The New Jim Crow in the First State

Is Jim Crow alive in the USA and in Delaware in particular? In this era of the Civil Rights Act, affirmative action, and an Obama in the White House, do we still live under a system of laws designed to keep the black man down? That is what Michelle Alexander charges in her explosive new book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Piecemeal reforms and timid civil rights activism, she argues, must give way to a sweeping transformation, based on a recognition of the massive injustice against black America and on compassion for the stigmatized young African American male.

If she’s right, what does that say about the First State? Is it possible that the terrible gun violence afflicting Wilmington can be traced to the War on Drugs and how it has disenfranchised a generation of black youth? Is it possible that black youth, labeled felons, unable to find work, and ineligible for public services including student aid, are turning to the drug trade, where, competing with others so disenfranchised, they are engaged in a battle for survival that is inevitably violent? Is it possible that well-meaning reformers, focused on narrow aspects of the problem and dependent on the system, are perpetuating the greater injustice? After considering Alexander’s book and examining official criminal justice records, I am convinced the answer to all these questions is yes.

Back in the late 90s, I worked with a coalition then called the Alliance for the Restoration of Ex-Offenders, whose mission was to amend the Delaware Constitution to permit ex-felons to vote. Capping a battle that went back 20 years to the struggles of the late Representative Al O. Plant, we succeeded, although Delaware still requires a five-year wait following completion of sentences, including economic penalties and other restrictions. Another amendment, the Hazel D. Plant Voter Restoration Act, (HB 9), which will remove most restrictions, will reach its final leg in the 2013 General Assembly. While one of my motivations was the disparate impact felon disenfranchisement had on African Americans, I learned never to use the word “racist” in the State Legislature. I also learned that many ex-felons had other concerns than just the right to vote. They told me, in so many words, “It’s great, Phil, if we can get to vote, but we need jobs.”

The hurdles that ex-offenders face in getting a job, described by Michelle Alexander’s work, demonstrate the weakness of the piece-meal reforms we worked so hard for in the nineties. Barring 7.5 percent of its voters, Delaware is still second in the nation in disenfranchising its citizens, ahead of states with greater restrictions on felons voting, according to the ACLU. Arguably, there are more disenfranchised now than when we won our victory.  My experience then and reading The New Jim Crow now convinces me that it is time to call the War on Drugs and its attendant mass incarceration what it is, a racist criminal justice system, and to seek its abolition.

Alexander’s thesis is that in spite of today’s lack of overt racist sentiment and the appearance of African Americans in high positions, caste disenfranchisement that began with slavery has persisted in new forms throughout our history and exists today in our criminal justice system, due in large part to the War on Drugs. “Colorblindness” is more a blindness to the color line than its abolition.

She traces the seesaw battle between racial progress and mechanisms to maintain blacks as a “lower caste,” that is, “individuals who are permanently barred by law and custom from mainstream society.” Black and white bond workers worked shovel by plow together and even linked arms against plantations barons in Bacon’s Rebellion of 1675. Planters learned their lesson and began importing more slaves and offering special privileges to whites. Upon a “racial bribe” for poor whites and upon the interests of wealth, then, slavery, the original system of caste control, took root.

Following emancipation,  “black codes” like vagrancy laws were imposed to force blacks back on the plantation. Reconstruction, backed by federal troops, led to progress, but when the troops were withdrawn, Klan terror and “Jim Crow” laws imposed a new regime of caste control that lasted over 75 years.

In the modern era, the Civil Rights movement, the Civil Rights Act, and the Voting Rights Act did much to dismantle the system of racial caste, but the economic and cultural forces of Jim Crow did not die away, according to Alexander; they are reborn in mass incarceration. Once incarcerated, blacks enter a “hidden underworld of legalized discrimination and permanent social exclusion”:

Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man at the height of Jim Crow.

But “whoa,” the reader will protest. “If you do the crime, you do the time. Race has nothing to do with it. If 61 percent behind bars are blacks and Hispanics, so what if they’re only 29 percent of the population? Blacks and browns are committing the crimes.” 

Well-meaning reformers bolster the notion that crime is a black thing, according to Alexander, because, blinded by the colorblindness myth, they see the disparities in incarceration as due

to the predictable though unfortunate, consequences of poverty, racial segregation, unequal educational opportunities, and the presumed realities of the drug market, including the mistaken belief that most drug dealers are black or brown.

That drug crime is not a particularly black or brown phenomenon is Alexander’s most shocking revelation. The misconception began, she says, during the Reagan era. Right after Reagan declared the War on Drugs in 1982, crack cocaine began to spread across the country. She recalls that drug traffickers associated with Nicaraguan “Contras” were protected by the CIA, which, under Reagan, supported their war against the Sandinista Government. She rejects conspiracy theories that the CIA spread crack deliberately, but Reagan’s staff began to publicize the spread “to build public and legislative support for the war.” In short order, reports Alexander, “the media was saturated with images of black ‘crack whores,’ ‘crack dealers,’ and ‘crack babies’—images that seemed to confirm the worst negative racial stereotypes about impoverished inner-city residents.”

Soon, get-tough-on-crime laws proliferated. Since Ronald Reagan declared the War and Drugs in 1982, incarceration in the United States has soared from less than 500,000 to 2,266,832 at the end of 2010. No other country imprisons citizens at so high a rate. 

In spite of the overwhelmingly dark complexion of the prison population, blacks and whites actually use drugs at roughly the same rates, reveals Alexander, citing the 2000 and 2007 National Household Surveys on Drug Abuse.

Alexander ascribes the discrepancy between drug use and drug arrest to several factors, but especially the stop and frisk policies in black neighborhoods, federal incentives to local law enforcement, excessive plea bargaining, neglect by the Civil Rights community, and a number of federal court cases disallowing disparate impact as evidence of discrimination without explicitly expressed intent. If you can’t find some lawmaker saying he wants this law because it will keep the black man down, you don’t have a case. Wink-and-a-nod-racism empowers the New Jim Crow.

Do Delaware politicians, policy-makers, police, and statisticians similarly wink and nod?  Recall how I was told “Don’t use the word ‘racism’” when working on ex-felon voting rights in the Delaware General Assembly. Let’s look at a 2011 report requested by that august Assembly, submitted by the Criminal Justice Statistical Review Committee.

At the outset, the study seems to confront the issue directly. “Some observers,” they report, “suggest that racial profiling and selective targeting cause a disproportionate number of minority arrests.” To see if this is so, they compare percentages of blacks identified in complaints for robbery, assault, and rape to percentages of blacks who were consequently arrested, detained, convicted, and incarcerated. Blacks led significantly, if not dramatically, in almost every category but convictions, which whites, if arrested, were more likely to face. In the end, however, even if convicted, whites were less likely to face jail.  Based on this data, the Review Committee reassured the General Assembly that “racial disparities in the criminal justice system in Delaware are primarily explained by disparities in reported criminal activity rather than selective enforcement” They allow, however, that the study “shows a clear need to delve into these statistics to determine if there is racial bias or if the racial disparities reflect factors unrelated to the criminal justice system, or some combination of both.”

They should have delved.

Instead, they duck the issue of racial profiling in drug crimes. Because drug dealing “does not involve specific individual victims,” they explain, arrests are not generally responses to complaints, so “these arrests may be perceived to be police-initiated.” Nonetheless, they explain, such crimes “involve neighborhood quality of life complaints or investigations of other criminal activity, and the drug trade has long been associated with high levels of street violence.” Therefore, they conclude,  “[i]t is . . . problematic to regard drug dealing arrests as simply discretionary law enforcement choices.” There’s nothing to see here if 72.9 percent of those arrested for “drug dealing” are black (white percentages not reported). Once arrested, blacks are much more likely than whites to be detained (85.4 percent black vs. 68.3 percent white) and incarcerated if convicted (60.2 percent Black vs. 36.9 percent white). Recall that only slightly more than 20 percent of Delaware residents are black.

Whether or not police arrests are racially biased begs the question of whether blacks are committing drug crimes more than whites. Furthermore, the issue of violent crime is a red herring, but it is a fish that has been well baked by the much-vaunted Delaware Sentencing Accountability Commission (SENTAC).

In SENTAC’s study “2007 Superior Court Drug Case Sentencing Patterns,” researchers John P. O’Connel, Jr. and Spencer B. Price attempt to show how the Delaware Drug Court mitigates some of the concerns raised by Michele Alexander.

First, they address the hypothetical question “Isn’t it true that most offenders are sentenced to prison for non-violent offenses?” The answer, they assert, can be given “with some certainty when using the legal definition of violent crime found in 11§ 4201.” A quick search of the Delaware Code shows that many drug crimes, from “Manufacture of Controlled Substances” to “Aggravated Possession,” are defined as violent crimes. Thus, with some Orwellian circular reasoning, because Delaware says a drug crime is a violent crime, then only violent criminals are in prison.

Having excluding most drug offenders from the “non-violent” category, SENTAC then asks “[h]ow many non-violent drug offenders are sentenced to prison?” The answer: only 14 in 2007. Despite SENTAC’s assurances, of the 2075 convictions that were for drugs only (both the statutorily “violent” and the “non violent” kind), the vast majority served some time incarcerated and were permanently labeled “felon,” if they were not already so labeled, and permanently relegated to what Michelle Alexander calls the “lower caste.”

If you do the crime, you do the time . . . if you’re black.

This explosive charge by Michele Alexander applies in the First State.

Extrapolating from figures in Results from the 2008 National Survey on Drug Use and Health and US Census data for Delaware in 2010 for persons aged 12 and over, roughly 43,000 whites used illicit drugs in the past month, while a little over 16,000 blacks did. Put another way, over two and a half times as many whites as blacks used illicit drugs in any recent month. Yet, according to the report to the General Assembly cited above, 72.9 percent of adult males arrested for “drug dealing” were black.

By the way, those National Surveys on Drug Use are based on confidential and anonymous interviews and are well accepted for their reliability.

One can argue that we are comparing apples to oranges, one year’s convictions for drug dealing to another year’s use by persons over 12, or drug dealing to a host of drug offences that may or not be statutorily violent, so we cannot draw any conclusions. Perhaps that is the idea. None of the studies I have found focus acutely on the issue of racial disparity between drug crime and drug arrest. Much less do they deal with the complex networks of wink-and-a-nod racism.

What is to be done?

There are many good folks trying out solutions to the wave of violence in the cities, the disappearance of young black men into the criminal justice system, and drug abuse. Churches, non profits, activists, and mental health providers offer alternatives and advocate limited reforms. The News Journal has been promoting the Safe Communities approach, that lets concerned citizens confront gang members and offer alternatives to their ultimate incarceration. All of these are good, but almost every criminal justice reform, civil rights, peace, and social justice organization or non-profit intersects on some level with the state’s hierarchy of bankers, politicians, and chateau-country elites, who might be offended if we go off the plantation.

Nonetheless, all our efforts will fail unless they are grounded in a common set of values that says the War on Drugs must end and the prison system must be abolished.

Drugs are a social problem, not a criminal problem. Crimes associated with drugs are virtually all products of their prohibition and the lack of mental health services for those addicted.

Many families know the nightmare of addiction. They struggle against forces that tear them apart, and they struggle together to get their loved ones treatment, before they end up incarcerated, sick, homeless, or dead. Those with means go to Betty Ford’s. Those without, go to jail, come out stigmatized and disenfranchised, and fall into the quicksands of relapse, trafficking, and a violent struggle to survive.

The reduction in harms with drug legalization is known. In the ten years since Portugal in effect legalized all drugs, drug use has fallen across the board, HIV infections are down 17 percent, and drug deaths have fallen one half. Drug trade violence is forcing many countries to face the inevitable: The War on Drugs is a disaster. In the United States, it has spawned the New Jim Crow.

Next door in New Jersey, Republican Governor Chris Christie has declared, "The war on drugs, while well-intentioned, has been a failure." He adds, "Every life is precious and every one of God's creatures can be redeemed, but they won't if we ignore them."

Michele Alexander demands that blacks who have won social mobility in the “Age of Colorblindness,” as well as whites, give up the “racial bribe” that buys silence about what happens to “the least among us,” white, black, or brown. She quotes Martin Luther King, Jr. who told SCLC staff less than a year before his death, “it is necessary for us to realize that we have moved from the era of civil rights to the era of human rights. . . . We must see the great distinction between a reform movement and a revolutionary movement. We are called up to raise certain basic questions about the whole society.”

It is no coincidence that accompanying the spread of this heartless mass incarceration since the 80s has been the rise of a heartless economic policy called neoliberalism (neo:new; liber: free). Free the class of plutocrats from any social contract, free the rich from taxes, free the employer from paying a living wage, free the banks and industries from regulation, cut loose the social safety net, and replace it with jail. Liberals, meaning liberal Democrats, no longer act free to challenge neoliberalism. While they have rightly challenged the Jim Crow aspects of new voter ID laws, they are shy about taking on the prison-industrial complex, looking weak on law and order, or taking on Jim Crow in the War on Drugs.

The economic collapse brought on by neoliberalism has drained accumulated wealth among blacks more than whites, who have also suffered mightily. Runaway industries offer few opportunities for whites to maintain their lifestyles or for a new generation of African Americans to rise to the middle class, in spite of affirmative action. The young black male, disenfranchised by the New Jim Crow, faces towering obstacles.

Movements like Occupy Wall Street and Occupy Delaware have awakened the nation and the state to the increasing imbalance in power and wealth between the richest one per cent and the ninety-nine per cent that is the rest of us. They are exposing the central contradiction of our time, something that is inspiring people across the globe to rise up in revolt. What they and all of us need to do is to recognize who is paying the greatest price for neoliberalism and put the overthrow of the New Jim Crow front and center.

For all who would march toward justice, read Michelle Alexander’s The New Jim Crow and you’ll see farther down the road where our paths must meet.