locked up,
but by their children, families, neighbors, and the nation as a whole. In Part II, I stress some
of the signal contributions of the New Jim Crow writers. I especially commend their
description of how our criminal justice system makes permanent outcasts of convicted
criminals and stigmatizes other low-income blacks as threats to public safety. I also

8

See generally, James Forman, Jr., Children, Cops, and Citizenship: Why Conservatives
Should Oppose Racial Profiling, in INVISIBLE PUNISHMENT: THE COLLATERAL
CONSEQUENCES OF MASS IMPRISONMENT (Marc Mauer & Meda Chesney-Lind eds.,
2002) (arguing that aggressive criminal justice policies, including racial profiling, have
affected communities of color disproportionately); James Forman, Jr., Community
Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1 (2004) (arguing that
community policing efforts are undercut because the efforts leave youth out of the
model); James Forman, Jr., Exporting Harshness: How the War on Crime Helped Make
the War on Terror Possible, 33 N.Y.U. REV. L. & SOC. CHANGE 331 (2009) (arguing that
the expansiveness and harshness of mass incarceration have contributed to even more
drastic war on terror policies); James Forman, Jr., Why Care About Mass Incarceration?,
108 MICH. L. REV. 993, 1006–09 (2010) (reviewing PAUL BUTLER, LET‘S GET FREE: A
HIP-HOP THEORY OF JUSTICE (2009)) (discussing the adverse effects of prison conditions
on both inmates and the community at-large).

5

repeatedly single out Michelle Alexander‘s contribution to the literature because her
elaboration of the argument is the most comprehensive and persuasive.

Why are you critiquing a point of view that is so closely aligned with your own?
Although the New Jim Crow writers and I agree about more than we disagree, the
disagreements matter—for two reasons. First, they matter in the traditional academic quest
to seek the truth. As an academic, I endeavor to accurately understand the causes and
consequences of mass incarceration. I believe the Jim Crow analogy leads us away from
some important truths, and in this Article, I seek to explain why and how the analogy
misleads. My differences with the New Jim Crow writers matter for a second reason—one
that should appeal to policymakers, activists, and all those whose goal is to make our
criminal justice system less harsh. Reformers cannot effectively counter mass incarceration
if we misunderstand, or only partially understand, the phenomenon. This is a theme that runs
throughout the Article, but for now I offer one example. I argue in Part V that the Jim Crow
analogy encourages us to view mass incarceration as exclusively (or mostly) a result of the
War on Drugs. But drug offenders constitute only a quarter of our nation‘s prisoners, while
violent offenders make up a much larger share: one-half.9 Accordingly, an effective response
to mass incarceration will require directly confronting the issue of violent crime and
developing policy responses that can compete with the punitive approach that currently
dominates American criminal policy. This idea—that the Jim Crow analogy leads to a
distorted view of mass incarceration and therefore hampers our ability to effectively
challenge it—is the central theme to which I return throughout the Article.

9

SABOL ET. AL, infra note 103, at 37 app. tbl.15.
6

I.

A BRIEF HISTORY OF THE “NEW JIM CROW”

Though I have not determined who first drew the analogy between today‘s criminal
justice system and Jim Crow, a number of writers began using the term to describe contemporary
practices in the late 1990s. In 1999, for example, William Buckman and John Lamberth declared
that:
Jim Crow is alive on America‘s highways, trains and in its airports. Minorities
are suspect when they appear in public, especially when they exercise the most
basic and fundamental freedom of travel. In an uncanny likeness to the
supposedly dead Jim Crow of old, law enforcement finds cause for suspicion in
the mere fact of certain minorities in transit.10
Buckman and Lamberth argued that racial profiling was a byproduct of the nation‘s strategy to
combat drugs,11 and criticisms of the War on Drugs have remained central to the Jim Crow
analogy. That same year, in a widely-quoted speech to the American Civil Liberties Union
(ACLU), Executive Director Ira Glasser argued that ―drug prohibition has become a replacement
system for segregation. It has become a system of separating out, subjugating, imprisoning, and
destroying substantial portions of a population based on skin color.‖12 Graham Boyd, who led
the ACLU‘s Drug Policy Litigation Unit, made a similar claim in 2002. According to Boyd,
The war on drugs subjects America to much of the same harm, with much of the
same economic and ideological underpinnings, as slavery itself. Just as Jim Crow
responded to emancipation by rolling back many of the newly gained rights of
African-Americans, the drug war is again replicating the institutions and
repressions of the plantation . . . .13
10

William H. Buckman & John Lamberth, Challenging Racial Profiles: Attacking Jim Crow on
the Interstate, THE CHAMPION, Sept./Oct. 1999, at 14.
See id. (―Around the nation Jim Crow exists as a by-product of a ‗War on Drugs‘ spun out of
control.‖).
11

12

Ira Glasser, American Drug Laws: The New Jim Crow, The 1999 Edward C. Sobota Lecture,
63 ALB. L. REV. 703, 723 (2000).
13

Graham Boyd, Collateral Damage in the War on Drugs, 47 VILL. L. REV. 839, 845 (2002).
7

At the same time that ACLU lawyers were promoting the Jim Crow analogy in the policy
and advocacy world, the idea began to gain adherents in the scholarly community. In 2001,
Temple Law School hosted a symposium titled U.S. Drug Laws: The New Jim Crow?, which
featured a series of lectures and articles supporting the analogy.14 During this same period,
Berkeley sociologist Loïc Wacquant developed a theoretical framework for the idea.
Wacquant‘s version of the argument has an especially high profile in the academic literature,
figuring prominently in two of the most influential works devoted to mass incarceration.15
Whereas Glasser, Boyd, and the Temple symposium analogized Jim Crow to the War on
Drugs in particular, Wacquant compares Jim Crow to the broader phenomenon of mass
incarceration. In Wacquant‘s view, four parallel institutions have controlled and segregated
America‘s disfavored and feared black population. First there was slavery, then Jim Crow, the
urban ghetto, and—finally—mass incarceration. As one form of racial subjugation is
dismantled, says Wacquant, another takes its place. Each of these institutions subordinates and
confines blacks ―in physical, social, and symbolic space.‖16 Thus, Wacquant argues that mass
incarceration is just another version of an institution that constructs race and racial divisions in

14

See generally Symposium, U.S. Drug Laws: The New Jim Crow?, 10 TEMP. POL. & CIV. RTS.
L. REV. 303 (2001) (consisting of several lectures which, among other things, characterize the
War on Drugs as a racialized criminal justice policy similar to Jim Crow).
15

Wacquant first outlined this argument in Mass Imprisonment, the edited collection in which
David Garland coined that term. See generally Loïc Wacquant, Deadly Symbiosis: When Ghetto
and Prison Meet and Mesh, in MASS IMPRISONMENT, supra note 6, at 82 (highlighting racial
effects of the prison system in America); see also Garland, supra note 6, at 1–2 (coining the term
―mass imprisonment‖). Wacquant has further developed the argument. See Loïc Wacquant, Class,
Race & Hyperincarceration in Revanchist America, DAEDALUS, Summer 2010, at 74, 78
(describing unique and problematic features of what he labels ―hyperincarceration‖).
16

Wacquant, Deadly Symbiosis, supra note 15, at 83.
8

such a way as to reproduce inequalities in group power and perpetuate the stigmatizing image of
blacks as criminals.17
Wacquant argues that as the prison system has shifted its focus away from
rehabilitation over the past thirty years, it has become more like the ghetto, which functions
as a means of ―social and cultural purging‖ through containment of a stigmatized
population.18 From this, Wacquant concludes that mass incarceration reflects America‘s
intent to punish and confine poor blacks.19 In this way, mass incarceration operates in a
fashion similar to slavery, Jim Crow, and the ghetto. Wacquant is careful to note that mass
incarceration is not entirely parallel to the previous forms of subordination. Most
importantly, mass incarceration does not extract labor from blacks in the way that its
predecessors did.20
Since Glasser, Boyd, and Wacquant first made the analogy, many others have
followed suit21—most prominently, Michelle Alexander in her recent book The New Jim

17

See id. at 103–04 (arguing that the ghetto and prison revive and solidify stigmatizing racial
beliefs).
18

Id. at 98; see also id. at 95 (drawing parallels between effects of mass incarceration and the
creation of the ghetto).
See id. at 107 (highlighting continued distinctions between ―praiseworthy ‗working families‘‖
and ―the despicable ‗underclass‘ of criminals, loafers, and leeches‖ that are ―increasingly being
drawn . . . by the prison‖).
19

See Loïc Wacquant, The New “Peculiar Institution”: On the Prison as Surrogate Ghetto, 4
THEORETICAL CRIMINOLOGY 377, 385 (2000) (stating that ―unlike slavery, Jim Crow and the
ghetto of the mid-century, [mass incarceration] does not carry out a positive economic mission of
recruitment and disciplining of the work force‖).
20

E.g., Kim Shayo Buchanan, Impunity: Sexual Abuse in Women‟s Prisons, 42 HARV. C.R.-C.L.
L. REV. 45, 57–58, 87 (2007) (situating the current legal regime which grossly limits access to
relief for prisoners who are victims of sexual abuse in prisons as ―part of a historical and
contemporary pattern of legal enforcement‖ of racial hierarchy which includes slavery and Jim
Crow); Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United
States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious
21

9

Crow: Mass Incarceration in the Age of Colorblindness. Alexander reports that she initially
resisted the analogy when she encountered it as a young ACLU lawyer in the Bay Area.
Upon noticing a sign on a telephone pole proclaiming that ―THE DRUG WAR IS THE NEW
JIM CROW,‖ she remembers thinking: ―Yeah, the criminal justice system is racist in many
ways, but it really doesn‘t help to make such an absurd comparison. People will just think
you‘re crazy.‖22 Over the years, however, she has come to believe that the flyer was right.

Lawyering, 98 GEO. L.J. 1005, 1076 (2010) (―Unfortunately, we currently see a criminal justice
system that, in operation today, has disparate impacts on minority communities, much as in the
days of Jim Crow, with that system in effect sanctioned by the U.S. Supreme Court.‖); Joseph E.
Kennedy, The Jena Six, Mass Incarceration, and the Remoralization of Civil Rights, 44 HARV.
C.R-C.L. L. REV. 477, 505–06 (2009) (―Mass incarceration profoundly harms the most
vulnerable part of the African American population by disintegrating legions of African
American men from family and economic life. . . . This is an intense form of social exclusion that
rivals Jim Crow and other, earlier forms of racial subordination long since recognized as unjust
and unwise.‖); Alex Lichtenstein, The Private and the Public in Penal History: A Commentary on
Zimring and Tonry, in MASS IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES 171, 173–
74, 176 (arguing that the current regime of mass incarceration is ―intimately bound up with larger
patterns of historic and contemporary racial inequality, discrimination, and repression,‖ including
Jim Crow); Audrey G. McFarlane, Operatively White?: Exploring the Significance of Race and
Class Through the Paradox of Black Middle-Classness, 72 LAW & CONTEMP. PROBS. 163, 191
(2009) (―The oppression of slavery and Jim Crow is not gone; instead, it has been disaggregated
and reassembled into more efficient components of oppression.‖); Dorothy E. Roberts,
Constructing a Criminal Justice System Free of Racial Bias: An Abolitionist Framework, 39
COLUM. HUM. RTS. L. REV. 261, 263 (2007) (arguing for an ―abolish[ment] [of the] criminal
justice institutions with direct lineage to slavery and Jim Crow that are key components of the
present regime of racial repression‖); Christopher J. Tyson, At the Intersection of Race and
History: The Unique Relationship Between the Davis Intent Requirement and the Crack Laws, 50
HOW. L.J. 345, 348–49 (2007) (―[R]acialized mass imprisonment . . . in the post-segregation era,
has replaced Jim Crow as the literal and symbolic tool of Black subjugation.‖); Andrew D. Black,
Note, “The War on People”: Reframing “The War on Drugs” by Addressing Racism Within
American Drug Policy Through Restorative Justice and Community Collaboration, 46 U.
LOUISVILLE L. REV. 177, 178 (2007) (―[T]he true insidiousness of the ‗War on Drugs‘ is its role
as an effective weapon destroying the infrastructure of African-American communities through
the steady reimplementation of Jim Crow.‖); Daniel S. Goldman, Note, The Modern-Day Literacy
Test?: Felon Disenfranchisement and Race Discrimination, 57 STAN. L. REV. 611, 612 (2004)
(―The incarceration boom of the past three decades, combined with the corresponding collateral
consequences stemming from criminal convictions, has ingrained into modern society a minority
underclass resembling that of the stratified societal structure present during the Jim Crow era.‖)
22

MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 3 (2010) (internal quotation marks omitted).
10

―Quite belatedly,‖ she says, ―I came to see that mass incarceration in the United States had,
in fact, emerged as a stunningly comprehensive and well-disguised system of racialized
social control that functions in a manner strikingly similar to Jim Crow.‖23

II. THE VALUE OF THE JIM CROW ANALOGY

The Jim Crow analogy has much to recommend it, especially as applied to the
predicament of convicted offenders. Building on the work of legal scholars who have examined
the collateral consequences of criminal convictions,24 the New Jim Crow writers document how
casually, almost carelessly, our society ostracizes offenders. Our mantra is ―Do the Crime, Do
the Time.‖ But, increasingly, ―the time‖ is endless; felons are permanently locked out of civil
society. As Wacquant puts it: ―Just as bondage effected the ‗social death‘ of imported African
captives and their descendants on American soil, mass incarceration also induces the civic death
of those it ensnares by extruding them from the social compact.‖25
Even those most familiar with our criminal justice system may fail to recognize how
comprehensively we banish those who are convicted of crimes. I confess that I did not see the
scope of the problem myself, even during my six years as a public defender. During that time, I
counseled many clients about the consequences of pleading guilty, and two questions dominated
23

Id. at 4.

24

See generally JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON
DISENFRANCHISEMENT AND AMERICAN DEMOCRACY (2006) (discussing the current
disenfranchisement laws in the United States); ANTHONY C. THOMPSON, RELEASING PRISONERS,
REDEEMING COMMUNITIES: REENTRY, RACE, AND POLITICS (2008) (examining the effects of
race, power and politics on the reintegration of recently released prisoners); see also James B.
Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 U. ST. THOMAS L.J.
387, 389 (2006) (discussing the existence of state laws which deny convicted criminals certain
government benefits and services).
25

Loïc Wacquant, Deadly Symbiosis, supra note 16, at 82, 106 (emphasis omitted) (citation
omitted).
11

our conversations. First, what were the chances of winning at trial? Second, what was the likely
sentence after a guilty plea compared to the likely sentence if we lost at trial? But the Jim Crow
analogy has helped me realize how much I overlooked in advising my clients.
Consider all of the consequences of a conviction. Depending on the state and the offense,
a person convicted of a crime today might lose his right to vote26 and to serve on a jury.27 He

26

All states and the District of Columbia, except for Maine and Vermont, place some restrictions
on felon voting rights. See VT. STAT. ANN. tit. 17, § 2121 (2002) (making no exception of vote
eligibility for convicted felons); ME. REV. STAT. tit. 21, § 247 (1973) (repealed 1975); THE
SENTENCING PROJECT, FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES (2011)
[hereinafter FELONY DISENFRANCHISEMENT], available at
http://sentencingproject.org/doc/publications/fd_bs_fdlawsinusMar11.pdf (describing felon
disenfranchisement laws state-by-state). Thirteen states and the District of Columbia prohibit
convicted felons from voting only during incarceration. Id. Thirty-five states extend this
restriction to probation, parole or both. Id. In some states disenfranchisement extends beyond
completion of the sentence and, under certain circumstances, may last forever. See id. (stating that
four states deny the right to vote permanently while eight others require a waiting period after
sentence completion); see also Thomas G. Varnum, Let‟s Not Jump to Conclusions: Approaching
Felon Disenfranchisement Challenges Under the Voting Rights Act, 14 MICH. J. RACE & L. 109,
116 (2008) (describing four categories of felon disenfranchisement laws). In other states, voting
rights are restored after a waiting period following completion of the sentence, or upon the
granting of a pardon. See Jason Schall, The Consistency of Felon Disenfranchisement with
Citizenship Theory, 22 HARV. BLACKLETTER L.J. 53, 64–65 (2006) (analyzing state systems of
felon disenfranchisement).
27

Persons convicted of felonies punishable by at least one year in prison and those with pending
felony charges against them are excluded from federal grand and petit jury service, unless the
person‘s civil rights have been restored. 28 U.S.C. § 1865(b)(5) (2006); see also U.S. DEP‘T OF
JUSTICE, FEDERAL STATUTES IMPOSING COLLATERAL CONSEQUENCES 13 (2006), available at
http://www.justice.gov/pardon/collateral_consequences.pdf (explaining that the restoration of
civil rights for voting purposes has been interpreted to require an affirmative action by the state).
States vary in the duration of the exclusion of convicted felons from state jury service, ranging
from states with no statutory exclusions such as Maine, see ME. REV. STAT. ANN. tit. 14, § 1211
(2003) (making no exception for convicted felons), to the majority of states, which exclude felons
for life from jury service ―unless their rights have been restored pursuant to discretionary
clemency rules.‖ Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 AM. U. L. REV.
65, 157 (2003); see, e.g., HAW. REV. STAT. § 612-4(b)(2) (Supp. 2009) (excluding felons from
jury service unless they are pardoned). Other states fall between these two extremes, excluding
convicted felons from jury duty during incarceration, probation and parole, or some other
intermediary duration. See, e.g., R.I. GEN. LAWS ANN. § 9-9-1.1(c) (1997) (excluding convicted
felons from jury service until completion of sentence, parole, and probation). In addition, some
state statutory regimes also disqualify jurors for misdemeanors or other non-felony offenses, such
as offenses of moral turpitude. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 35.16 (West 2006)
(excluding those convicted of misdemeanor theft from serving on juries); see also James M.
Binnall, Convicts in Court: Felonious Lawyers Make a Case for Including Convicted Felons in
12

might become ineligible for health and welfare benefits,28 food stamps,29 public housing,30

the Jury Pool, 73 ALB. L. REV. 1379, 1436–40 (2010) (providing a state-by-state chart listing the
duration of the jury exclusion for convicted felons).
28

Section 115 of the 1996 welfare law, the Personal Responsibility and Work Opportunity
Reconciliation Act, prohibits anyone convicted of a drug-related felony from receiving
Temporary Assistance for Needy Families (TANF), unless states opt out of or modify the ban. 21
U.S.C. § 862a (2006). Currently, only eleven states permanently deny TANF on the basis of this
ban, while thirteen states have eliminated it entirely. Legal Action Ctr., Opting Out of Federal
Ban on Food Stamps and TANF: Summary of State Laws, LAC.ORG,
http://www.lac.org/toolkits/TANF/TANF.htm (last updated Jan. 2011). The remaining states and
the District of Columbia have limited the ban in some way to enable those with drug felony
convictions to be eligible for TANF if they meet certain conditions. Id. In the majority of these
states, drug felons become eligible again if they have completed their sentences or are complying
with the terms of their judgment, parole, or probation, e.g., CONN. GEN. STAT. ANN. § 17b-112d
(West 2006); if they participate in alcohol or drug treatment, e.g., KY. REV. STAT. ANN. §
205.2005 (LexisNexis 2007); or if they submit to random drug testing, e.g., MINN. STAT. ANN. §
256J.26 (West 2007). In a few states, the ban applies only to individuals convicted of distribution
or manufacture but not possession. E.g., ARK. CODE ANN. § 20-76-409 (2001). Two states impose
the ban for a limited period of time after release from prison, such as Louisiana‘s one-year
ineligibility period. E.g., LA. REV. STAT. ANN. § 46:233.2 (1999).
29

Eligibility for federally funded food stamps is also covered by the Personal Responsibility and
Work Opportunity Reconciliation Act. See 21 U.S.C. § 862a (denying those convicted of a drugrelated felony benefits under the food stamp program unless states opt out of or modify the ban).
Ten states permanently deny food stamps on the basis of the federal ban, while fifteen states and
the District of Columbia have eliminated it entirely. Legal Action Ctr., supra note 31. Twentyfive states have modified the ban to enable drug felons to become eligible if they meet certain
conditions, the categories of which are nearly identical to those imposed for TANF qualification.
See id. (tabling state policies on banning food stamps to individuals convicted of drug felonies).
30

In determining eligibility for public housing, federal law requires local housing agencies to bar
permanently two categories of convicts: 1) individuals who are subject to a lifetime sex offender
registration requirement, 42 U.S.C. § 13663 (2006); and 2) individuals convicted of
manufacturing or producing methamphetamine on public housing premises, 42 U.S.C. § 1437n
(2006). Additionally, the Department of Housing and Urban Development (HUD) requires Public
Housing Authorities (PHAs) to establish standards that prohibit admission to public housing if
any household member is using or has recently used illegal drugs, or if the PHA ―has reasonable
cause to believe‖ that an individual‘s illegal behavior will threaten the health and safety of the
premises. 24 C.F.R. § 960.204 (2010). A household will also be barred from public housing for at
least three years if one of its members was evicted from federally assisted housing for drugrelated criminal activity, unless the PHA determines that the offender successfully completed a
supervised drug rehabilitation program approved by the PHA. Id. Under HUD‘s ―One-Strike‖
policy, PHAs are required to include a provision in their leases stating that if any member of a
household, or a guest of that household, engages in ―any criminal activity that threatens the
health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related
criminal activity,‖ the entire household may be evicted, regardless of whether the activity takes
place on or off the premises. 42 U.S.C. § 1437d(l)(6) (2006); see also Dep‘t of Hous. & Urban
13

student loans,31 and certain types of employment.32

Dev. v. Rucker, 535 U.S. 125, 130 (2002) (holding that 42 U.S.C. § 1437d(l)(6) grants public
housing authorities the discretion to evict tenants for ―drug-related activity of household members
and guests whether or not the tenant knew, or should have known, about the activity‖). PHAs
retain a great deal of discretion and can make individualized determinations about applicants;
only three states flatly ban applicants with a wide range of criminal records. In practice, however,
many PHAs do not conduct individualized assessments and adhere, in effect, to ―zero tolerance‖
policies. Corinne A. Carey, No Second Chance: People with Criminal Records Denied Access to
Public Housing, 36 U. TOL. L. REV. 545, 566 (2005).
31

The Higher Education Act (HEA) of 1965, Pub. L. No. 89-329, 79 Stat. 1219, which provided
for financial assistance to students in postsecondary and higher education, contained no
provisions barring aid to students with criminal records. In 1998, Congress amended the HEA
with the Drug Free Student Loans Act, which made students convicted of a drug offense
ineligible for any grant, loan, or work assistance for a specified period of time unless they
completed a drug rehabilitation program. Higher Education Amendments of 1998, Pub. L. No.
105-244, sec. 484, § 483, 112 Stat. 1581, 1735–36. A report by the Government Accountability
Office (GAO) estimated that 23,000 students were denied Pell Grants because of their drug
convictions during the 2001–2002 academic year alone. U.S. GOV‘T ACCOUNTABILITY OFFICE,
GAO-05-238, DRUG OFFENDERS: VARIOUS FACTORS MAY LIMIT THE IMPACTS OF FEDERAL
LAWS THAT PROVIDE FOR DENIAL OF SELECTED BENEFITS 57 (2005). In 2005, Congress
amended the HEA again to ease the 1998 restrictions. Under the revised law, students face
ineligibility only if they are convicted of a drug-related offense while receiving federal aid. 20
U.S.C. § 1091(r) (2006). Financial aid is suspended on the date of conviction for varying lengths
of time, depending on the type of offense and whether or not it is a repeat offense. Id. Eligibility
may also be restored if the student completes a drug rehabilitation program. Id. This federal legal
barrier cannot be altered by the states. No other class of offense, including violent offenses, sex
offenses, or repeat offenses, results in the automatic denial of federal financial aid eligibility.
Legal Action Ctr., After Prison: Roadblocks to Reentry, LAC.ORG, http://lac.org/roadblocks-toreentry/main.php?view= law&subaction=7 (last visited Oct. 4, 2011). In September 2009, the
U.S. House of Representatives passed a bill that would have limited HEA‘s drug conviction
penalty to those convicted of drug sales, not drug possession, but it never reached a Senate vote.
H.R. 3221, 111th Cong. (2009).
32

Modern occupational licensing laws regulate professional as well as unskilled and semi-skilled
occupations. As of 2000, roughly twenty percent of the national workforce was licensed. See
MORRIS M. KLEINER, LICENSING OCCUPATIONS: ENSURING QUALITY OR RESTRICTING
COMPETITION? 105 (2006) (explaining that this statistic ranges from state-to-state with California
having 30.4% of its workforce licensed and Mississippi only 6.1%). The statutory requirements
for obtaining occupational licenses vary among the states and according to the type of license. In
some instances, a criminal conviction will bar a license. For example, a person cannot become a
real estate appraiser in Alaska if he has been convicted of a crime ―involving moral turpitude,‖
ALASKA STAT. § 08.87.110 (1995), or obtain a liquor license in South Dakota if he has ever
committed a felony, S.D. CODIFIED LAWS § 35-2-6.2 (2004). Some state statutes identify
occupations in which a licensing board can refuse an application solely on the basis of a criminal
record. In Ohio, a license to become a barber may be denied based on a felony conviction, OHIO
REV. CODE ANN. § 4709.13 (West 2004) and in New Jersey, any ―criminal history‖ (presumably
including arrests without conviction) may disqualify an individual from becoming a health care
14

These restrictions exact a terrible toll, especially given that most offenders already come
from backgrounds of tremendous disadvantage. Yet we heap additional disabilities upon
existing disadvantage. By barring the felon from public housing, we make it more likely that he
will become homeless and lose custody of his children. Once he is homeless, he is less likely to
find a job. Without a job he is, in turn, less likely to find housing on the private market—his
only remaining option. Without student loans, he cannot go back to school to try to create a
better life for himself and his family. Like a black person living under the old Jim Crow, a
convicted criminal today becomes a member of a stigmatized caste, condemned to a lifetime of
second-class citizenship.33

professional, N.J. STAT. ANN. § 45:1-29 (West Supp. 2011). Other states require a nexus between
crime and occupation for the denial of occupational licenses. In California, for example, a
criminal record can affect one‘s application for a professional license only if ―the crime or act is
substantially related to the qualifications, functions or duties of the business or profession for
which application is made.‖ CAL. BUS. & PROF. CODE § 480 (West Supp. 2011). In Texas,
licensing authorities must also consider factors such as the nature and seriousness of the crime.
TEX. OCC. CODE ANN. § 53.022 (West 2004). Another hurdle faced by individuals with criminal
records is the ―good moral character‖ requirement included in most licensing laws. Many states
have failed to define what constitutes ―good moral character‖; others have applied a definition
that can be broadly construed to exclude anyone with a criminal record. See Bruce E. May, The
Character Component of Occupational Licensing Laws: A Continuing Barrier to the Ex-Felon's
Employment Opportunities, 71 N.D. L. REV. 187, 194–95 (1995) (arguing that the ―good moral
character‖ requirement poses the greatest obstacle to obtaining an license); see also S. David
Mitchell, Undermining Individual and Collective Citizenship: The Impact of Exclusion Laws on
the African-American Community, 34 FORDHAM URB. L.J. 833, 850–52, 879 app. VII, 882 app.
VIII, 885 app. IX (summarizing state licensing laws).
See ALEXANDER, supra note 22, at 139–40 (describing the possible ―collateral consequences‖
that await ex-offenders (internal quotations omitted)). It is important to note that the recent trend
in many states and the federal government is toward reducing the severity of the restrictions
placed on those with criminal convictions. For example, the Sentencing Project reports that
―since 1997, 23 states have amended felony disenfranchisement policies in an effort to reduce
their restrictiveness and expand voter eligibility.‖ NICOLE D. PORTER, THE SENTENCING
PROJECT, EXPANDING THE VOTE: STATE FELONY DISENFRANCHISEMENT REFORM, 1997-2010, at
1 (Oct. 2010), available at
www.sentencingproject.org/doc/.../vr_ExpandingtheVoteFinalAddendum.pdf. Also, the federal
ban on student loans for those convicted of drug offenses has been substantially narrowed; it now
limits only those who are convicted of a drug offense while already receiving federal aid. See
supra note 31 (describing the amendments to the HEA). In addition, since the Personal
Responsibility and Work Opportunity Reconciliation Act was passed in 1996, thirty-nine states
33

15

While the Jim Crow analogy is most compelling as applied to those convicted of crimes,
it applies more broadly as well. Just as Jim Crow defined blacks as inferior, mass imprisonment
encourages the larger society to see a subset of the black population—young black men in lowincome communities—as potential threats. This stigma increases their social and economic
marginalization and encourages the routine violation of their rights.34 Intense police surveillance
of black youths becomes accepted practice.35 Misbehavior in school is reported to the police and
leads to juvenile court.36 Employers are reluctant to hire them.37 Thus, even young low-income

and the District of Columbia have opted out of or modified the federal ban on TANF for
individuals convicted of drug-related felonies, and forty states and the District of Columbia have
done so with respect to food stamps. See supra notes 28-29 and accompanying text (detailing
state laws which modify the federal ban).
34

See James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. &
CRIMINOLOGY 1, 22–25 (2004) (describing the misleading theme of inner city youth as ―superpredators‖ (internal quotations omitted)).
35

Id. at 20–21 (explaining that the young are significantly more likely to be disrespected, illegally
searched, and have force used against them when stopped by police); see also Jeffrey A. Fagan et
al., Street Stops and Broken Windows Revisited: The Demography and Logic of Proactive
Policing in a Safe and Changing City, in RACE, ETHNICITY, AND POLICING: NEW AND ESSENTIAL
READINGS, 309, 314 (Stephen K. Rice & Michael D. White eds., 2010) (discussing surveys which
indicate that African Americans are more likely than other Americans to report being stopped on
a highway by police); Report of Jeffrey Fagan, Ph.D. at 22 tbl.3, David Floyd v. City of New
York, No. 08 Civ. 01034 (S.D.N.Y. Oct. 15, 2010) (showing that NYPD officers conducted a
greater number of stop and frisks of young black men aged 16-19 in New York City than
Hispanic and white men in the same age group), available at
http://ccrjustice.org/files/Expert_Report_JeffreyFagan.pdf; William Terrill & Stephen D.
Mastrofski, Situational and Officer-Based Determinants of Police Coercion, 19 JUST. Q. 215, 236
(2002) (stating that officers in one study were significantly more likely to use force on ―males,
nonwhites, young suspects and poor suspects‖).
36

See CATHERINE Y. KIM ET AL., THE SCHOOL-TO-PRISON PIPELINE: STRUCTURING LEGAL
REFORM 119 (2010) (stating that schools have increased their reliance on outside forces to handle
discipline and, as a result, children are arrested for school misbehavior at a growing rate).
37

See DEVAH PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF MASS
INCARCERATION 90–91 & 91 fig.5.1 (2007) (finding that black applicants with a criminal record
had a lower chance of receiving a callback from an employer than white applicants with a
criminal record: five percent and seventeen percent, respectively).
16

black men who are never arrested or imprisoned endure the consequences of a stigma associated
with race.
Taken together, these two forms of exclusion—making permanent outcasts of convicted
criminals while stigmatizing other poor blacks as potential threats—have had devastating effects
on low-income black communities. While the New Jim Crow writers are not the first to have
raised these issues,38 their analogy usefully connects the dots: It highlights the cumulative impact
of a disparate set of race-related disabilities. Alexander is especially persuasive in this regard.
Invoking the ―birdcage‖ metaphor associated with structural racism theorists, she documents in
depressing detail how mass incarceration intersects with a wide variety of laws and institutions to
trap low-income black men in a virtual cage.39 Her elaboration of the Jim Crow analogy is also
useful because, by skillfully deploying a rhetorically provocative claim, she has drawn
significant media attention to the often ignored phenomenon of mass imprisonment.40

38

See generally DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND FAMILY
LIFE IN URBAN AMERICA (2004) (describing far-reaching effects of incarceration on the social
life of families and communities); TODD R. CLEAR, IMPRISONING COMMUNITIES: HOW MASS
INCARCERATION MAKES DISADVANTAGED NEIGHBORHOODS WORSE (2007) (discussing how the
increasing criminalization of black men has led to their stigmatization); Jeffrey Fagan & Tracey
L. Meares, Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority
Communities, 6 OHIO ST. J. CRIM. L. 173 (2008) (analyzing the paradoxical effects that
incarceration has on minority communities); Dorothy E. Roberts, The Social and Moral Cost of
Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271 (2004) (detailing
ways in which the mass incarceration of African-Americans has damaged social networks,
distorted social norms, and destroyed social citizenship).
39

ALEXANDER, supra note 22, at 179–80.

40

E.g., Darryl Pinckney, Invisible Black America, N.Y. REV. OF BOOKS, Mar. 10, 2011, at 34
(―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.‖) Charles M. Blow, Smoke and
Horrors, N. Y. TIMES, Oct. 23, 2010, at A21 (citing the Jim Crow analogy with approval).
Alexander‘s book has also been featured on National Public Radio and The Bill Moyers Journal.
Scholar: Jim Crow Is Far From Dead (NPR radio broadcast June 2, 2010),
17

So, especially for those of us who believe that America incarcerates too many people
generally, and too many African-Americans specifically, what objection could there be to the
claim that our criminal justice system is the New Jim Crow? Before answering that question, let
me pause to clarify what I am not arguing. I do not suggest that mass incarceration is anything
less than a profound social ill; nor do I argue that racial disparity, racial indifference, and even
outright racial animus in the criminal justice system are yesterday‘s concerns. Furthermore, I am
not suggesting that the Jim Crow analogy fails because mass incarceration is not exactly the
same as Jim Crow. After all, analogies are by definition partly true and partly false, and the New
Jim Crow writers—especially Alexander—acknowledge important differences between the two
racial caste systems.41 Finally, I am not suggesting that the New Jim Crow writers are unworthy
of serious attention. To the contrary, I believe they have made and continue to make a hugely
important contribution to the criminal justice literature.
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
http://www.npr.org/templates/story/story.php?storyId=127368484, Bill Moyers Journal, Bryan
Stevenson and Michelle Alexander (PBS television broadcast Apr. 2, 2010).
41

The best of the New Jim Crow writers recognize that the analogy between Jim Crow and mass
incarceration is imperfect. ALEXANDER, supra note 22, at 195-208. For example, Alexander
points out that while the Old Jim Crow never purported to be colorblind, the New Jim Crow
operates under the myth of colorblindness. Id. at 11-12 (explaining that ―[t]he colorblind public
consensus that prevails in America today—i.e., the widespread belief that race no longer
matters—has blinded us to the realities of race in our society and facilitated the emergence of a
new caste system.‖). See also Roberts, supra note 21, at 263 (―[u]nlike state violence inflicted in
the Jim Crow era explicitly to reinstate blacks‘ slave status, today‘s criminal codes and
procedures operate under the cloak of colorblind due process. The racism of the criminal justice
system is therefore invisible to most Americans.‖). The myth of colorblindness has provided a
cover for egregious injustices in the criminal justice system, and Alexander effectively employs
the Jim Crow analogy to unmask some of them. Consider the recently narrowed disparity in
federal sentences for possessing crack versus powder cocaine. The law does not say that black
drug offenders will be treated more harshly than white offenders; it makes no reference to race.
But the facially race-neutral law has been anything but race-neutral as applied; its impact on
African-American defendants has been devastating.
18

or ignore many important dissimilarities. As a result, the analogy encourages 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. In sum, as I
outline in the Parts that follow, the analogy directs our attention away from important features of
crime and punishment in America which require our attention if we are to understand mass
incarceration in all of its dimensions.

III. OBSCURING HISTORY: THE BIRTH OF MASS INCARCERATION

The New Jim Crow writers typically start their argument with an historical claim,
grounded in a theory of backlash.42 The narrative goes like this: Just as Jim Crow was a
response to Reconstruction and the late-nineteenth-century Populist movement that threatened
Southern elites, mass incarceration was a response to the civil rights movement and the tumult of
the 1960s. Beginning in the mid-1960s, Republican politicians—led by presidential candidates
Goldwater and Nixon—focused on crime in an effort to tap into white voters‘ anxiety over
increased racial equality and a growing welfare state. Barry Goldwater cleared the way in 1964
when he declared, ―Choose the way of [the Johnson] Administration and you have the way of

Dorothy Roberts summarizes the historical claim: ―Thus, the shift in law enforcement policies
at the end of the 1970s that started the astronomical U.S. prison expansion can be seen as a
backlash against the reforms achieved by civil rights struggles.‖ Roberts, supra note 21, at 272.
For similar accounts, see ALEXANDER, supra note 22, at 40–47; Ian F. Haney López, Post-Racial
Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CAL. L. REV.
1023, 1031–37 (2010). See also Loïc Wacquant, From Slavery to Mass Incarceration: Rethinking
the “race question” in the US, 13 NEW LEFT REV. 41, 52 (2002) (―By the end of the seventies,
then, as the racial and class backlash against the democratic advances won by the social
movements of the preceding decade got into full swing, the prison abruptly returned to the
forefront of American society and offered itself as the universal and simplex solution to all
manners [sic] of social problems.‖).
42

19

mobs in the street.‖43 In 1968, Nixon perfected Goldwater‘s strategy. In the words of his advisor
H. R. Haldeman, Nixon ―emphasized that you have to face the fact that the whole problem is
really the blacks. The key is to devise a system that recognizes this while not appearing to.‖44
Ehrlichman, another advisor, characterized Nixon‘s campaign strategy as follows: ―We‘ll go
after the racists.‖45
There is much truth to this account, and its telling demonstrates part of what is useful
about the Jim Crow analogy. Today, too many Americans refuse to acknowledge the continuing
impact of race and prejudice on public policy. By documenting mass imprisonment‘s roots in
race-baiting political appeals, the New Jim Crow writers effectively demolish the notion that our
prison system‘s origins are exclusively colorblind.
But in emphasizing mass incarceration‘s racial roots, the New Jim Crow writers overlook
other critical factors. The most important of these is that crime shot up dramatically just before
the beginning of the prison boom.46 Reported street crime quadrupled in the twelve years from
1959 to 1971.47 Homicide rates doubled between 1963 and 1974,48 and robbery rates tripled.49

43

ALEXANDER, supra note 22, at 41 (quoting Barry Goldwater, Peace Through Strength, in 30
VITAL SPEECHES OF THE DAY 744 (1964)).
44

Id. at 43 (citing WILLARD M. OLIVER, THE LAW & ORDER PRESIDENCY 127–28 (2003).

45

Id. at 44 (quoting JOHN EHRLICHMAN, WITNESS TO POWER 233 (1970)).

DAVID GARLAND, THE CULTURE OF CONTROL 90 (2001) (―In the USA, crime rates rose
sharply from 1960 onwards, reaching a peak in the early 1980s when the rate was three times that
of twenty years before, the years between 1965 and 1973 recording the biggest rise on record.
Moreover, the increases occurred in all the main offence categories, including property crime,
crimes of violence and drug offending.‖).
46

47

GARY LAFREE, LOSING LEGITIMACY: STREET CRIME AND THE DECLINE OF SOCIAL
INSTITUTIONS IN AMERICA 20 (1998) (providing an estimate including Uniform Crime Reports
(UCR) categories for murder, robbery, rape, aggravated assault, battery, burglary, motor vehicle
theft, and larceny).
20

Proponents of the Jim Crow analogy tend to ignore or minimize the role that crime and violence
played in creating such a receptive audience for Goldwater‘s and Nixon‘s appeals. Alexander,
for example, characterizes crime and fear of crime as follows:
Unfortunately, at the same time that civil rights were being identified as a threat
to law and order, the FBI was reporting fairly significant increases in the national
crime rate. Despite significant controversy over the accuracy of the statistics,
these reports received a great deal of publicity and were offered as further
evidence of the breakdown in lawfulness, morality, and social stability.‖50
In this account, the stress is not on crime itself but on the FBI‘s reporting, about which
we are told there is ―significant controversy.‖51 But even accounting for problems with the FBI‘s
crime statistics, crime increased dramatically.52
Nor were white conservatives such as Nixon and Goldwater alone in demanding more
punitive crime policy. In The Politics of Imprisonment, Vanessa Barker describes how, in the
late 1960s, black activists in Harlem fought for what would become the notorious Rockefeller
drug laws, some of the harshest in the nation. Harlem residents were outraged over rising crime
(including drug crime) in their neighborhoods and demanded increased police presence and
stiffer penalties. The NAACP Citizens‘ Mobilization Against Crime demanded ―lengthening

48

Id. at 21–22.

49

Id. at 22.

50

ALEXANDER, supra note 22, at 41.

51

Id.

52

See GARLAND, supra note 46, at 90 (noting the significant rise in crime rates from 1960
through the 1980s); LAFREE, supra note 47, at 20–22 (citing quadrupling of street crime rates
between 1959 to 1971) see also HENRY RUTH & KEVIN R. REITZ, THE CHALLENGE OF CRIME:
RETHINKING OUR RESPONSE 75 (2003) (comparing UCR data to other available sources and
concluding that ―our best educated guess is that rates of offending for serious violent crimes
roughly doubled from 1960 to 1975, and remained somewhere in that 200 percent ballpark for the
next fifteen to twenty years‖).
21

minimum prison terms for muggers, pushers, [and first] degree murderers.‖53 The city‘s leading
black newspaper, The Amsterdam News, advocated mandatory life sentences for the ―non-addict
drug pusher of hard drugs‖ because such drug dealing ―is an act of cold, calculated, premeditated, indiscriminate murder of our community.‖54
Rising levels of violent crime and demands by black activists for harsher sentences have
no place in the New Jim Crow account of mass incarceration‘s rise. As a result, the Jim Crow
analogy promotes a reductive account of mass incarceration‘s complex history in which, as
Alexander puts it, ―proponents of racial hierarchy found they could install a new racial caste
system.‖55

IV. OBSCURING BLACK SUPPORT FOR PUNITIVE CRIME POLICY

The Harlem NAACP‘s push for tougher crime laws raises an important question, which
the Jim Crow analogy obscures: What does it mean if black citizens support the policies that
produce mass imprisonment? The old Jim Crow, after all, was a series of legal restrictions,
backed by state and private violence, imposed on black people by the white majority. When
given the opportunity, blacks rejected it. Three states—Mississippi, Louisiana, and South
Carolina—had black voting majorities during Reconstruction, and all three banned racial
segregation in public schools and accommodations.56 The Jim Crow analogy encourages us to

53

VANESSA BARKER, THE POLITICS OF IMPRISONMENT: HOW THE DEMOCRATIC PROCESS
SHAPES THE WAY AMERICA PUNISHES OFFENDERS 151 (2009).
54

Id.

55

ALEXANDER, supra note 22, at 40.

56

Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747,
790 (1991).
22

understand mass incarceration as another policy enacted by whites and helplessly suffered by
blacks. But today, blacks are much more than subjects; they are actors in determining the
policies that sustain mass incarceration in ways simply unimaginable to past generations.
So what do African-Americans think? Various writers have addressed the question of
black attitudes toward crime policy, typically through opinion polling.57 But no one has yet

57

With respect to attitudes toward sentencing policy in particular, the evidence suggests that
Americans across racial lines agree broadly about appropriate sentences for specific crimes and
those crimes‘ relative seriousness. See PRINCETON SURVEY RESEARCH ASSOCS. INT‘L FOR THE
NAT‘L CTR. FOR STATE COURTS, THE NCSC SENTENCING ATTITUDES SURVEY: A REPORT ON
THE FINDINGS 2 (July 2006), available at
http://www.ncsconline.org/d_research/Documents/NCSC_SentencingSurvey_Report_Final06072
0.pdf [hereinafter NCSC SURVEY] (noting the broad consensus among Americans that violent
crimes should result in tougher sentences than non-violent crimes); Donald Braman, Dan M.
Kahan, & David A. Hoffman, Some Realism about Punishment Naturalism, 77 U. CHI. L. REV.
1531, 1543–44 (2010) (discussing a study by Paul J. Robinson and Robert Kurtzban which
analyzed individuals‘ ranking of the wrongfulness of various actions and concluding that the
―rankings [are] highly consistent…across a broad array of demographic variables‖); J.L. Miller,
Peter H. Rossi, & Jon E. Simpson, Perceptions of Justice: Race and Gender Differences in
Judgments of Appropriate Prison Sentences, 20 LAW & SOC‘Y REV. 313, 32–30 (1986)
(―Compared to whites, in making their judgments blacks generally are less strongly influenced by
crime seriousness, more influenced by offender characteristics and the mitigating circumstances
surrounding the crime.‖). Although there are some differences between African-Americans and
whites in judgments about appropriate sentences, often with African-Americans imposing more
lenient sentences, those differences are eclipsed by variation along other demographic lines,
including class and education level. See PETER H. ROSSI & RICHARD A. BERK, JUST
PUNISHMENTS: FEDERAL GUIDELINES AND PUBLIC VIEWS COMPARED 205 (1997) (concluding
that educational attainment is strongest demographic correlate for sentencing attitudes); Carroll
Seron, Joseph Pereira, & Jean Kovath, Judging Police Misconduct: „Street-Level‟ versus
Professional Policing, 38 L. & SOC‘Y REV. 665, 678–79 (2004) (noting that several studies
suggest that ―minorities, and blacks in particular, do not hold significantly different attitudes or
expectations about issues related to the administration of the criminal justice system than
whites‖). Recent research paints a complicated picture of public attitudes toward sentencing,
showing that these attitudes are related to a broad variety of factors, including judgments about
the fairness of crime control and the judicial system more broadly, the survey respondent‘s
knowledge about current sentencing policies and sentencing alternatives, and the survey
respondent‘s personal involvement with the court system. See NCSC SURVEY, supra, at 28
(stating that ―[k]nowledge of crime and incarceration rates and personal involvement with the
court system also influence opinions about sentencing in general‖); ROSSI & BERK, supra, at
167–206 (concluding that individuals who had been involved in the criminal justice system as a
juror, plaintiff, or witness, or who had been accused or convicted of a crime were inclined to give
longer prison sentences). For analysis of black attitudes toward other aspects of crime policy, see
generally Richard R. W. Brooks, Fear and Fairness in the City: Criminal Enforcement and
Perceptions of Fairness in Minority Communities, 73 S. CAL. L. REV. 1219 (2000); Tracey L.
Meares, Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law
23

asked the following question: What sort of crime policies do black-majority jurisdictions enact?
After all, if mass incarceration constitutes the New Jim Crow, presumably a black-majority
jurisdiction today would rapidly move to reduce its reliance on prisons.
Of course, one reason no one has asked this question is that, unlike during
Reconstruction, there are no states today with black voting majorities. Still, one jurisdiction
warrants scrutiny. Washington, D.C. is the nation‘s only majority-black jurisdiction that controls
sentencing policy.58 The District is 51% African-American.59 Since home rule was established
in 1975, all six of its mayors have been black, and the city council has been majority-black for
most of that time.60 The police are locally controlled, and the mayor appoints the police chief.
African-Americans are overrepresented in the police force: African-Americans make up 66% of

Enforcement: Lessons for Federal Criminal Law, 1 BUFFALO CRIM. L. REV. 137 (1997). For nonempirical perspectives on the same issue, see generally Randall Kennedy, RACE, CRIME AND THE
LAW (1997), and Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of
Identification, 65 S. CAL. L. REV. 1769 (1992).
58

Robert L. Wilkins, Federal Influence on Sentencing Policy in the District of Columbia: An
Oppressive and Dangerous Experiment, 11 FED. SENT‘G REP. 143, 143 (1998-1999) (explaining
that ―even though Congress and the President have veto power over D.C. legislation and the
power to pass legislation exclusively applicable to the District of Columbia, they had generally
respected . . . ‗home rule‘ . . . and not forced many major legislative changes in the sensitive and
inherently local area of criminal law,‖ including in the area of sentencing).
59

2010 Census: District of Columbia Profile, U.S. CENSUS BUREAU 1 (last revised Oct. 6, 2011),
http://www2.census.gov/geo/maps/dc10_thematic/2010_Profile/2010_Profile_Map_District_of_
Columbia.pdf.
60

The D.C. Council was majority black from 1975 until 1999, then majority white until 2009,
when it went back to majority black. See Quiet Revolution on the D.C. Council, WASH. TIMES,
Nov. 9, 1998, at A18 (explaining that the 1998 election resulted in the first majority white
Council since the establishment of home rule); Nikita R. Stewart, D.C. Wire: News and Notes on
District Politics: Schwartz Concedes to Michael Brown, WASH. POST. (Nov. 5, 2008, 2:18 PM),
http://voices.washingtonpost.com/dc/2008/11/schwartz_concedes_to_michael_b.html (reporting
that Michael Brown took Carol Schwartz‘s seat in the 2008 City Council election, which meant
that seven of the Council‘s 13 seats were held by African Americans); see also Previous
Councils, Council of the District of Columbia,
http://www.dccouncil.washington.dc.us/previouscouncils (last visited Oct. 7, 2011) (listing all
previous council members in each term).
24

the Metropolitan Police Department (MPD),61 and the MPD has the highest percentage of black
officers in supervisory positions of any large majority-black city in the country.62 Because of its
unique status, the city assumes both state and municipal functions in many aspects of the
criminal process. Most important for purposes of this analysis, the D.C. city council and the
mayor operate like a state government in terms of sentencing policy; they determine statutory
maximums for all offenses, decide whether to impose mandatory minimums, and so on.
Similarly, because the mayor appoints—and the city council confirms—the police chief, local
officials exercise significant control over policing practices. This control is important because
policing practices are a significant source of racial disparity in incarceration rates.63
I acknowledge that the state analogy is imperfect. D.C. has less autonomy than a state in
a number of important ways. For example, while the process for selecting judges for D.C. courts
includes significant input from a local commission and from the office of D.C.‘s elected
representative to Congress (currently Eleanor Holmes Norton64), the White House ultimately

61

Brian A. Reaves & Matthew J. Hickman, Law Enforcement Management and Administrative
Statistics, 2000: Data for Individual State and Local Agencies with 100 or More Officers 27,
BUREAU OF JUSTICE STATISTICS (2004), available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1052 (click on ―Full Report‖).
62

Ronald Weitzer, Steven A. Tuch & Wesley G. Skogan, Police-Community Relations in a
Majority Black City, 45 J. RES. CRIME AND DELINQUENCY 398, 407 (2008). Even so, the MPD is
not immune to racial divisions within its ranks. Last July, a federal jury awarded close to $1
million in damages to four black MPD officers who had been retaliated against by their
supervisors for complaining of discrimination. See Spencer S. Hsu, Jury Orders District To Pay
$900,000 to 4 Police Officers in Retaliation Case, WASH. POST, July 20, 2010,
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/19/AR2010071904938.html.
(reporting on the jury‘s order).
63

See Jeffrey A. Fagan et al., Street Stops and Broken Windows Revisited, supra note 35, at 314
(―Recent empirical evidence on police stops supports perceptions among minority citizens that
police disproportionately stop African American and Hispanic motorists, and that once stopped,
these citizens are more likely to be searched or arrested.‖) (citations omitted).
64

See Biography of Congresswoman Elizabeth Holmes Norton, United States House of
Representatives,
25

makes judicial appointments.65 In addition, although local officials prosecute juvenile offenses,
the United States Attorney‘s Office prosecutes more serious offenses.66
And yet, despite these external forces, local black elected officials exert considerable
power over crime policy and have the ability to push back against federal actors. For example, if
the mayor and the city council think that federal prosecutors are targeting too many low-level
drug offenders, or that federally-appointed judges are imposing excessive sentences for drug
offenses, they can lower the maximum penalties for these offenses. And they have, in fact,
exercised this power. For example, in 1982, by a vote of 72% to 28%, D.C. residents adopted an
initiative providing for mandatory minimum penalties for defendants who distributed controlled
substances or who possessed such substances with the intent to distribute them.67 Twelve years
later, in December 1994, the city council voted to abolish mandatory minimums for nonviolent
drug offenses.68 Councilmembers defended the move as a recognition that mandatory minimums
had ―failed to deter drug use and drug sales.‖69

http://www.norton.house.gov/index.php?option=com_content&view=article&id=189&Itemid=94
(last visited Oct. 7, 2011) (discussing Congresswoman‘s right to recommend federal judges when
granted senatorial courtesy).
65

D.C. CODE § 1-204.33 (2011).

66

See D.C. CODE § 23-101(a)–(c) (2011) (detailing how local prosecutors prosecute municipal
crimes where the penalty doesn‘t exceed a fine or one year of imprisonment, as well as crimes
relating to disorderly conduct and lewd, indecent, or obscene behavior while the US Attorney,
according to this section, prosecutes everything else, except as otherwise provided by law.)
67

See D.C. Law 4-166, §§ 9 & 10, 30 D.C. Reg. 1082 (Mar. 9, 1983), codified in D.C. CODE §
33-541(e) (1993) (repealed 1994) (describing the act and giving referendum vote totals).
68

District of Columbia Nonviolent Offenses Mandatory-Minimum Sentences Amendment Act of
1994, D.C. Law 10-258, § 3, 42 D.C. Reg. 238 (effective May 25, 1995) (codified at D.C. CODE
§ 48-904.01(c) (2011) (repealing the provision).
Matt Neufeld, Minimum Terms‟ Demise Wins Praise: But Prosecutors Say Bad Message Sent,
WASH. TIMES, Nov. 3, 1994, at C5 (quoting Councilmember William Lightfoot).
69

26

To be sure, local legislators do not operate with total autonomy from the federal
government. If the mayor and city council stray too far from what Congress deems appropriate,
Congress retains the authority to overrule them.70 However, Congress has rarely interfered with
D.C. autonomy in matters of criminal law. When it has, its interventions have typically related
to hot-button issues such as medical marijuana and needle exchanges for drug addicts.71 In
addition, although D.C. officials cannot veto congressional actions, they retain the right to
protest, if only symbolically, against those with whom they disagree. In certain areas—most
notably the denial of voting rights to D.C. residents—they have done exactly that. Former
Mayors Sharon Pratt Kelly, Anthony Williams, and Adrian Fenty, and current Mayor Vincent
Gray have all led protests—almost always with D.C.‘s elected representative to Congress
Eleanor Holmes Norton—to demand representation or to object to congressional proposals that
threaten home rule.72 Mayor Kelly and Councilmember Kevin Chavous were arrested in 1993 as
part of a pro-Statehood rally.73 In 2011, Mayor Gray and five councilmembers were arrested on

70

See Wilkins, supra note 58, at 143.

71

Victoria Benning, Calling for Equality to Begin at Home; Gay Rights Rally Decries
Discrimination, Congressional Action Against D.C. Measures, WASH. POST., Mar. 22, 1999, at
B03.
72

See Leroy Tillman, D.C. Mayor, Jackson Arrested in Protest, FRESNO BEE, Aug. 27, 1993, at
A6 (reporting on a protest at which Sharon Pratt Kelly was arrested); Katie Drake, D.C. Demands
Voting Rights, THE LEADERSHIP CONFERENCE, Apr. 17, 2002, http://www.civilrights.org/votingrights/dc-voting-rights/dc-demands-voting-rights.html (reporting on a rally for D.C. voting rights
addressed by Eleanor Holmes Norton and Anthony Williams); Thousands March for D.C. Voting
Rights, WTOP, Apr. 16, 2007, http://www.wtop.com/?nid=25&sid=1116494&sidelines=1
(reporting on a march for voting rights led by Norton and Adrian Fenty and attended by Anthony
Williams and D.C. Councilmembers); Ashley Southall, D.C. Officials Protest Proposed House
Rule, N.Y. TIMES, Jan. 4, 2011, http://thecaucus.blogs.nytimes.com/2011/01/04/d-c-officialsprotest-proposed-house-rule/. (reporting on Norton and Vincent Gray‘s protest of a proposal to
strip Norton of her right to vote on amendments and procedures when the House of
Representatives convenes as a Committee of the Whole).
73

Tillman, supra note 72, at A6.
27

Capitol Hill while protesting riders to the federal spending bill restricting how D.C. may spend
its tax dollars.74
In matters of criminal law, however, they have largely remained silent. There is little
evidence that D.C. officials have sought more lenient criminal policies, only to be overruled by
Congress. To the contrary, local elected officials have recently pushed for tougher criminal
penalties. In 2008, for example, Mayor Fenty introduced an omnibus crime bill that included a
variety of provisions sought by prosecutors.75 As Fenty argued, ―we are giving the police and
the U.S. attorney more resources to put more people in jail.‖76 The city council passed the law
with few modifications.77
So what do incarceration rates look like in this majority-black city with substantial local
control over who goes to prison and for how long?78 They mirror the rates of other cities where

74

Ben Pershing, Gray, Council Members at Protest of D.C. Riders in Spending Bill, WASH. POST,
Apr. 12, 2011, available at http://www.washingtonpost.com/local/politics/gray-council-membersarrested-at-protest-of-dc-riders-in-spending-bill/2011/04/11/AFRWPBND_story.html.
Fenty Administration Introduces Anti-Crime Bill, WHAT‘S NEW IN THE METROPOLITAN
POLICE DEP‘T (Oct. 10, 2008), available at
http://newsroom.dc.gov/file.aspx/release/15141/wn_081010.pdf.
75

76

See Hamil R. Harris, Inmates Get Tools for Life Outside Jail, WASH. POST, Feb. 12, 2009,
http://www.washingtonpost.com/wp
-dyn/content/article/2009/02/11/AR2009021101546.html (discussing city council‘s passage of the
law after debate over a single amendment).
77

Nikita R. Stewart, Council Approves Crime Bill in 10-3 Vote, WASH. POST, June 30, 2009,
http://voices.washingtonpost.com/dc/2009/06/council_approves_crime_bill_in.html. I do not
mean to argue that D.C. officials have never advocated for less punitive crime policy. They have
occasionally done so—for example, as I mentioned earlier, when the D.C. Council eliminated
mandatory minimums for drug offenses. My point is that, despite the federal involvement in
District affairs, the D.C. Council retains substantial authority over its criminal justice system and
sentencing structure. In sum, D.C. largely has the criminal justice system that it has chosen for
itself.
There are a variety of measures we might use to assess a jurisdiction‘s relative punitiveness.
Does the jurisdiction have a death penalty, and, if so, how frequently is it used? Does it have
mandatory minimums for sentencing or three-strikes provisions? Does it permanently
78

28

African-Americans have substantially less control over sentencing policy. Washington, D.C. (a
majority-black jurisdiction) and Baltimore (a majority-black city within a majority-white state)
have similar percentages of young African-American men under criminal justice supervision.79
Detroit, an overwhelmingly African-American city in a majority-white state,80 has a smaller
proportion of adults under criminal justice supervision than Washington, D.C. One in twentyfive Detroit81 adults are in jail or prison, on probation, or on parole, compared to one in twentyone adults in D.C.82
These data raise an important challenge to the Jim Crow analogy, since the analogy

disenfranchise felons? What are conditions like inside its prisons? How adequately does it fund
its indigent defense system? And the list goes on. But incarceration rates are the most commonly
used criteria, for at least two reasons. First, they allow for relatively straightforward comparisons
across jurisdictions. Second, incarceration rates usefully aggregate a number of other measures.
Whether a jurisdiction has mandatory minimums, what maximum sentence length it authorizes
for a particular offense, whether it has ―three strikes‖ or other repeat offender provisions, whether
it punishes crack and powder cocaine offenses differently—these all factor into that jurisdiction‘s
incarceration rates. For a thoughtful discussion of the advantages and disadvantages of using
incarceration rates to compare penal policies across jurisdictions, see Michael Tonry,
Determinants of Penal Policies, in 36 CRIME AND JUST.: REV. RES. 1, 7–13 (Michael Tonry, ed.
2007).
79

See ERIC LOTKE & JASON ZIEDENBERG, JUSTICE POLICY INSTITUTE, TIPPING POINT:
MARYLAND‘S OVERUSE OF INCARCERATION, AND THE IMPACT ON COMMUNITY SAFETY 2–3, 9
(2005) (noting the incarceration rate for young African-American men in Baltimore was 56% in
1992 and 52% in 2004); ERIC LOTKE, Hobbling a Generation: Young African American Men in
Washington, D.C.‟s Criminal Justice System – Five Years Later, 55 CRIME & DELINQUENCY 355,
357 (1998) (noting the incarceration rate for young African-American men in Washington, D.C.
was 50% in 1997).
KAREN R. HUMES, NICHOLAS A. JONES & ROBERTO R. RAMIREZ, U.S. DEP‘T OF COMMERCE,
OVERVIEW OF RACE AND HISPANIC ORIGIN: 2010, at 18 (2011) (noting that Michigan is 77%
non-Hispanic white).
80

81

THE PEW CENTER ON THE STATES, ONE IN 31: THE LONG REACH OF AMERICAN CORRECTIONS
8–9 (2009).
82

Id. at 7, 42.
29

attributes mass incarceration entirely to the animus83 or indifference84 of white voters and public
officials toward black communities. While the analogy might explain the sky-high AfricanAmerican incarceration rates in Baltimore and Detroit, it does not explain those in Washington,
D.C. And just as the analogy fails to explain why a majority-black jurisdiction would lock up so
many of its own, it says little about blacks who embrace a tough-on-crime position as a matter of
racial justice.
When I was a public defender in D.C., my African-American counterparts in the U.S.
Attorney‘s Office often informed me that they had become prosecutors in order to ―protect the
community.‖ Since I started teaching, I have met many students with prosecutorial ambitions
who feel the same way. And they have a point:85 If stark racial disparities within the prison
system motivate mass incarceration‘s critics, stark racial disparities among crime victims
motivate tough-on-crime African-Americans. Young black men suffer a higher rate of both fatal
and nonfatal violence.86 In 2006, the homicide rate for young black men was nineteen times
83

See, e.g., JEROME G. MILLER, SEARCH AND DESTROY: AFRICAN-AMERICAN MALES IN THE
CRIMINAL JUSTICE SYSTEM 2 (1996) (―The white majority embraced the draconian [criminal]
measures with enthusiasm, particularly as it became clear that they were falling heaviest on
minorities in general, and on African-American males in particular.‖).
84

See, e.g., Michael Tonry & Matthew Melewski, The Malign Effects of Drugs and Crime
Control Policies on Black Americans, in THINKING ABOUT PUNISHMENT: PENAL POLICY ACROSS
SPACE, TIME AND DISCIPLINE 81, 87 (Michael Tonry ed. 2009) (―The history of American race
relations has produced political and social sensibilities that made white majorities comparatively
insensitive to the suffering of disadvantaged blacks.‖); id. at 111 (―[I]nsensitivity to the interests
of black Americans continues to characterize American crime policies.‖).
85

Cf. Kate Stith, The Government Interest in Criminal Law: Whose Interest Is It, Anyway?, in
PUBLIC VALUES IN CONSTITUTIONAL LAW 137, 153 (Stephen E. Gottlieb ed. 1993) (―[I]t is the
failure vigorously to enforce the criminal law in black neighborhoods—an especially notorious
practice a generation ago—that constitutes a denial of liberty to black citizens. Securing greater
personal liberty for black law abiders by enforcing the criminal law is not racial discrimination; it
is black liberation.‖).
86

JOHN A. RICH, WRONG PLACE, WRONG TIME: TRAUMA AND VIOLENCE IN THE LIVES OF
YOUNG BLACK MEN, at ix (2009).
30

higher than the rate for young white men.87 Most crime is intra-racial; over 90% of black
homicide victims are killed by other blacks, and more than 75% of all crimes against black
victims are committed by blacks.88 Many of the black prosecutors I know are very much like
Paul Butler, who, though now a critic of American crime policy, originally became a prosecutor
to help low-income black communities. As Butler recounts:
My friends from law school thought it was kind of wack that I was a prosecutor. I
had been the down-for-the-cause brother who they had expected to work for Legal
Aid or as a public defender. I told them I was helping people in the most
immediate way—delivering the protection of the law to communities that needed
it most, making the streets safer, and restoring to victims some measure of the
dignity that a punk criminal had tried to steal.89
Butler, writing before his ―conversion,‖ speaks for people who care deeply about other
blacks, and see tough-on-crime policies as pro-black.90 I disagree with them because I view
mass incarceration as doing much more harm than good, and I would opt for a radically different
approach to combating violence. However, their numbers and their passion have no analogue in
the Jim Crow era.
The New Jim Crow writers are not oblivious to the fact that some blacks support toughon-crime policies. The standard response is to argue that blacks do not support the policies that

87

Id.

JAMES ALAN FOX & MARIANNE W. ZAWITZ, U.S. DEP‘T OF JUSTICE, BUREAU OF JUSTICE
STATISTICS, HOMICIDE TRENDS IN THE UNITED STATES: 1998 UPDATE 3 (2000); CALLIE
RENNISON, U.S. DEP‘T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, VIOLENT VICTIMIZATION
AND RACE, 1993–1998 10 tbl.14 (2001), available at
http://www.bjs.gov/content/pub/pdf/vvr98.pdf.
88

89

PAUL BUTLER, LET‘S GET FREE: A HIP-HOP THEORY OF JUSTICE 24 (2009).

90

Cf. Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107
HARV. L. REV. 1255, 1258–59 (1994) (―[S]ome of the policies most heatedly criticized by certain
sectors of black communities are supported and enforced by other African-Americans within
these same communities.‖).
31

sustain mass incarceration, but simply comply with them:
In the era of mass incarceration, poor African Americans are not given the option
of great schools, community investment, and job training. Instead, they are
offered police and prisons. If the only choice that is offered blacks is rampant
crime or more prisons, the predictable (and understandable) answer will be ―more
prisons.‖91
This answer compellingly demonstrates how choice is constrained for ghetto residents.
But it is not a complete response to the black prosecutor phenomena. Prosecutors like Paul
Butler do not live in a world of constrained choices. They studied at prestigious law schools and
received appellate clerkships. They could work to promote alternatives that the New Jim Crow
writers and I believe will combat crime more effectively than locking up more black men.
Instead, they choose—in the most robust and unfettered sense of that word—a different path.
And the fact that they make this choice, combined with their (at least in some cases) racial justice
orientation, raises an important question about whether the ends they seek can be fairly
analogized to Jim Crow.
The Washington, D.C. phenomenon raises a similar set of questions. Admittedly, the
District‘s mayor and city council do not have unlimited options in deciding how to fight crime;
their choices are not as unconstrained as Paul Butler‘s choice to become a prosecutor when he
graduated from Harvard Law School. Yet they have real choices around criminal justice policy.
I know this in part because my former colleagues at the Public Defender Service (PDS) regularly
testify against tough-on-crime legislation before the city council, and they regularly present less
punitive alternatives—sometimes including the education, community investment, and job
training programs that Alexander hypothesizes blacks will choose over prison if given the option.
ALEXANDER, supra note 22, at 205. See also López, supra note 42, at 1058 (―Forced into a
‗choice‘ between governmental neglect versus neglect combined with aggressive policing, it
seems cruel to defend such policing on the ground that it is ‗preferred‘ by those trapped in
impoverished nonwhite neighborhoods.‖).
91

32

Yet, PDS often fails to persuade the black-majority legislative body. This hardly means the city
council is acting wisely. But it is more than compliant with the laws it enacts. It chooses the
laws it enacts—and absent evidence that the council is forced into its choices the most
reasonable conclusion is that that it supports the laws it enacts.92

V. OBSCURING VIOLENCE

To this point, I have focused principally on crimes of violence and the state‘s response to
such crimes. I part company with the New Jim Crow writers in this regard. They focus almost
exclusively on the War on Drugs. This approach made sense for early ACLU advocates such as
Glasser and Boyd, who explicitly limited the Jim Crow analogy according to their stated goal of
curtailing the War on Drugs.93 More recent proponents of the analogy have expanded the
critique beyond the bounds of the drug war to attack the broader phenomenon of mass
incarceration. Nonetheless, those making the New Jim Crow claim still restrict their attention to

92

I do not mean to ascribe a punitive motive to individual Council members or those of the
Council as a whole. It is difficult to divine motive in cases such as these. Perhaps the Council is
acting because of hostility or indifference to blacks accused of crime. Maybe its choices result
from perceived budget constraints, or a perception of what voters want, or something else. My
goal here is not to argue that any of these motives predominates. Instead, I seek to raise questions
about a motive argument that others have made. Specifically, I use the evidence from the D.C.
Council to challenge the claim that blacks only choose prison because they have no other choice
and that they would opt for less punitive alternatives if such were available. See note 88 and
accompanying text. Faced with evidence that a legislative body chooses A over B when presented
with both options, those who assert that the legislature really wanted B but was forced to choose
A bear the evidentiary burden to show coercion. And, at least to this point, those who make the
claim that black legislators are coerced into policies that sustain mass incarceration have
produced no evidence of such.
Glasser expressly excluded non-drug offenders from his campaign, saying that ―[t]he police
power of the state, according to the ACLU, is legitimately used to prevent one citizen from
harming others, from attacking others, and to punish him when he does.‖ Glasser, supra note 12,
at 715.
93

33

drug offenders.94 Other crimes—especially violent crimes—are rarely mentioned.95
The choice to focus on drug crimes is a natural—even necessary—byproduct of framing
mass incarceration as a new form of Jim Crow.96 One of Jim Crow‘s defining features was that
it treated similarly-situated blacks and whites differently. For writers seeking analogues in
today‘s criminal justice system, drug arrests and prosecutions provide natural targets, along with
94

This theme in the discourse on mass incarceration not only exists among the New Jim Crow
writers, but also extends to others writing on crime and racial justice. See, e.g., Geneva Brown,
White Man‟s Justice, Black Man‟s Grief: Voting Disenfranchisement and the Failure of the
Social Contract, 10 BERKELEY J. AFR.-AM. L. & POL‘Y 287, 297 (2008) (arguing that the racial
disproportionality in mass incarceration ―is evidence that the War on Drugs was a War on
African-American men.‖); Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality:
Or Why the „War on Drugs‟ Was a „War on Blacks‟, 6 J. GENDER RACE & JUST. 381, 393 (2002)
(―The mass incarceration of African-Americans is a direct consequence of the War on Drugs.‖);
Tyson, supra note 21, at 364 (arguing that ―[a]t the heart of racialized mass imprisonment are
questions regarding the appropriateness of non-violent offender sentencing,‖ specifically drug
law policies).
95

The New Jim Crow writers take varied approaches to violence. Some ignore it entirely. See
generally Gary Ford, The New Jim Crow: Male and Female, South and North, From Cradle to
Grave, Perception and Reality: Racial Disparity and Bias in America‟s Criminal Justice System,
11 RUTGERS RACE & L. REV. 323 (2010) (discussing the racial disparities in the criminal justice
system through empirical and ethnographic studies, but never mentioning violent crime); Floyd
D. Weatherspoon, The Mass Incarceration of African-American Males: A Return to
Institutionalized Slavery, Oppression, and Disenfranchisement of Constitutional Rights, 13 TEX.
WESLEYAN L. REV. 599 (2007) (expanding the analogy through a focus on the
disenfranchisement of black males achieved through mass incarceration, but never discussing the
impact of violent crime). The most careful of the writers mention it, but without emphasis. See,
e.g., ALEXANDER, supra note 22, at 204 (―[B]lack men do have much higher rates of violent
crime, and violent crime is concentrated in ghetto communities.‖).
96

I should clarify that the New Jim Crow writers are not alone in choosing to focus on drugs
rather than violence. This tendency is widespread among civil rights and racial justice advocates,
as I experienced when serving on a panel addressing mass incarceration at a conference hosted by
one of the nation‘s leading civil rights organizations. The audience appeared moved by the
magnitude of the crisis that mass incarceration presents. But despite my attempts to broaden the
conversation, it remained rooted in the most comfortable place, with everyone condemning the
War on Drugs and no one addressing the issue of violent crime. The tendency is common in the
academic community as well. Consider Dorothy Roberts, who calls for the abolition of capital
punishment but offers no other relief for violent offenders in her list of stated goals. Roberts,
supra note 19, at 284 (describing her proposal ―to drastically reduce the prison population by
seeking state and federal moratoriums on new prison constructions, amnesty for most prisoners
convicted of nonviolent crimes, and repeal of excessive, mandatory sentences for drug offenses;
to abolish capital punishment; and to implement new procedures to identify and punish patterns
of police abuse.‖) (emphasis added) (footnote omitted).
34

racial profiling in traffic stops. Blacks and whites use drugs at roughly the same rates, but
African-Americans are significantly more likely to be arrested and imprisoned for drug crimes.97
As with Jim Crow, the difference lies in government practice rather than the underlying
behavior. The statistics on selling drugs are less clear-cut, but here too the racial disparities in
arrest and incarceration rates exceed any disparities that might exist in the race of drug sellers.98
But violent crime is a different matter. While rates of drug offenses are roughly the same
throughout the population, blacks are overrepresented among the population for violent offenses.
For example, the African-American arrest rate for murder is seven to eight times higher than the
white arrest rate; the black arrest rate for robbery is ten times higher than the white arrest rate.99
Murder and robbery are the two offenses for which the arrest data are considered most reliable as
an indicator of offending.100
In making this point, I do not mean to suggest that discrimination in the criminal justice
system is no longer a concern. There is overwhelming evidence that discriminatory practices in
drug law enforcement contribute to racial disparities in arrests and prosecutions, and even for
violent offenses there remain unexplained disparities between arrest rates and incarceration

97

Tonry & Melewski, supra note 84, at 104–05.

98

Id. at 105–09.

99

RUTH & REITZ, supra note 52, at 33. For other crimes the differences are smaller. For
burglary, larceny, and motor vehicle theft, for example, the black arrest rates in 1990 were three
to four times the white arrest rates. Id.
100

Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U.
COLO. L. REV. 743, 752 (1993); LAFREE, supra note 47, at 49 (―Both critics and supporters of
UCR [Uniform Crime Reports] agree that its quality is generally highest for more serious crimes
. . . because citizens are more likely to report more serious crimes to police and police are more
likely to make arrests for more serious crimes.‖).
35

rates.101 Instead, I make the point to highlight the problem with framing mass incarceration as a
new form of Jim Crow. Because the analogy leads proponents to search for disparities in the
criminal justice system that resemble those of the old Jim Crow, they confine their attention to
cases where blacks are like whites in all relevant respects, yet are treated worse by law. Such a
search usefully exposes the abuses associated with racial profiling and the drug war. But it does
not lead to a comprehensive understanding of mass incarceration.
Does it matter that the Jim Crow analogy diverts our attention from violent crime and the
state‘s response to it, if it gives us tools needed to criticize the War on Drugs? I think so
because, contrary to the impression left by many of mass incarceration‘s critics, the majority of
America‘s prisoners are not locked up for drug offenses. Some facts worth considering:
According to the Bureau of Justice Statistics, in 2006 there were 1.3 million prisoners in state
prisons, 760,000 in local jails, and 190,000 in federal prisons.102 Among the state prisoners, 50%
were serving time for violent offenses, 21% for property offenses, 20% for drug offenses, and
8% for public order offenses.103 In jails, the split among the various categories is more equal,

101

In addition to the discretionary decisions by police evidencing racial disparities, drug cases
present the strongest evidence for disparate treatment in the court system itself. In his landmark
studies comparing arrest rates to incarceration rates for various offenses, Blumstein found that
drug prosecutions offered the largest unexplained racial disparities. Alfred Blumstein, On the
Racial Disproportionality of the United States‟ Prison Populations, 73 J. CRIM. L. &
CRIMINOLOGY 1259, 1274 (1982); Blumstein, supra note 100, at 751–52 (1993).
WILLIAM J. SABOL, HEATHER COUTURE, & PAIGE M. HARRISON, U.S. DEP‘T OF JUSTICE,
BUREAU OF JUSTICE STATISTICS, BULLETIN: PRISONERS IN 2006, at 4 (2007), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/p06.pdf. I use the 2006 numbers because they are the
most recent for which the Bureau of Justice Statistics has published the breakdown by offense
type for state prisoners.
102

103

SABOL, WEST & COOPER, supra note 1, at 37 app. tbl.15. Of the 1,333,100 state prisoners,
667,900 were serving time for violent offenses, 277,900 for property offenses, 265,800 for drug
offenses, and 112,300 for public order offenses (7200 were other/unspecified). The percentages
for African-American offenders are similar, with 50% serving time for violent offenses, 19% for
property offenses, 23% for drug offenses, and 7% for public order offenses. Id.
36

with roughly 25% of inmates being held for each of the four main crime categories (violent,
drug, property, and public order).104 Federal prisons are the only type of facility in which drug
offenders constitute a majority (52%) of prisoners, but federal prisons hold many fewer people
overall.105 Considering all forms of penal institutions together, more prisoners are locked up for
violent offenses than for any other type, and just under 25% (550,000) of our nation‘s 2.3 million
prisoners are drug offenders.106 This is still an extraordinary and appalling number. But even if
every single one of these drug offenders were released tomorrow, the United States would still
have the world‘s largest prison system.107

DORIS J. JAMES, U.S. DEP‘T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT:
PROFILE OF JAIL INMATES, 2002 3 (2004) , available at
http://www.bjs.gov/content/pub/pdf/pji02.pdf. These numbers are from 2002, the most recent for
which data on jail inmates by offense category are available.
104

105

In federal prisons in 2008 (the most recent year for which Bureau of Justice Statistics data are
available), 52% were serving time for drug offenses, 33% for public order offenses (including
immigration offenses), 8% for violent offenses, and 6% for property offenses. SABOL, WEST &
COOPER, supra note 1, at 38 app. tbl.17.
106

This is simply an estimate based on the most current available data. My calculation is as
follows: 265,000 drug offenders in state prison and 95,000 in federal prison, SABOL, WEST, &
COOPER, supra note 1, at 37–38, plus 192,000 drug offenders in local jails. The jail figure uses
the most recent data for the number of inmates confined in local jails (767,000 in 2009) and
assumes that 25% of them have a drug offense as their most serious crime—which was the case
in 2002, the last year for which data on jail inmates by offense category are available. TODD D.
MINTON, U.S. DEP‘T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, JAIL INMATES AT MIDYEAR
2009—STATISTICAL TABLES 4 (2010), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/jim09st.pdf.
107

If the 550,000 drug offenders were released, the United States would have 1.75 million
prisoners. International comparisons should be made with caution. Nonetheless, using the best
available numbers, this would still exceed China‘s prison population, which stands at 1.57
million. ROY WALMSLEY, INT‘L CTR. FOR PRISON STUDIES, KING‘S COLL. LONDON, WORLD
PRISON POPULATION LIST 1 (8th ed. 2009), available at
http://www.prisonstudies.org/info/downloads/wppl-8th_41.pdf. The Chinese number does not
include administrative detention figures, which, if included, would make China the world‘s
largest jailer. Id. at 4. The United States, given its smaller population, would still have the highest
incarceration rate.
37

In distinguishing between drug offenses and violent crime, I recognize the argument that
the War on Drugs itself produces some violent crime.108 While it is impossible to dispute the
relationship between drugs and violence, we should be careful not to overstate it. The Bureau of
Justice Statistics estimates that of the 14,831 homicides committed in 2007—the most recent
year for which statistics are available—only 3.9% were drug-related.109 In 1989, at the height of
the crack epidemic, 7.4% of homicides were drug-related.110
Moreover, our prison system has grown so large in part because we have changed our
sentencing policies for all offenders, not just drug offenders. We divert fewer offenders than we
once did, send more of them to prison, and keep them in prison for much longer.111 An exclusive
focus on the drug war misses this larger point about sentencing choices. This is why it is not
enough to dismiss talk of violent offenders by saying that ―violent crime is not responsible for
the prison boom.‖112 The prison population in this country has continued to grow even after
violent crime began to decline dramatically. But while violent crime may not by itself be
responsible for mass incarceration in the simple way that tough-on-crime conservatives often
suggest, the state‟s response to it (in the form of less diversion and longer sentences) is
108

Steven B. Duke, Mass Imprisonment, Crime Rates, and the Drug War: A Penological and
Humanitarian Disgrace, 9 CONN. PUB. INT. L.J. 17, 24 (2009) (arguing that figures such as those I
rely on here tell ―only part of the story, for . . . drug prohibition is criminogenic in myriad ways‖).
U.S. DEP‘T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, Drug and Crime Facts,
http://bjs.ojp.usdoj.gov/content/dcf/duc.cfm (last visited Feb. 25, 2011).
109

110

Id.

111

WESTERN, supra note 2, at 43–45.

112

ALEXANDER, supra note 22, at 99 (emphasis omitted). See also Kennedy, supra note 21, at
489 (―The increase in incarceration that ensued over the following decades was far out of
proportion to the crime increase. Over time the level of incarceration remained high even when
crime rates dropped.‖); López, supra note 42, at 1031 (―In short, rising incarceration rates cannot
be explained by increasing crime rates, as after 1980 crime largely declined even as incarceration
rapidly accelerated.‖).
38

responsible. Thus, changing how governments respond to all crime, not just drug crime, is
critical to reducing the size of prison populations.113
I am sympathetic to the impulse to avoid discussing violent crime. Like other
progressives, the New Jim Crow writers are frustrated by decades of losing the crime debate to
those who condemn violence while refusing to acknowledge or ameliorate the conditions that
give rise to it.114 ―As a society,‖ Alexander writes, ―our decision to heap shame and contempt
upon those who struggle and fail in a system designed to keep them locked up and locked out

113

In the preceding pages I have focused on the prison population, rather than the larger group of
individuals who is under correctional control (including probation, parole, and pre-trial release).
But perhaps I am wrong to focus on prisoners; one response to my argument would be to point
out that although drug offenders are vastly outnumbered by violent ones in our nation‘s prisons,
the percentages are closer when we include all those who are under criminal justice supervision
outside of prison. The distinction matters because the New Jim Crow writers are rightly
concerned about a broader system that subjects more blacks to state supervision and collateral
consequences. See Part II, supra pp. 11–14. This is a fair response. But not a complete rejoinder.
First, because deprivation of liberty in prison is the most fundamental form of subjugation our
criminal system imposes (other than death), the growth of the prison system itself plays a
prominent role in critiques of mass incarceration, including those of the New Jim Crow writers.
Second, even looking at probationers and parolees, it is a mistake to focus exclusively on drug
offenders, for drug offenders still do not constitute a majority of those under criminal justice
supervision. For example, twenty-six percent of the 4.2 million Americans on probation have a
drug crime as their most serious offense. LAUREN E. GLAZE & THOMAS P. BONCZAR, U.S. DEP‘T
OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN: PROBATION AND PAROLE IN THE
UNITED STATES, 2009, at 26 app. tbl. 5, 27 app. tbl.6 (2010) (reporting that the break-down for
probationers, by most serious offense, was as follows: 19% violent, 26% property, 26% drug,
18% public-order, and 10% other). Thirty-six percent of the 800,000 Americans on parole have a
drug crime as their most serious offense. Id. at 36 app. tbl.15, 27 app. tbl.6 (finding that the
break-down for parolees, by most serious offense, was: 27% violent, 23% property, 36% drug,
3% weapon, and 10% other).
114

Ronald Reagan provides an example of the point of view to which progressives are reacting:

―Choosing a career in crime is not the result of poverty or of an unhappy childhood or of a
misunderstood adolescence; it‘s the result of a conscious, willful, selfish choice made by some
who consider themselves above the law, who seek to exploit the hard work and, sometimes, the
very lives of their fellow citizens.‖
Ronald W. Reagan, Remarks at the Annual Conference of the National Sheriffs‘ Association in
Hartford, Connecticut (June 20, 1984), in 1 PUB. PAPERS 884, 886 (1986).
39

says far more about ourselves than it does about them.‖115 Since it is especially difficult to
suspend moral judgment when the discussion turns to violent crime, progressives tend to avoid,
or change, the subject.116
But this approach, while understandable, is a mistake.117 Avoiding the topic of violence
disserves the very people on whose behalf the New Jim Crow writers advocate;118 the same lowincome young people of color who disproportionately enter prisons are disproportionately
victimized by crime.119 And the two phenomena are mutually reinforcing.
I had long known this as an intellectual matter, but it was driven home for me in 1997,
when I helped to open an alternative school for teens from the juvenile court system.120 Our
application asked students to tell us the best and worst aspects of their last school. ―Too many
fights‖ was the most common response to the question about the worst aspects, and many
students reported that ―too many people get jumped,‖ ―school is chaos,‖ and the environment
was ―too hectic!!‖. The kids we served were typically considered to be the troublemakers; a
115

ALEXANDER, supra note 22, at 171.

116

See supra note 95 and accompanying text (discussing how New Jim Crow writers avoid
discussion of violent crime when addressing mass incarceration).
117

Although my primary concern is analytical, overlooking violence is also a strategic error
because those who seek to challenge mass incarceration render themselves ineffectual in policy
debates when they avoid discussing violent crime. After all, advocates for tough-on-crime
measures are not going to stop discussing violence; and, by ceding this terrain to them,
progressives and the civil rights community allow those who seek more punitive crime policy to
present themselves as the sole defenders of public safety. This, in turn, diminishes progressives‘
chances of building an effective movement to counter mass incarceration.
118

Cf. Stephen L. Carter, When Victims Happen To Be Black, 97 YALE L.J. 420 (1988)
(describing and problematizing a categorical dichotomy between socially constructed concepts of
blackness and victimhood).
119

See, e.g., Forman, supra note 34, at 27–28 (arguing that because low-income youth are both
disproportionately victimized by crime and targeted for aggressive policing, it is important to
seek their participation in well-designed community policing programs).
120

For a more detailed account, see Domenici & Forman, supra note 7.
40

good portion had been kicked out of school for fighting. They had been arrested for selling
drugs, stealing cars, gun possession, aggravated assault, robbery, and, in one case, murder. Yet
their applications reminded us that even the ―tough‖ kids seek safety and security. Their acts of
violence, we came to understand, had often been closely connected to being in an environment
that felt unsafe.121
Over time, as we got to know our students better, we began to appreciate the toll that
violence had taken, and continued to take, in their lives. For example, Bobby, one of our very
first students, described being robbed and watching his friend get killed.
I try not to always do my best too much because I know, why do your best when
it can all be taken away from you in mere seconds, over something stupid?
Because my friend that get killed in front of me, I mean he didn‘t do nothing, he
didn‘t do nothing, he was always good, he got killed for his jacket, because he
didn‘t want to give up his jacket. . . .
When he was shot, I was lucky I didn‘t get shot. I got stabbed. Stabbed with an
ice pick. . . . Lost a lot of blood and everything, passed out, blood clogged up. . . .
All I kept doing was looking at him, looking at him, and wondering was we both
going to be all right, was we gonna be able to think about this, and get back at our
person. . . .
That right there I think, inspired me to say man, what the fuck man, if a nigger
can get away with killing somebody cold blood straight like that, what can‘t they
get away with? What can‘t you get away with?
If people can do stuff like that and get away with it, and not be caught, not be
arrested, not be locked up, not be killed, or suffer in no type of way, why can‘t I
do that? Why can‘t I do that? If somebody can take my friend‘s life from me,
somebody that I cared about, if they can take that from me, why can‘t I do that to
about anybody else, to anybody else, and not care about it? Not care about who I

121

As we attempted to create a safe school for these students, we learned that we could take
safety seriously without adopting the zero-tolerance measures that were growing in popularity at
that time. For a more thorough discussion of our alternative approach to combating violence, see
id. (manuscript at 15–19, on file with authors).
41

hurt, who I make feel my pain. Just don‘t even care, don‘t have no sympathy for
nobody. 122
There are no easy answers to the tragedy conveyed by Bobby‘s story. But those who
write about mass incarceration from a racial justice perspective should not avoid the questions it
raises. The attack terribly damaged Bobby‘s psyche. As educators who fervently believed that
studying hard was key to a better life for our students, we were haunted by the question: Why do
your best when it can all be taken away from you in mere seconds? Bobby pleads for
accountability; if he is not able to ―get back at our person‖ himself, he wants him arrested and
punished. It is this part of Bobby‘s plea, I suspect, that causes many of the New Jim Crow
writers to avoid the topic of violent crime. After all, won‘t discussing it simply reinforce the
case for more punitive crime policy?
But allowing ourselves to hear Bobby‘s painful story need not mandate ―harsh justice‖ as
a response.123 The New Jim Crow writers might have important contributions to make to this
debate. What does accountability mean? Bobby‘s assailant should surely be locked up, but for
how long? One in eleven American prisoners are serving life sentences, and about a third of
those sentences are life without parole.124 In what conditions? What might we have done to

122

This quotation is from an interview with Bobby in a documentary film about the See Forever
school‘s first year. INNOCENT UNTIL PROVEN GUILTY (Big Mouth Productions 1999).
123

See, e.g., JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING
DIVIDE BETWEEN AMERICA AND EUROPE (2003).
124

ASHLEY NELLIS & RYAN S. KING, THE SENTENCING PROJECT, NO EXIT: THE EXPANDING USE
OF LIFE SENTENCES IN AMERICA 3 (2009). As a result of longer sentences, the number of elderly
prisoners continues to grow, despite the fact that older prisoners cost more to incarcerate and are
less likely to offend if released. THE PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN
AMERICA 2008 12–13 (2008).
42

reduce the likelihood that Bobby would be attacked in the first place? 125 And what might we do
to reduce the likelihood that Bobby will retaliate against his assailant (―get back at our person‖)
or some future innocent party (―why can‘t I do that to anybody else, to anybody else, and not
care about it‖)? These are supremely difficult questions that I do not attempt to answer in this
Article.126 I raise them to highlight their importance and to suggest that, in focusing exclusively
on the drug war, the New Jim Crow writers take themselves out of a discussion to which they
might make important contributions.

VI. OBSCURING CLASS

In the previous section I argued that one of Jim Crow‘s defining characteristics was that it
treated similarly-situated blacks and whites differently, and that the New Jim Crow writers are
forced by the pressure of the analogy to find modern-day parallels. This leads them to limit their
inquiry to the War on Drugs and overlook violent crime. Jim Crow has another distinctive
characteristic that threatens to lead us astray when contemplating mass incarceration. Just as Jim
Crow treated similarly-situated blacks and whites differently, it treated differently-situated
blacks similarly. An essential quality of Jim Crow was its uniform and demeaning treatment of
all blacks. Jim Crow was designed to ensure the separation, disenfranchisement, and political
and economic subordination of all black Americans–young or old, rich or poor, educated or

While we don‘t know anything about the life of Bobby‘s assailant, the life histories of others
like him demonstrate that the state frequently squanders opportunities to intervene before
adolescents become murderers.
125

126

I have addressed these questions elsewhere. See, e.g., Domenici & Forman, supra note 7
(describing effort to improve educational programs for incarcerated youth in Washington, D.C.);
James Forman, Jr., Why Care About Mass Incarceration?, 108 MICH. L. REV. 993, 1006–09
(2010) (reviewing PAUL BUTLER, LET‘S GET FREE: A HIP-HOP THEORY OF JUSTICE (2009))
(arguing that prisons that treat prisoners well and offer effective programs serve public safety). I
return briefly to these themes in the Conclusion.
43

illiterate.
Indeed, one of the central motivations of Jim Crow was to render class distinctions within
the black community irrelevant, at least as far as whites were concerned. For this reason, it was
essential to subject blacks of all classes to Jim Crow‘s subordination and humiliation. That‘s
why Mississippi registrars prohibited blacks with Ph.Ds from voting, why lunch counters refused
to serve well-dressed college students from upstanding Negro families, and why, as Martin
Luther King, Jr. recounts in his ―Letter from Birmingham Jail,‖ even the most famous black
American of his time was not permitted to take his six-year-old daughter to the whites-only
amusement park she had just seen advertised on television.127
Analogizing mass incarceration to Jim Crow tends to suggest that something similar is at
work today. This may explain why many—but not all128—of the New Jim Crow writers
127

At this point in the letter, King was responding to those who counseled Negroes to slow down
in their quest for freedom. King‘s response, in part, was as follows:
I guess it is easy for those who have never felt the stinging darts of segregation to say
―wait.‖ But when you have seen vicious mobs lynch your mothers and fathers at will and
drown your sisters and brothers at whim; when you have seen hate-filled policemen
curse, kick, brutalize, and even kill your black brothers and sisters with impunity; when
you see the vast majority of your twenty million Negro brothers smothering in an airtight
cage of poverty in the midst of an affluent society; when you suddenly find your tongue
twisted and your speech stammering as you seek to explain to your six-year-old daughter
why she cannot go to the public amusement park that has just been advertised on
television, and see tears welling up in her little eyes when she is told that Funtown is
closed to colored children, and see the depressing clouds of inferiority begin to form in
her little mental sky . . . then you will understand why we find it difficult to wait.
Martin Luther King Jr., Letter from Birmingham Jail (originally published as The Negro
Is Your Brother) THE ATLANTIC MONTHLY, Aug. 1963, at 80.
128

Among the New Jim Crow writers, Wacquant was among the first to recognize that
incarceration most directly harms low-income, uneducated African-Americans Wacquant, Class,
Race, supra note 15, at 79 (―[T]he rapid ‗blackening‘ of the prison population even as serious
crime ‗whitened‘ is due exclusively to the astronomical increase in the incarceration rates of
lower-class African Americans.‖) (emphasis in original). Alexander also appreciates this point,
see infra note 148, at 232–34 (arguing that affirmative action has, to some extent, helped affluent
African-Americans while serving as an inadequate substitute for the more radical changes to the
economic and social structure needed to help poor African-American communities).
44

overlook the fact that mass incarceration does not impact middle- and upper-class educated
African-Americans in the same way as it impacts lower-income African-Americans.129 This is
an important oversight because one of mass incarceration‘s defining features is that, unlike Jim
Crow, its reach is largely confined to the poorest, least-educated segments of the AfricanAmerican community. High school dropouts account for most of the rise in African-American
incarceration rates. I noted earlier that a black man born in the 1960s is more likely to go to
prison in his lifetime than was one born in the 1940s. But this is not true for all AfricanAmerican men; those with college degrees have been spared. As Bruce Western‘s research
reveals, for an African-American man with some college education, the lifetime chance of going
to prison actually decreased slightly between 1979 and 1999 (from 6% to 5%).130 Consequently,
a black man born in the late 1960s who dropped out of high school has a 59% chance of going to
prison in his lifetime whereas a black man who attended college has only a 5% chance.131
Although we have too little reliable data about the class backgrounds of prisoners, what we do

129

See, e.g., Black, supra note 21, at 184–90 (discussing the racialization of the War on Drugs
without acknowledging how middle- and upper-class African-Americans are differently impacted
by the policies); Goldman, supra note 21, at 628–32 (discussing racial bias in the criminal justice
system in the era of mass incarceration without mentioning how the system differentially impacts
African Americans at different income and education levels); Nunn, supra note 94 at 387
(discussing the ways in which mass incarceration, resulting from the War on Drugs, is a war
against African-Americans as a whole, without noting any differential impact based on class);
Eric E. Sterling, Drug Laws and Thought Crime, 10 TEMP. POL. & CIV. RTS. L. REV. 327, 335–36
(2001) (concluding that the criminal justice system in America today is the new Jim Crow
without mentioning the impact of class distinctions). Even writers who understand the role of
class in distinguishing between whites and African-Americans fail to see the role that class plays
within the African-American community. See, e.g., Benjamin D. Steiner & Victor Argothy, White
Addiction: Racial Inequality, Racial Ideology, and the War on Drugs, 10 TEMP. POL. & CIV. RTS.
L. REV. 443 (2001)
130

WESTERN, supra note 2, at 27–28 fig.1.4. Western does not report whether the decrease is
statistically significant.
131

Id.
45

know suggests that class, educational attainment, and economic status are powerful indicators for
other races as well. Western estimates that for white men born in the late 1960s, the lifetime risk
of imprisonment is more than ten times higher for those who dropped out of high school than for
those who attended some amount of college.132
Government statistics confirm how few college graduates end up in prison. For example,
a 1997 federal survey—the most recent available—found that college graduates comprised 2.4%
of state prisoners throughout the country.133 By contrast, college graduates comprised 22% of
the population as a whole.134 In Massachusetts—the only state that routinely reports the
educational backgrounds of its prisoners—only 1% of state prisoners have college degrees.135
Income data reveal a similar skew—the majority of prisoners in state facilities earned less than
$10,000 in the year before entering prison.136
Class differences have always existed within the black community—but never on
anything approaching today‘s scale. On the one hand, large segments of the African-American
community are in extreme distress. Unemployment rates for young black men are high by any

132

The lifetime risk of incarceration for whites who dropped out of high school is 11.2%; for
those who attended college, it is only 0.7%. WESTERN, supra note 2, at 26–28.
CAROLINE WOLF HARLOW, U.S. DEP‘T OF JUSTICE, BUREAU OF JUSTICE STATISTICS,
EDUCATION AND CORRECTIONAL POPULATIONS 2 tbl.1 (2003). Federal prisoners were more
likely to have graduated from college, with 8% having degrees. Id.
133

134

Id.

RESEARCH AND PLANNING DIV., MASS. DEP‘T OF CORRECTIONS, JANUARY 1, 2009 INMATE
STATISTICS 22 tbl.22 (2009).
135

ALLEN BECK ET AL., U.S. DEP‘T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SURVEY OF
STATE PRISON INMATES, 1991, at 3 (1993).
136

46

measure, even more so if we factor in incarceration rates.137 In some respects, blacks are no
better off than they were in the 1960s, and in others (e.g., proportion of children born to
unmarried women)138 they are much worse off. Yet the black middle-class has expanded
dramatically—and to be clear, I‘m not talking about the handful of black super-elites. Too many
discussions of class differences within the black community adopt a posture of ―Obama and
Oprah on the one hand, the rest of us on the other.‖ But that overlooks an important part of the
story: the substantial growth of the true middle-class.
Consider that in 1967 only 2% of black households earned more than $100,000; today,
10% of black families earn that amount.139 Going down the income scale from upper-middleclass to middle-class, we also see robust growth. Since 1967, the percentage of black households
earning more than $75,000 a year has more than tripled, from 5% to 18% today. The percentage
earning $50,000 or more a year has doubled—from 17% in 1967 to 33% today. But the
percentages alone don‘t tell the whole story; it is important to appreciate the sheer numbers of
African-Americans who have earned the perks of middle-class American existence. By 2009,
there were 2.65 million African-American households in the upper end of the middle-class
range—i.e., earning more than $75,000 a year. The educational attainment numbers reveal a
similar pattern. In 1967, 4% of the black population over the age of 25 had a four-year college

137

WESTERN, supra note 2, at 90–91 (estimating that joblessness among young black men has
increased from 27% in 1980 to 32.4% in 2000 once incarceration rates are included).
138

WILLIAM JULIUS WILSON, MORE THAN JUST RACE 100–05 (2009) (discussing rise in
percentage of black children born to unmarried women and documenting how this disadvantages
black children).
139

All figures in this paragraph reflect inflation-adjusted dollars and are derived from CARMEN
DENAVAS-WALT ET AL., U.S. DEP‘T OF COMMERCE, P60-238, INCOME, POVERTY, AND HEALTH
INSURANCE COVERAGE IN THE UNITED STATES: 2009 36–37 tbl.A-1 (2010).
47

degree; today, 20% do.140
Changes of this magnitude require us to modify how we discuss race. Historically, racial
justice advocates have been reluctant to acknowledge how class privilege mitigates racial
disadvantage. This reluctance is partly a byproduct of the structure of the affirmative action
argument. One of the most potent arguments against race-based preferences is the claim that
wealthier blacks do not deserve them.141 Affirmative action‘s defenders often respond by
pointing out the various ways in which even privileged blacks suffer racial discrimination.142 At
the same time, racial profiling reinforces the notion that class differences within the black
community matter little. After all, racial profiling is the area in which skin color routinely
trumps one‘s bank account or accumulated graduate degrees. As David Harris argues, ―‗driving
while black‘ is not only an experience of the young black male, or those blacks at the bottom of
the socio-economic ladder. All blacks confront the issue directly, regardless of age, dress,
occupation or social station.‖143
But as I have shown, Harris‘s argument does not apply with equal force to incarceration.
Here, increased income and educational attainment can bring a measure of protection against
some of the criminal justice system‘s historic anti-black tendencies. Accordingly, in considering
140

U.S. CENSUS BUREAU, CPS HISTORICAL TIME SERIES, TABLE A-2: PERCENT OF PEOPLE 25
YEARS AND OVER WHO HAVE COMPLETED HIGH SCHOOL OR COLLEGE, BY RACE, HISPANIC
ORIGIN AND SEX: SELECTED YEARS 1940 TO 2010 (2010),
http://www.census.gov/hhes/socdemo/education/data/cps/historical/index.html.
141

See, e.g. Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68
U. COLO. L. REV. 939, 939 (1997) (noting that ―one of the flaws of race-based affirmative action
is that its main beneficiaries are economically privileged members of the eligible minority
groups‖).
Id. at 967–88 (noting that ―the lingering effects of past discriminating suppress the economic
performance of the black middle class‖).
142

David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters,
84 MINN. L. REV. 265, 269 n.18 (1999).
143

48

mass incarceration, any suggestion that blacks across classes stand similarly-situated in the face
of American racism should be abandoned. Malcolm X‘s assertion that a black man with a Ph.D.
is still a ―nigger‖ made sense in the context of Jim Crow .144 So did its equivalent in the legal
literature. As Mari Matsuda argued, ―[v]ictims necessarily think of themselves as a group,
because they are treated and survive as a group. The wealthy black person still comes up against
the color line. The educated Japanese still comes up against the assumption of Asian
inferiority.‖145 In support of her claim, Matsuda pointed out that Japanese Americans across
classes all shared a similar fate in internment camps during World War II.146 But prisons, as we
have seen, are precisely the opposite of internment camps in this regard. Scholars concerned
with race cannot explore the significance of this reversal until they first acknowledge it—and
many still do not.147
For the most part, Wacquant and Alexander avoid this trap. In The New Jim Crow,
Alexander reminds us again and again that the primary targets of mass incarceration are poor,
uneducated blacks. Moreover, she assails the civil rights establishment for focusing its energies
on policies that advance the interests of middle-class blacks—such as affirmative action—while
overlooking the crisis that mass incarceration represents for the urban poor.148 Yet, despite her

144

ALEX HALEY & MALCOLM X, THE AUTOBIOGRAPHY OF MALCOLM X 310 (1964) (recounting
a conversation in which he asked a black associate professor, ―‗Do you know what white racists
call black Ph.D.‘s?‘ . . . ‗Nigger!‘‖).
145

Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV.
C.R.-C.L. L. REV. 323, 376 (1987).
146

Id. at 376 n.222.

147

See supra note 129 and accompanying text (noting instances where other authors failed to
acknowledge the importance of class when discussing mass incarceration).
148

As Alexander puts it:
49

awareness, Alexander sometimes allows the analogy, and the attendant pressure to find
continuity while denying the reality of change, to obscure this insight. For example, Alexander
suggests that perhaps ―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.‖149
Specifically, she says, ―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.‖150
This claim reflects the limitations of the Jim Crow analogy. Today nothing ―defines the
meaning of blackness in America.‖ In Mississippi in 1950, the totalizing nature of Jim Crow
ensured that to be black meant to be second-class; there were no blacks free of its strictures. But
mass incarceration is much less totalizing. In 2011, no institution can define what it ―means to
be black‖ in the way that Jim Crow or slavery once did.

VII. OBSCURING RACE

The Jim Crow analogy also obscures the extent to which whites, too, are mass
incarceration‘s targets. Since whites were not direct victims of Jim Crow, it should come as little

Try telling a sixteen-year-old black youth in Louisiana who is facing a decade in adult
prison and a lifetime of social, political, and economic exclusion that your civil rights
organization is not doing much to end the War on Drugs—but would he like to hear about
all the great things that are being done to save affirmative action? There is a fundamental
disconnect today between the world of civil rights advocacy and the reality facing those
trapped in the new racial undercaste.
ALEXANDER, supra note 22, at 234.
149

Id. at 192.

150

Id.
50

surprise that whites do not figure prominently in the New Jim Crow writers‘ accounts of mass
incarceration. Most who invoke the analogy simply ignore white prisoners entirely.151
Alexander mentions them only in passing; she says that mass imprisonment‘s true targets are
blacks, and that incarcerated whites are ―collateral damage.‖152
Many whites—most of them poor and uneducated—are now behind bars. One-third of
our nation‘s prisoners are white,153 and incarceration rates have risen steadily even in states
where most inmates are white.154 That‘s a lot of ―collateral damage.‖ Those white prisoners are
sometimes subjected to ghastly mistreatment, as an ACLU attorney recently alleged in a lawsuit
challenging conditions of confinement in a prison in Idaho, where 77% of the prisoners in state
facilities are white.155 He reported: ―In my 39 years of suing prisons and jails, I have never
confronted a more disgraceful, revolting and inexcusable case of mass abuse and federal rights
violations than this one.‖156 For some categories of offenses where our laws are especially
severe, such as possession of child pornography, most of the defendants are middle-aged white

151

See, e.g., Black, supra note 21, at 178 (discussing New Jim Crow analogy while ignoring
whites); Kennedy, supra note 21, at 505–06 (same); Roberts, supra note 21, at 263 (same);
Tyson, supra note 21, at 348–49 (same).
152

ALEXANDER, supra note 22, at 202.

153

SABOL ET AL., supra note 1, at 2 (in 2008, 33% of prisoners were white).

154

Compare CAHALAN, supra note 4, at 29 tbl.3-2, with HEATHER C. WEST & WILLIAM J. SABOL,
U.S. DEP‘T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2008, at
3 tbl.2 (2009).
IDAHO DEP‘T OF CORRECTION, ANNUAL STATISTICAL REPORT: FISCAL YEAR 2010, at 7
(2010).
155

156

Press Release, American Civil Liberties Union, ACLU Lawsuit Charges Idaho Prison Officials
Promote Rampant Violence (Mar. 11, 2010), available at http://www.aclu.org/prisonersrights/aclu-lawsuit-charges-idaho-prison-officials-promote-rampant-violence (quoting ACLU
senior staff attorney Stephen Pevar).
51

men.157 Prosecutions for sexually explicit material offenses have risen by more than 400% since
1996.158 In addition to the dramatic rise in the number of cases filed, the sentences imposed for
all child pornography-related offenses have become increasingly severe, rising from an average
of 2.4 years in 1996 to almost 10 years in 2008.159 Moreover, although whites remain relatively
underrepresented as drug offenders, the percentage of drug offenders who are white has risen

157

JANIS WOLAK, KIMBERLY MITCHELL & DAVID FINKELHOR, CRIMES AGAINST CHILDREN
RESEARCH CTR., INTERNET SEX CRIMES AGAINST MINORS: THE RESPONSE OF LAW
ENFORCEMENT viii (2003) (a study sponsored by the Department of Justice reporting that the
―vast majority of [Internet sex-crime] offenders were non-Hispanic White males older than 25
who were acting alone‖); Loren Rigsby, A Call for Judicial Scrutiny: How Increased Judicial
Discretion Has Led To Disparity and Unpredictability in Federal Sentencings for Child
Pornography, 33 SEATTLE U. L. REV. 1319, 1333–34 (2010) (explaining that 85.6% of child
pornography defendants are white, and that these defendants are, on average, much older and
more educated than the majority of defendants in federal prosecutions); Peggy O‘Hare, Waging
the war on child porn / Prosecutors enlist help to track abusers, halt Web images, HOUS.
CHRON., Dec. 2, 2007, at A1, A15 (―The Chronicle‘s research revealed almost all those charged
with the offense in the greater Houston area between Jan. 1, 2004, and May 31, 2007, were white
men, half of them middle-aged or older.‖).
158

See JAMES C. DUFF, ADMINISTRATIVE OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF
THE UNITED STATES COURTS: 2007 ANNUAL REPORT OF THE DIRECTOR 27 (2007) (discussing
increase after the Child Pornography Prevention Act of 1996, which criminalized the creation of
child pornography using new technologies).
U.S. SENTENCING COMM‘N, ANN. REP. SOURCEBOOK, 29 tbl.13, 39 tbl.17 (2008); Rigsby,
supra note 157, at 1331. Over the past fifteen years, the punishment for possession of child
pornography has increased and become more complicated through congressional action and
changes to the Sentencing Guidelines. Currently, the mandatory minimum for a charge of
possession of child pornography is five years. 18 U.S.C.A. § 2252A(b)(1) (Supp. 2011).
However, in the vast majority of cases, this sentence is increased through Sentencing Guideline §
2G2.2‘s aggravating factors, which include use involving a computer, possession involving large
numbers of images, and use involving material portraying sadistic or masochistic conduct or
violence. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 (2008). Commentators have been
critical of these increases, as have been district courts, which imposed sentences below the
Sentencing Guidelines‘ suggested length in 43% of cases in 2009. Lynn Adelman & Jon Deitrich,
Improving the Guidelines Through Critical Evaluation: An Important New Role for District
Courts, 57 DRAKE L. REV. 575, 584–85 (2009); Jelani Jefferson Exum, Making the Punishment
Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child
Pornography Offenses, 16 RICH. J.L. & TECH. 8, 14–15 (2010); Jesse P. Basbaum, Note,
Inequitable Sentencing for Possession of Child Pornography: A Failure To Distinguish Voyeurs
from Pederasts, 61 HASTINGS L.J. 1281 (2010); John Gabriel Woodlee, Note, Congressional
Manipulation of the Sentencing Guideline for Child Pornography Possession: An Argument For
or Against Deference?, 60 DUKE L.J. 1015, 1016 (2011).
159

52

since 1999, while the percentage of drug offenders who are black has declined.160
Hispanic161 prisoners also receive little attention from the New Jim Crow writers, even
though they constitute twenty percent of American prisoners.162 The fact that quality data on
Hispanics in the prison systems is often lacking may be partly to blame for this omission.163 But
it is important to remember that during the Jim Crow years, Hispanics in many jurisdictions were
subject to forms of exclusion, segregation, and disenfranchisement not unlike those inflicted on
African-Americans.164 And given what we do know about current Hispanic incarceration rates,

160

From 1999 to 2005, the number of blacks serving time for drug offenses in state prisons
declined by more than 31,000, while the number of whites serving time for drug offenses
increased by slightly more than 20,000. As a result, whereas African-Americans had constituted
58% of those serving time in state prisons for drug offenses in 1999, by 2005 that number had
fallen to 45%. MARC MAUER, THE SENTENCING PROJECT, THE CHANGING RACIAL DYNAMICS
OF THE WAR ON DRUGS 5 (2009). Blacks remain overrepresented, of course, but the scale of this
overrepresentation has diminished.
The Bureau of Justice Statistics (BJS) uses the term ―Hispanic‖ rather than ―Latino.‖ For the
sake of consistency, I use the term Hispanic to follow BJS terminology.
161

Alexander, to her credit, acknowledges this omission, noting that ―relatively little is said here
about the unique experience of women, Latinos, and immigrants in the criminal justice system,
though these groups are particularly vulnerable to the worst abuses and suffer in ways that are
important and distinct.‖ ALEXANDER, supra note 22, at 15–16.
162

163

MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, UNEVEN JUSTICE: STATE RATES
OF INCARCERATION BY RACE AND ETHNICITY 12 n.14 (July 2007) (―Reporting on Hispanics in
the criminal justice system has been limited and often inaccurate over many years, as evidenced
by the fact that 11 states in this analysis do not provide any data on Hispanic inmates.‖); Damian
J. Martinez, Felony Disenfranchisement and Voting Participation: Considerations in Latino ExPrisoner Reentry, 36 COLUM. HUM. RTS. L. REV. 217, 222 (2004) (―[G]overnmentally-collected
criminal justice data during the 1980s and 1990s lumped incarcerated Latinos into the racial
classifications of whites and African Americans.‖); id. at 223–24 (noting that even the category
Latino is overbroad, and encouraging researchers to focus on differences between Latino subgroups).
164

Some of the early important cases challenging segregation involved Hispanics. See, e.g.,
Hernandez v. Texas, 347 U.S. 475 (1954) (striking down Jim Crow jury practices that excluded
Mexican-Americans from juries); Mendez v. Westminister Sch. Dist., 64 F. Supp. 544 (C.D. Cal.
1946) aff‟d, 161 F.2d 774 (9th Cir. 1947) (en banc) (striking down segregation of Mexican and
Mexican-American students); see also Ian Haney López & Michael A. Olivas, Jim Crow,
Mexican-Americans and the Anti-Subordination Constitution: The Story of Hernandez v. Texas,
in RACE LAW STORIES 273 (Rachel F. Moran & Devon W. Corbado, eds. 2008) (discussing the
53

it is clear that Hispanic prisoners deserve the attention of all who write about the prison system.
The Hispanic prison population climbed steadily during the 1990s, to the point where one in six
Hispanic males born today can expect to go to prison in their lifetime.165 The available data
suggest that Hispanic incarceration rates are almost double the rates for whites, and many
observers believe that these data undercount the true rate at which Hispanics go to prison.166
Most Hispanic prisoners, like most blacks and whites, are serving time for violent offenses, and
about twenty percent are in prison for drug offenses.167
Thus, the data on white and Hispanics prisoners reminds us that while African-Americans
are incarcerated in numbers grossly disproportionate to their percentage of the overall
population, the fact remains that sixty percent of prisoners are not African-American. As I will
argue in the conclusion, anyone analyzing mass incarceration must keep that sixty percent
squarely in mind.

VIII.

OBSCURING HISTORY: THE OLD JIM CROW

Having analyzed the Jim Crow analogy‘s impact on discussions of modern crime and
penal policy, I will now evaluate how the analogy influences our understanding of the past.
Specifically, I want to explore whether, by invoking the Jim Crow era in an effort to highlight
the injustice of mass incarceration, the New Jim Crow writers end up diminishing our collective
memory of the old Jim Crow. My fear is that writers seeking to establish parallels between the
role of Hernandez v. Texas as civil rights ruling by the Warren Court, taking place before Brown
v. Board of Education).
165

MAUER & KING, supra note 163, at 2.

166

MAUER & KING, supra note 163, at 3, 12 n.14; Martinez, supra note 163 at 222 (suggesting
that poorly collected data contributes to inaccurate and undercounting Latinos).
167

Martinez, supra note 163, at 222, 224–25.
54

old Jim Crow and mass incarceration overlook (or underemphasize) important aspects of what
made the old Jim Crow so horrible.
The New Jim Crow writers devote little attention to the old Jim Crow.168 The choice to
say so little is understandable. After all, most people know what Jim Crow was, and the point of
these contributions is to tell people a story they do not know—the one about mass incarceration.
But I suspect something else is at work as well. In the interest of drawing the parallels between
Jim Crow and mass incarceration as tightly as possible, the New Jim Crow writers typically
avoid dwelling on the aspects of the old Jim Crow that have fewer modern parallels. As a result,
much that matters is lost.169
For now, let me focus on one area in particular: the brutal, unremitting violence upon
which Jim Crow depended. My generation of African-Americans, fortunately, has no personal
experience with this regime. But many of us have experienced its legacy. I confronted this
history personally, and unexpectedly, through my father.
It was 1984, the summer before I entered Brown University. My parents had divorced
when I was young, and my dad‘s idea of a good father-son bonding experience was to attend the
Democratic National Convention in San Francisco and then drive together to Atlanta, where I
Buckman and Lamberth, for example, invoke the term ―Jim Crow‖ but do not define it.
Buckman & Lamberth, supra note 10, at 14. Glasser offers only this: ―Jim Crow laws enforced a
rigid system of segregation following the Civil War and the Reconstruction Era.‖ Glasser, supra
note 12, at 703 n.2. Alexander and Wacquant have the most to say about it, but even their
treatment is brief—ten pages of a 208-page book for Alexander and two pages of an essay for
Wacquant. ALEXANDER, supra note 22, at 30–40; Loïc Wacquant, Deadly Symbiosis: When
ghetto and prison meet and mesh, in MASS IMPRISONMENT: SOCIAL CAUSES AND
CONSEQUENCES 1, 1–2 (David Garland ed., 2001); Wacquant, supra note 16, at 87–88. One
important exception is ROBERT PERKINSON, TEXAS TOUGH: THE RISE OF AMERICA‘S PRISON
EMPIRE 1, 477, 481 (2010).
168

169

I acknowledge that there is an alternative view. Perhaps the New Jim Crow analogy will
instead serve to reinforce our memory of that regime. The analogy has the following structure: ―X
was awful, and Y is a lot like X.‖ Perhaps this necessarily reaffirms that X (here, Jim Crow) was
terrible, even if the proponents of the analogy spend little time arguing the point.
55

lived with my mom. From California to Texas, we mostly rehashed our ongoing political
argument: he supported Walter Mondale and thought it was nuts that I was drawn to Jesse
Jackson. As we approached Louisiana on I-20, his mood began to change. He grew tense and
withdrawn. After looking at the speedometer—I was driving 65 in a 55 zone, as I had done the
whole trip—he told me to slow down because ―we don‘t want to get stopped around here.‖ I
knew of course that he had grown up in Mississippi and Chicago and had been part of the
southern civil rights movement. I was raised with the stories—Emmett Till, Chaney, Goodman
and Schwerner—and always the reminder that ―those are just the ones people remember.‖170
But the good guys had won in the end, right?
I wanted to stop and call my mom to let her know how long it would be until we reached
Atlanta. My dad told me we could only stop at a Howard Johnson‘s, a Motel 6, or an Amoco.
Moreover, we could only stop once we were in a city. ―It can wait until we get to Jackson,‖ he
said. ―That‘s stupid,‖ I replied. ―It will be late then. Why wake her?‖ Seventeen years old and
headstrong, I turned off at an exit in Mississippi and pulled over at a rundown gas station. A
man was behind the counter and another was filling his tank near us. I went to the phone booth
while my dad kept watch, peering out into the Mississippi night. I was placing the collect call
with the operator when every light in the gas station went out. It was pitch black. My dad hit the
headlights and turned the ignition. He screamed, ―Get in the car! Now!‖ I dropped the phone
and ran to the car while he leaned on the horn.

170

See generally SETH CAGIN & PHILIP DRAY, WE ARE NOT AFRAID: THE STORY OF GOODMAN,
SCHWERNER, AND CHANEY AND THE CIVIL RIGHTS CAMPAIGN FOR MISSISSIPPI (1988)
(discussing the untimely death of three young civil rights workers who were murdered shortly
after traveling to Mississippi to organize voter registration drive); STEPHEN J. WHITFIELD, A
DEATH IN THE DELTA: THE STORY OF EMMETT TILL (1988) (documenting the life and murder of
a 15-year old African-American boy who was killed for whistling at a white woman while
visiting family in Mississippi).
56

We never discussed what happened that day. In my mind, though, I was sure I was
right—sure that, in 1984, black people didn‘t get attacked for no reason at a gas station just off
the interstate. Not even in Mississippi. But I was equally sure that this wasn‘t really the point,
or at least not the main point. After more than twenty-five years (plus a substantial motive to
repress memories of the incident), the details are a little blurry,171 but I still remember clearly the
look on my dad‘s face when I returned to the car and got on the highway. He was terrified in a
way that I had never seen. I cried myself to sleep that night, in a Howard Johnson‘s near
downtown Jackson. I was overwhelmed with a boy‘s shame at watching his father laid low, and
the double burden of knowing that I had helped bring it about.
What could do this to my father? The old Jim Crow. The Jim Crow of public torture
lynchings, in which a white man could, while on his lunch break, see a black man lynched, buy a
postcard with a photo of the dangling body, and send it via regular U.S. mail to a friend with this
note:
―Well John—This is a token of a great day we had in Dallas, March 3rd [1910], a negro
was hung for an assault on a three year old girl. I saw this on my noon hour. I was very
much in the bunch. You can see the Negro hanging on a telephone pole.‖172
The old Jim Crow was the one that gave the U.S. Supreme Court cause to review convictions
like those in Brown v. Mississippi.173 In that case, the Mississippi Supreme Court had affirmed
convictions despite the fact that the black suspects were:
[M]ade to strip and they were laid over chairs and their backs were cut to pieces
171

Not long after this incident I was interviewed for a magazine story on the children of civil
rights leaders. I related the incident then, and have relied on the article to establish some of the
particulars. Seth Cagin, Children of Radicals, ROLLING STONE, Sept. 26, 1985, at 91, 95.
172

David Garland, Penal Excess and Surplus Meaning: Public Torture Lynchings in TwentiethCentury America, 39 LAW & SOC‘Y REV. 793, 794 (2005).
173

297 U.S. 278 (1936).
57

with a leather strap with buckles on it, and they were likewise made . . . to
understand that the whipping would be continued unless and until they confessed,
and not only confessed, but confessed in every matter of detail as demanded by
those present; and in this manner the defendants confessed the crime, and as the
whippings progressed and were repeated, they changed or adjusted their
confession in all particulars of detail so as to conform to the demands of their
torturers.174
That was Jim Crow—the memories of which so utterly traumatized so many of our
parents and grandparents‘ generations. This does not mean analogies may never be drawn, but it
does require that they be drawn with care. Otherwise, they threaten to further erase our dimming
collective memory of the old Jim Crow.

CONCLUSION

The Jim Crow analogy helps us see the toll that mass incarceration has taken on
America‘s black communities, but in doing so, it obscures other aspects of mass
incarceration. Among other claims, I have pointed out that although mass incarceration is a
black issue, it is more than just that. After all, more than six out of ten people in U.S. prisons
are not African-American. And although it is a drug issue, it is much more than that. Drug
offenders make up only 25% of our prison population.
I conclude by briefly indicating a way forward. What follows is not intended as a set
of policy prescriptions; instead, I offer three themes that must remain central if we are to
scale back our prison system and reduce the damage that incarceration causes. In offering
these ideas I want to reiterate that, despite the critique offered in this Article, I share much
common ground with the New Jim Crow writers. Without papering over the analytic and

174

Id. at 282.
58

strategic differences that exist between us, these concluding pages seek to clarify how closely
my goals overlap with those of the writers I have discussed throughout the piece.
First, combating mass incarceration will require a multiracial movement. Some of the
New Jim Crow writers understand this, yet they do not appreciate the extent to which the Jim
Crow analogy pushes non-black prisoners to the margins. 175 The Jim Crow claim is, at the
end of the day, an appeal to the base—a metaphor with great potential to mobilize blacks and
racial justice advocates to care about mass incarceration. But it comes at a cost—namely, the
analogy does not encourage other racial groups to recognize that, on this issue, black interests
coincide with their own.176 As Darren Hutchinson has argued, framing issues in terms of
black and white discourages other racial minorities from engaging in coalition politics.177 A
similar point applies here: If whites and Hispanics disappear from view in discussions of
mass incarceration, they are less likely to see a campaign against it as speaking to and for

175

For example, Alexander writes:

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 anti-black racism—a fact that, until now, has been difficult for many to
grasp.
ALEXANDER, supra note 22, at 202.
176

Cf. Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma,
93 HARV. L. REV. 518, 523 (1980) (arguing that the law will change to serve black interests only
when black interests align with those of whites).
177

Darren Lenard Hutchinson, Critical Race Histories: In and Out, 53 AM. U. L. REV. 1187, 1200
(2004) (―The black/white paradigm also prevents persons of color from engaging in coalition
politics. By treating racism as a problem that affects blacks primarily (or exclusively), racial
discourse in the United States divides persons of color who could align to create formidable
political forces in the battle for racial justice.‖).
59

them. This is a missed opportunity—especially now, when fiscal considerations could
motivate large numbers of voters to demand reductions in our bloated prison system.178
Second, an effective response to mass incarceration requires that moral appeals on
behalf of mass incarceration‘s direct targets be combined with broader arguments on behalf
of community safety. In questioning the New Jim Crow writers‘ account of the origins of
mass incarceration,179 I have suggested that some of those who push for tough-on-crime
laws, and many of those who support them, do so out of a real concern about safety. To be
clear, I hardly think this is the only motivation: The New Jim Crow writers make a powerful
case that racial animus and indifference play a role as well.180 But a substantial number of
Americans care primarily about being able to walk home without being mugged or seeing
drug sellers lurking on the corner. Progressives should acknowledge such concerns and
make the case that mass incarceration is detrimental to community safety, rather than
necessary to secure it.
The good news is that such a case can be made. In the past decade, even as the
nation‘s prison population has grown, four states have reduced their prison populations while

178

See Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276,
1285–90 (2005) (noting that budgetary concerns have driven recent state sentencing reforms);
Charlie Savage, Trend To Lighten Harsh Sentences Catches On in Conservative States, N.Y.
TIMES, Aug. 13, 2011, at A14 (describing state penal reforms motivated by cost-cutting
considerations).
179

For example in Part III, I criticized the New Jim Crow writers for advancing a reductionist
view of the history of mass incarceration, in which tough-on-crime laws are nothing more than
the results of opportunistic politicians pandering to racist voters. In Part IV, I pointed out that
even Washington, D.C., with black leaders and a majority-black voting population, has adopted
policies that produce sky-high incarceration rates.
See supra Part II and accompanying notes (discussing the relevance of the ―New Jim Crow‖
analogy as a method of conveying the disproportionate burden borne by low-income AfricanAmerican communities under modern mass incarceration).
180

60

also cutting crime.181 New York City‘s success in lowering crime rates has been widely
chronicled, but new research by Franklin Zimring reveals a less well-known fact: New York
reduced crime while also reducing the number of residents sent to prison.182 In the short
term, such a policy change requires pulling various criminal justice levers—for example,
expanding alternatives to incarceration, reducing the time served in prison, reducing parole
revocations, and making better use of probation resources.183 Over the longer term, it
requires human capital investments of the sort that both the New Jim Crow writers and I
endorse.
Chief among these investments is investment in education. As I discussed in Part VI,
there is a close connection between incarceration rates and educational attainment: Blacks
and whites who have dropped out of high school are ten times more likely to be incarcerated
than those who attend college.184 While correlation is not causation, these facts are

181

See JUDITH GREENE & MARC MAUER, DOWNSCALING PRISONS: LESSONS FROM FOUR STATES
60 (2010), available at http://www.sentencingproject.org/doc/publications/publications/
inc_DownscalingPrisons2010.pdf. (detailing reductions in state prison populations obtained by
Kansas, New York, Michigan, and New Jersey respectively during the late 1990s and 2000s).
182

The Decline in Crime in New York City (1990–2010), VERA INSTITUTE OF JUSTICE (Oct. 29,
2010), http://www.vera.org/videos/franklin-zimring-decline-crime-new-york-city.
183

See MARK A. R. KLEIMAN, WHEN BRUTE FORCE FAILS: HOW TO HAVE LESS CRIME AND
LESS PUNISHMENT 175–84 (2009) (providing recommendations for proven and promising crime
control strategies that involve policing, sentencing, probation, and corrections reform); see also
Andrew V. Papachristos, Tracey L. Meares & Jeffrey Fagan, Attention Felons: Evaluating
Project Safe Neighborhoods In Chicago, at 2, 9–13 (Univ. of Chicago, Olin Law & Econ. Paper
No. 269, Columbia Univ. Law Sch., Public Law & Legal Theory Research Paper Series, Paper
No. 05-97), available at http://ssrn.com/abstract=860685 (discussing Chicago‘s Project Safe
Neighborhoods, which reduced homicide rates by 35% in targeted neighborhoods).
184

See supra notes 130-132 and accompanying text (listing differences in incarceration rates
among African-American men who are college-educated and high school dropouts and whites
who are college-educated and high school dropouts).
61

suggestive evidence that appropriate educational (and other social-service) interventions may
be, in addition to their other benefits, crime-fighting measures.185
Third, an effective response to mass incarceration requires increased attention to how
we treat prisoners. Even if the movement to challenge mass incarceration is ultimately
successful, America will continue to have an enormous system of prisons and jails for a long
time to come. And even if our prison population shrinks substantially, some people will
always need to be locked up—hence the urgency of attending to the conditions in which
prisoners are held.
Prison conditions receive too little attention among mass incarceration‘s critics,
including the New Jim Crow writers. It is difficult to say why this is so, but at least for the
New Jim Crow writers, the explanation may lie in their focus on the War on Drugs.186 After
all, a strong case can be made that drug offenders (especially drug users, who receive the
bulk of the New Jim Crow writers‘ attention) should not be incarcerated at all. Having
framed the issue in this way, these writers may feel less compelled to focus on improving
prison conditions.
Whatever the reasons for the oversight, it must be remedied: how we treat those we
incarcerate is a critical front in the battle against mass incarceration. Consider Brown v.
Plata, in which the Supreme Court recently ruled that California must reduce its prison
population in order to mitigate the unconstitutional harms associated with overcrowding.187

185

See KLEIMAN, supra note 183, at 188–89 (2009) (offering recommendations for effective
social-service and other nonpunitive anti-crime measures).
186

See supra notes 93-95 and accompanying text (describing tendency among New Jim Crow
writers to focus on drug crimes and ignore violent crimes when discussing mass incarceration).
187

Brown v. Plata, No. 09-1233, slip op. at 1–4 (U.S. May 23, 2011).
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The lower court, in finding for the plaintiffs, had warned that ―the state‘s continued failure to
address the severe crowding in California‘s prisons would perpetuate a criminogenic prison
system that itself threatens public safety.‖188 Justice Kennedy recognized that concern in his
majority opinion, quoting then-Governor Schwarzenegger‘s acknowledgement that
overcrowding ―increases recidivism,‖ as well as the acting secretary of the California prison
system, who testified that she ―absolutely believe[s] that we make people worse, and that we
are not meeting public safety by the way we treat people.‖189 The record in Plata clearly
illustrates that prison conditions are not only a prisoners‘ rights issue, 190 but are also a crime
prevention issue. Most prisoners, after all, are serving time for violent offenses. And even
with longer prison sentences, the vast majority of American prisoners will be released
eventually.191 So we face a choice: Will we take individuals whom we have judged unfit for
life in the free world, expose them to further violence, destabilize them psychologically, and
deny them treatment for addiction, trauma, and mental illness? Or will we attempt to create a
system of support and rehabilitation for the incarcerated? For their sake, and our own, the
answer seems clear.

188

Coleman v. Schwarzenegger, No. CIV S-90-0520, at 132 (E.D. Cal. Aug. 4, 2009).

189

Brown v. Plata, No. 09-1233, slip op. at 38 (U.S. May 23, 2011).

190

See generally Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84
N.Y.U. L. REV. 881, 911–23 (2009) (arguing that the state‘s ―carceral burden‖ includes an
affirmative obligation to protect prisoners from serious physical and psychological harm).
See TIMOTHY A. HUGHES & DORIS JAMES WILSON, U.S. DEP‘T OF JUSTICE, BUREAU OF
JUSTICE STATISTICS, REENTRY TRENDS IN THE UNITED STATES (2002)
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1138. (noting that over 95% of state
prisoners will be released eventually); MARK MOTIVANS & STEVEN K. SMITH, U.S. DEP‘T OF
JUSTICE, BUREAU OF JUSTICE STATISTICS, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2004,
at 75 (2006) (noting that only 1% of federal prisoners receive life without parole or death
sentences and that among the other 99% of federal prisoners the average sentence is 60 months in
prison).
191

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