The Irrational Race Bias of the Criminal Justice and Prison Systems
This interview with Michelle Alexander is re-posted from ZNet.
Mark Karlin: Before we get into the details, is it accurate to characterize your thesis, in a colloquial way, by saying that institutionalized racial casting is alive and even ratcheting up in the United States in 2012?
Michelle Alexander: Yes, I do believe that something akin to a racial caste system is alive and well in America. For reasons that have stunningly little to do with crime or crime rates, we, as a nation, have chosen to lock up more than two million people behind bars. Millions more are on probation or parole, or branded felons for life and thus locked into a permanent second-class status. The mass incarceration of poor people of color, particularly black men, has emerged as a new caste system, one specifically designed to address the social, economic, and political challenges of our time. It is, in my view, the moral equivalent of Jim Crow.
MK: You identify the key societal perpetuation of the stigmatization of the black male as the so-called “criminal justice system.” It appears to have become an accepted bureaucratic injustice.
MA: Mass incarceration has become normalized in the United States. Poor folks of color are shuttled from decrepit, underfunded schools to brand new, high tech prisons and then relegated to a permanent undercaste – stigmatized as undeserving of any moral care or concern. Black men in ghetto communities (and many who live in middle class communities) are targeted by the police at early ages, often before they’re old enough to vote. They’re routinely stopped, frisked, and searched without reasonable suspicion or probable cause. Eventually they’re arrested, whether they’ve committed any serious crime or not, and branded criminals or felons for life. Upon release, they’re ushered into a parallel social universe in which the civil and human rights supposedly won during the Civil Rights Movement no longer apply to them. For the rest of their lives, they can be denied the right to vote, automatically excluded from juries, and legally discriminated against in employment, housing, access to education and public benefits. So many of the old forms of discrimination that we supposedly left behind during the Jim Crow era are suddenly legal again once you’ve been branded a felon. That’s why I say we haven’t ended racial caste in America; we have merely redesigned it. In many large urban areas, the majority of working age African American men now have criminal records and are thus subject to legalized discrimination for the rest of their lives. It is viewed as “normal” in ghetto communities to go to prison or jail. One study conducted in Washington, D.C. indicated that 3 out of 4 black men, and nearly all those living in the poorest neighborhoods could expect to find themselves behind bars at some point in their life. Nationwide, 1 in 3 black men can expect to serve time behind bars, but the rates are far higher in segregated and impoverished black communities. A massive new penal system has emerged in the past few decades – a penal system unprecedented in world history. It is a system driven almost entirely by race and class.
MK: How fast has our prison incarceration rate grown and to what extent does the growth correlate with the arrest of black males for nonviolent offenses? Doesn’t the US have the largest incarceration rate in the world?
MA: The United States does have the highest rate of incarceration in the world dwarfing the rates of even highly repressive regimes like Russia, China or Iran. This reflects a radical shift in criminal justice policy, a stunning development that virtually no one – not even the best criminologists – predicted forty years ago. Our prison population quintupled in a thirty year period of time. Not doubled or tripled – quintupled. We went from a prison and jail population of about 300,000 to now more than 2 million. Most people seem to assume that this dramatic surge in imprisonment was due to a corresponding surge in crime, particularly violent crime. But that simply isn’t true. During the same period of time that incarceration rates skyrocketed, crime rates fluctuated. Crime rates went up, then went down, then went up, then went down again. Today, crime rates are at historical lows. But incarceration rates – throughout all of these fluctuations – have consistently soared. Most criminologists today will acknowledge that crime rates and incarceration rates in the United States have had relatively little to do with each other. Incarceration rates – especially black incarceration rates – have soared regardless of whether crime has been going up or down in any given community or the nation as a whole.
Defenders of the status quo will often try to mislead the public by saying, “Just look at our state prisons: nearly half of the inmates are violent offenders. This system is about protecting the public from violent crime.” This type of statement is highly misleading. First, the statement excludes federal prisoners. Less than 8 percent of federal prisoners are violent offenders – most are convicted of drug or immigration offenses. More important, though, that kind of statement obscures the fact that the overwhelming majority of people who have been arrested in the era of mass incarceration have been arrested for non-violent offenses. What defenders of the system typically fail to acknowledge is that the reason violent offenders comprise a fairly large percentage of the state prison population is because they typically receive longer sentences than non-violent offenders. Because they stay longer, they comprise a larger share of the prison population than the millions of nonviolent offenders who are cycling in and out, trapped in a cycle of perpetual marginality that has been deliberately constructed through our legal system.
I think it’s critically important for people to understand that this system of mass incarceration governs not just those who find themselves in prison on any given day, but also all those who are in jail, on probation or parole, as well as all those who are just months away from being locked up again because they are unable to find work or housing due to their criminal record. Today there are more than 7 million people under formal correctional control in the United States, but only 1.5 million are in prison. The rest – more than 5.5 million – are in jail, on probation or parole. Probationers are the clear majority of those who are under community supervision (85 percent), and only 19 percent of them have been convicted of a violent offense. Most probationers have been convicted of drug possession offenses. More than 50 million Americans are saddled with criminal records that will follow them for the rest of their lives, locking them into a permanent second-class status. .
MK: How does the “war on drugs” figure into the arrests and branding of particularly black males as “criminals”?
MA: The war on drugs has been the engine of mass incarceration. Drug convictions alone constituted about two-thirds of the increase in the federal prison population and more than half of the increase in the state prison population between 1985 and 2000, the period of our prison system’s most dramatic expansion. Drug convictions have increased more than 1000% since the drug war began. To get a sense of how large a contribution the drug war has made to mass incarceration, consider this: There are more people in prisons and jails today just for drug offenses than were incarcerated for all reasons in 1980.
Most Americans violate drug laws in their lifetime, but the enemy in this war has been racially defined. Not by accident, the drug war has been waged almost exclusively in poor communities of color, even though studies have consistently shown – for decades – the people of color are no more likely to use or sell illegal drugs than whites. Now that’s hard for many people to believe, given that the media image of a drug dealer is a black kid standing on the street corner with his pants sagging down. And plenty of drug dealing does happen in the ‘hood, but it happens everywhere else in America as well. In fact, some studies suggest that where significant differences in the data can be found, white youth are more likely to engage in illegal drug dealing than black youth. But that is not what you would guess by taking a peek inside our nation’s prison and jails which are overflowing with black and brown drug offenders. In some states, 80-90 percent of all drug offenders sent to be prison have been one race: African American.
Again, defenders of the system will counter by saying this drug war has been aimed at violent crime. But that is not the case. The overwhelming majority of people arrested in the drug war have been arrested for relatively minor, non-violent drug offenses. One study showed that 4 out of 5 drug arrests were for simple possession, and that most people in state prison for drug offenses had no history of violent crime or even significant selling activity. And in the 1990s – the period of the greatest escalation of the drug war – nearly 80 percent of the increase in drug arrests was for marijuana possession, a drug less harmful than alcohol or tobacco and at least, if not more, prevalent in middle class white neighborhoods and college campuses as it is in the ‘hood. But by waging the drug war and “getting tough” almost exclusively in the ‘hood, we’ve managed to create a vast new racial undercaste in an astonishingly short period of time.
MK: Once a black male enters the prison-industrial complex as a man with a criminal record, what are his prospects in terms of jobs and an economically stable future?
MA: Slim to none. Once you have been branded a criminal or felon, you are typically trapped for life. For the rest of your life you must check the box on employment applications asking the dreaded question: “Have you ever been convicted of a felony?” And once you check that box, the odds are sky high that your application is going straight to the trash. Hundreds of professional licenses are off-limits to people convicted of felonies. In my state, in Ohio, you can’t even become a barber if you’ve been convicted of a felony. Discrimination in housing against people with criminal records is also perfectly legal. Public housing projects as well as private landlords are free to deny housing to people with criminal records. In fact, you don’t even have to be convicted. You can be denied housing – or your family evicted – just based on an arrest. Discrimination in public benefits is also perfectly legal. Under federal law, people convicted of drug felonies are deemed ineligible even for food stamps.
What are people released from prison expected to do? How are they expected to survive? Can’t get a job, locked out of housing, and even food stamps may be off limits. Well, apparently what we expect them to do is to pay hundreds or thousands of dollars in fees, fines, court costs, and back child support (which continues to accrue while you are in prison). And in a growing number of states, you’re actually expected to pay back the costs of your imprisonment. Paying back all these fees, fines, and costs may be a condition of your probation or parole. To make matters worse, if you’re one of the lucky few who actually manages to get a job following release from prison, up to 100% of your wages can be garnished to pay back all those fees, fines and court costs. One hundred percent.
Under these circumstances, what, realistically, do we expect people to do? Perhaps the better question is: What does this system seem designed to do? As I see it, it seems designed to send people right back to prison, which is what happens about 70% of the time. About 70% of those released from prison return within a few years, and the majority of those who return in some states do so in a matter of months because the challenges associated with mere survival on the outside are so immense.
MK: How does the institutionalized racism of the prison-industrial complex affect the rights of black males to vote?
MA: Millions of people are unable to vote due to felony convictions with the highest rates among black men. People in prison are denied the right to vote in 48 states, and while we accept that as normal in the United States, in other western democracies people in prison do have the right to vote. In fact, in some countries there are actually voting drives conducted in prison! But here in the U.S., we seem to take the idea of democracy a bit less seriously and people are denied the right to vote not only when they are in prison, but also upon release in many states. People on probation and parole are typically denied the right to vote, and in eleven states people are denied the right to vote even after completion of their sentences. Nationwide about 1 in 7 black men are temporarily or permanently disenfranchised due to felon disenfranchisement laws. In some states the figure is closer to 1 in 4. Voting rights expert and legal scholar Pam Karlan reports that as of 2004, there were more black men disenfranchised than in 1870, the year the Fifteenth Amendment was ratified prohibiting laws that deny the right to vote on the basis of race.
MK: What are the incentives for police to arrest minority teens for minor drug offenses?
MA: Many people don’t realize that financial incentives have been built into the drug war that guarantee that law enforcement will continue to arrest extraordinary numbers of people, particularly in poor communities of color, for minor drug offenses that get ignored on the other side of town. In the war on drugs, state and state law enforcement agencies have been rewarded in cash by the federal government – through programs like the Edward Byrne Memorial Grant program – for the sheer numbers of people arrested for drug offenses. To make matters worse, federal drug forfeiture laws allow state and local law enforcement agencies to keep, for their own use, up to 80 percent of the cash, cars, and homes seized from suspected drug offenders. You don’t even have to be convicted of a drug offense; if you’re just suspected of a drug offense, law enforcement has the right to keep the cash they find on you or in your home, or seize your car if drugs are allegedly found in it or “suspected” of being transported in the vehicle. Between 1988 and 1992 alone, Byrne-funded drug task forces seized over $1 billion in assets. The targets of these stop and frisk tactics and routine seizures are not college students or middle class suburban youth who use and sell plenty of drugs. No, if the drug war was waged in those communities it would spark such outrage that the war would end overnight. This literal war is waged in segregated, impoverished communities defined largely by race, and the targets are the most vulnerable, least powerful people in our society. Yet far from putting any meaningful constraints on law enforcement in this war, the U.S. Supreme Court has given the police license to stop and search just about anyone, in any public place, without a shred of evidence of criminal activity, and it has also closed the courthouse doors to claims of racial bias at every stage of the judicial process from stops and searches to plea bargaining and sentencing. As I describe in some detail in my book, the U.S. Supreme Court has virtually immunized the system of mass incarceration from judicial scrutiny for racial bias, much in the same way that it rallied to defend slavery and Jim Crow in earlier eras.
MK: In your book, you ask the question, “Can we envision a system that would enforce drug laws almost exclusively among young white men and largely ignore drug crime among young black men?” Yet, you note in the same section that the jailing of some whites allows us as a nation to feel that the criminal justice is colorblind. Would you elaborate on this?
MA: For those who say that the war on drugs and the system of mass incarceration really isn’t about race, I say there is no way we would allow the majority of young white men to be swept into the criminal justice system for minor drug offenses, branded criminals and felons, and then stripped of their basis civil and human rights while young black men who are engaged in the same activity trot off to college. That would never be accepted as the norm. We would never throw up our hands and say to those white boys – well, too bad, if you had just stayed away from marijuana or not dealt dope to your friends when you were 18 you wouldn’t be serving a life sentence in prison right now. You wouldn’t be locked out of jobs, unable to even get work at McDonalds. No, instead we’d say, “What’s wrong with us as a nation that we would condemn so many of our young men to a life of poverty, exclusion, and scorn simply because they made a few mistakes in their youth?” The mass criminalization of white men would disturb us to the core. In my view, the critical questions in this era of mass incarceration are: What disturbs us? What seems contrary to expectation? Who do we really care about?
But of course in this age of colorblindness, a time when we have supposedly moved “beyond race,” we as a nation would feel very uncomfortable if ONLY black people were sent to jail for drug offenses. We seem comfortable with 90 percent of the people arrested and convicted of drug offenses in some states being African American, but if the figure was 100 percent, the veil of colorblindness would be lost. We could no longer tell ourselves stories about why 90 percent or 80 percent is really the right figure, even though black people aren’t more likely to commit drug crimes. The fact that people of all colors have been ensnared by the drug war helps to preserve the system as a whole from serious critique, as it creates the impression – at a glance – that the war is being waged in an unbiased manner, even when nothing could be further from the truth.
MK: To what extent is the criminal and prison-industrial complex, particularly with the emergence of the for-profit prison industry, like any other corporation, with financial demands and lobbyists to feed the beast; i.e. sustain and, when possible, increase the number of incarcerated individuals? A lot of people make money off of this industry. It is a multibillion-dollar operation.
MA: Yes, it is. Private prison companies are now listed on the New York Stock exchange and are doing quite well in a time of economic recession (and depression in some communities). But that’s just the tip of the iceberg. The prison-industrial complex employs millions of people directly and indirectly. Judges, prosecutors, defense attorneys, prison guards, construction companies that build prisons, police, probation officers, court clerks, the list goes on and on. Many predominately white rural communities have come to believe that their local economies depend on prisons for jobs. Prison guard unions have become the powerful political forces in some states, particularly California. They don’t just lobby for better working conditions or higher pay but they also support harsh mandatory minimum sentences, three strikes laws, and other “get tough” measures because those laws represent job security. For those interested in learning more about corporations and private individuals profiting from the caging of human beings, I highly recommend the book “Prison Profiteers: Who Makes Money From Mass Incarceration.”
MK: Would you compare the sentencing differences for drunk driving (mostly white offenders) with sentences for criminal offenses (with mostly blacks charged, even though white offenders are quite high, particularly among the young)? What are the implications of this disparity?
MA: The dramatically different manner in which we, as a nation, responded to the crisis presented by drunk driving and the crisis caused by the emergence of crack cocaine speaks volumes about who we value, and who we view as disposable. During the 1980s, at the same time that crack cocaine was making headlines, a grassroots movement was emerging to address the widespread and sometimes fatal problem of drunk driving. Unlike the drug war, which was born of deliberate political strategy to exploit our nation’s racial divisions (part of the Southern Strategy to flip the South from blue to red), the anti-drunk driving movement was a bottom-up movement led most notably by mothers whose families were shattered by deaths caused by drunk driving. By the end of that decade, drunk drivers were responsible for about 22,000 deaths annually, while overall alcohol-related deaths were close to 100,000 per year. . By contrast, during the same time period, there were no prevalence statistics at all on crack – even though crack babies, crack dealers, and so-called crack whores were dominating the news. In fact, the total number of deaths related to ALL illegal drugs combined was tiny compared to the number of deaths caused by drunk drivers. The total of all drug related deaths due to AIDS, drug overdose, or the violence associated with the drug trade, was estimated at 21,000 annually – less than the number of deaths caused directly by drunk drivers and a small fraction of the number of alcohol-related deaths each year.
So how did we respond to these competing crises that were unfolding simultaneously? Well, in response to the advocacy of groups like Mothers Against Drunk Driving, most states adopted tougher laws to punish drunk driving. Numerous states now have some type of mandatory sentencing for this offense – typically two days in jail for a first offense and two to ten days for a second offense. Possession of a tiny amount of crack cocaine, on the other hand, was given a mandatory minimum sentence of five years in prison.
The vastly different sentences afforded drunk drivers and drug offenders tells us who is viewed as disposable – someone to be purged from the body politic – and who is not. Drunk drivers are predominately white and male. White men comprised 78 percent of the arrests for this offense in 1990 when the new mandatory minimum sentences were adopted. They are generally charged with misdemeanors and typically receive life sentences involving fines, license suspension, and community service. Although drunk driving contains a far greater risk of violent death than the use of sale of illegal drugs, the societal response to drunk drivers has generally emphasized keeping the person functional and in society, while attempting to respond to the dangerous behavior through treatment and counseling. People charged with drug offenses, though, are typically poor people of color. They are routinely charged with felonies and sent to prison.
MK: It costs taxpayers, on an average nationwide, at least $20,000 a year to keep an individual in prison. Why don’t we just create jobs programs where black males can find meaningful employment instead of leaving vast swaths of urban America as financial wastelands and arresting male residents of these areas on minor drug charges? Wouldn’t that create an infinitely more positive outcome? To what degree is that a perpetuation of multigenerational racial poverty?
MA: Of course it would make far more sense to invest in education and job creation in poor communities of color, rather than spend billions of dollars caging them and monitoring them upon release. The fact that this system is so utterly irrational shows that the system isn’t really about public safety. Our system of mass incarceration is better understood as a system of racial and social control than a system of crime prevention or control.
We have now spent 1 trillion dollars waging the drug war since it began. A trillion. Those funds could have been used for education, jobs and drug treatment in the communities that needed it most. We could have used those funds for our collective well being, instead those dollars paved the way for the destruction of countless lives, families, and dreams. One day, I believe historians will look back and they will say that it was there, right there at the prison gates, where we abandoned Martin Luther King, Jr.’s dream and took a dramatic U-turn that would leave millions of Americans permanently locked up or locked out.
The scale of the harm that has been done and the magnitude of the challenge we now face is daunting, to say the least. It can feel overwhelming, even hopeless or paralyzing at times. What keeps me going, and what fills me with determination is the knowledge that that those who risked their lives to end the old Jim Crow would not have been so easily deterred. So I believe we must be willing to pick up where they left off and do the hard work of movement building on behalf of poor people of colors. We must build a movement for education, not incarceration. A movement for jobs, not jails. A movement that will end all forms of discrimination against people released from prison – discrimination that denies them basic human rights to work, shelter and food. We must muster the courage, we must find the will, we must do what is necessary to build a truly transformative movement that will end the history and cycle of caste in America.