Branded and Caged in America

A Note on the Interview
We are publishing this interview courtesy of The Michael Slate Show radio show on KPFK, Los Angeles. The views expressed by the author in this interview are, of course, her own, and she is not responsible for the views expressed elsewhere in this newspaper.

In 1980 a half million people were in jail in the United States. By 2006 the number of prisoners had swollen to 2.3 million, an increase of over 450 percent. And this has hit Black people particularly hard. While African-Americans are 13 percent of the U.S. population, they are over 50 percent of the prison population and are incarcerated at a rate eight times higher than that of whites.

In her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, legal scholar and civil rights activist Michelle Alexander provides an incisive and insightful picture of how all this works today, how all the resources of the U.S. legal system have been brought to bear and adapted to carry out this unprecedented mass imprisonment of Black people, especially young Black men. Alexander details how the so-called War on Drugs was developed and shaped as part of this whole process and how it continues to play a key role today. And importantly, Alexander shows that all of this has created a new racial caste system, a New Jim Crow system of dehumanization that locks millions of Black people into the bottom of U.S. imperialist society based on their status as ex-prisoners. All this as we are continually told that this is a colorblind society.

Michelle Alexander was a guest on The Michael Slate Show on KPFK radio last May and this excerpt is drawn from that interview.

Michael Slate: You describe the systematic mass incarceration of Black people and brown people over the last 30 years as having created a new racial caste system. Can you explain what you mean by that?

Michelle Alexander: I believe that within a few decades after the collapse of the old Jim Crow, we as a nation have managed to recreate racial caste in America. Of course, with the election of Barack Obama, it's widely believed that we have triumphed over race. But in some major American cities the majority of African American men are locked behind bars, or labeled felons for life. Once you're labeled a felon, you're trapped. You're trapped in a permanent second-class status, in which you may be denied the right to vote, automatically excluded from juries, and legally discriminated against in employment, housing, access to education, food stamps, public benefits.

So many of the old forms of discrimination that were supposedly left behind during the civil rights movement 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've merely redesigned it by targeting African Americans, primarily through the War on Drugs, branding them felons often at young ages, before they are even of an age to vote: branding millions of young people of color as felons, often for non-violent and drug-related offenses, the very crimes that are largely ignored in middle-class white communities. We are recreating a caste system where these people are locked in a permanent second-class status for life.

Slate: I think a lot of people are a little surprised by your statement that the American penal system has emerged as a system of social control unparalleled in world history. Can you give people a sense of the scope of this?

Alexander: Consider this: Today there are more African Americans in prison or jail, on probation or parole, than were enslaved in 1850, a decade before the Civil War began. There's more African Americans under correctional control today than were enslaved. That's the scope and size of it. I think part of the problem is that, when people go to prison, they're out of sight and out of mind, so it's easy for us to be in denial about just the sheer size, scope and scale of mass incarceration, because prisons for the most part are out of public view. But the reality is that within a few decades our prison population has quintupled, not doubled or tripled, quintupled. We now have the highest rate of incarceration in the world, dwarfing rates of incarceration even in highly repressive regimes like Russia, China and Iran.

This explosion in our prison population has not been driven by crime rates. The supposedly colorblind justification for the mass incarceration of people of color is crime rate. But as I describe in some detail in my book, crime rates do not even begin to explain the astounding and rapid increase in imprisonment in African American communities. The War on Drugs is the primary cause of the prison boom, a war that has been waged almost exclusively in poor communities of color, even though studies consistently show that people of color are no more likely than whites to use or sell illegal drugs.

More than 30 million people have been arrested since the drug war began, the vast majority of whom are people of color. While many people assume that the drug war was declared in response to rising drug crime in inner-city communities, it's just not true. The current drug war was officially declared by President Ronald Reagan in 1982, at a time when drug crime was actually on the decline, not on the rise. It was a couple years before crack hit the streets in Los Angeles, and later spread to inner-city communities across America. The drug war was declared in response to racial politics, not drug crime. It was part of the grand strategy of the Republican Party to appeal to poor and working class white voters through racially coded "get tough" appeals on issues of crime and welfare.

Republican Party strategists and pollsters found that they could be highly successful in appealing to white poor and working class folks, particularly in the South, through using racially coded "get tough" appeals on crime and welfare. In fact, H.R. Haldeman, President Richard Nixon's White House chief of staff, observed, "The whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to." So, they did.

A few years after the drug war was announced, and crack hit the streets, the Reagan administration seized on this development with glee, hiring staff whose job it was to publicize inner-city "crack babies," "crack mothers," "crack whores." The goal was to make inner-city crack abuse and violence a media sensation, bolstering public support for the drug war, so it would be possible to turn what had been a rhetorical war into a literal one. The plan worked like a charm. For more than a decade, black drug dealers and users would be regulars in newspaper stories and would saturate the evening news. Congress and state legislatures nationwide would devote billions of dollars to the drug war and pass harsh mandatory minimum sentences. Democrats began competing with Republicans to prove they could be even tougher on crime, tougher on the dark-skinned others who had been defined in the media as the source of all our social ills. Within an incredibly short period of time, not in response to crime rate—again, crime rates have fluctuated over the past 30 years and are today at historical lows. But incarceration rates have consistently soared. They've moved independently of crime rates, due to a war that has been declared, not against drugs, but against communities defined by race.

Slate: Let's talk a little more about the War on Drugs. How does it actually work in relation to all this.

Alexander: One of the biggest myths about the drug war is that it's focused on rooting out drug kingpins or violent offenders. But nothing could be further from the truth. Federal funding flows to those state and local law enforcement agencies that are willing to boost dramatically the volume of their drug arrests, the sheer numbers. The Reagan administration adopted new rules and new programs that authorized millions of dollars in federal funding to flow to agencies, some of which had initially been reluctant to wage the drug war, feeling it would be a distraction from more important crimes like murder, rape, and robbery. The way in which the Reagan administration persuaded law enforcement agencies to get on board with the drug war was through bribes, through cash grants that were made available to law enforcement agencies that would drastically increase just the sheer volume of drug arrests.

To make matters worse, the Reagan administration managed to change federal drug forfeiture laws so that state and local law enforcement agencies could keep, for their own use, 80 percent of the cars, cash, homes seized from drug suspects, thus granting law enforcement a direct, monetary interest in the profitability of the drug market. The result has been entirely predictable. People of color are rounded up en masse. Kids are stopped and searched on the way to school. If they learn to drive a car their cars are often searched in the hopes of finding drugs, sometimes dismantled. There are sweeps of public housing projects, schools, for drugs. And again, it's not that they're looking for violent offenders or drug kingpins. They're trying to boost their numbers of drug arrests in these communities.

In 2005, for example, four out of five drug arrests were for possession. Only one out of five was for sales. Most people in state prison for drug offenses have no history of violence or even felony activity. In fact, in the 1990s, the period of the most dramatic expansion of the drug war, nearly 80 percent of the increase in drug arrests was for marijuana possession, a drug now widely believed to be less harmful than alcohol or tobacco and at least as prevalent in middle class, white communities as it is in communities of color. But the drug war has been waged almost exclusively in poor communities of color. In fact, in some states 80 to 90 percent of all drug offenders are African American.

So through financial incentives, and the Supreme Court granting law enforcement license to stop and search just about anyone, anywhere, as long as they're able to extract consent, the drug war has managed to brand millions of people felons. And once you're branded, discrimination against you is legal for the rest of your life. People who are released from prison have an extraordinarily difficult time finding jobs. They're forced to check that box on the employment application, no matter if the minor drug felony they committed was 20 years ago, still having to check that box on employment applications. States deny convicted felons professional licenses. Thousands of professional licenses are off limits to felons. In some states you can't even get a license to be a barber if you've been branded a felon.

Slate: You talk about how the War on Drugs has been used as a justification for gutting a lot of the basic constitutional rights. What does this look like, how many rights have been redefined in order to facilitate the mass incarceration of people of color?

Alexander: The U.S. Supreme Court has eviscerated, just shredded, many of the constitutional protections that once protected people from arbitrary and discriminatory police actions. Through a series of actions, the U.S. Supreme Court has made it perfectly legal for the police to stop people on the street, question them about potential drug activity or criminal activity, frisk them. As long as the demand is phrased as a question, it's perfectly legal. So if the police say, "Will you put your arms up in the air?" and "Will you turn and face the wall so we can frisk you?" and the person complies, that's interpreted as consent. So there's no reason for law enforcement to have even reasonable suspicion of criminal activity as long as they "get consent." Now of course many people are not brave enough or foolish enough to resist the police when they say, "Will you put your hands up in the air? May I search your car?" People don't understand those to be questions. They understand them to be demands, and comply. Often when people do try to resist and refuse consent to search, they face police brutality.

So the U.S. Supreme Court really has paved the way for the roundup of millions of Americans for relatively minor drug offenses. And the Supreme Court has also made it virtually impossible to prove racial bias in the criminal justice system. People always ask me, "Well, if the system is a biased as you say it is, why don't we hear more about it in the news? Why aren't people filing lawsuits about it?"

Well, the reason there are not more lawsuits challenging racial bias in the criminal justice system is that the Supreme Court has closed the door to claims of racial bias at all stages of the criminal justice process, from stops and searches to plea bargaining and sentencing. In a series of cases beginning with McCleskey v. Kemp, the Supreme Court has said that no matter how severe the racial disparity, no matter how overwhelming the statistical evidence, if you can't provide proof that the law enforcement official acted out of conscious racial bias, you can't even get in the courthouse door. You can't even state a claim of discrimination. In the age of colorblindness, where everyone knows better than to say, "I stopped him because he was black," "I sought the death penalty because he was black," "I refused to give him a good plea deal because he was black," everyone knows better. So insisting on evidence of conscious racial bias, a smoking gun, guarantees that the routine discrimination that African Americans face in the criminal justice system will never be subject to judicial scrutiny.

And in this way, the mass incarceration of African Americans has been immunized from challenge in the legal system, much in the same way that the Supreme Court once protected the institutions of slavery and Jim Crow.

Slate: Something that might come as a surprise to a lot of people is that you point out that the Supreme Court has said that the police can actually use race as a factor in deciding who to stop and search or question.

Alexander: I call it the dirty little secret about racial profiling, which is that the U.S. Supreme Court has actually authorized law enforcement to use race as a factor in making decisions about who to stop and search. Now this is particularly relevant today, now that Arizona has passed a law authorizing law enforcement to demand citizenship papers from anyone they suspect might be in the country illegally. The claim that this will inevitably lead to racial profiling is absolutely right, because the U.S. Supreme Court has said, specifically in the context of immigration but it's a decision that applies in drug law enforcement as well, that race can be used as a factor in making decisions about whom to stop and search. So many people hoped that the U.S. Supreme Court would reverse that case. In that case the court concluded that the police could take a person's Mexican appearance into account when developing reasonable suspicion that a vehicle may contain undocumented immigrants. The court said, "The likelihood that any person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in decisions about whom to stop and search.

Now that's absurd, the idea that anyone who looks Mexican [laughing] is a reasonable suspect as an illegal immigrant is outrageous. And today, many law enforcement agencies claim that they don't engage in racial profiling. But they make those claims with a wink and a nod. Because they know that they have been authorized by the U.S. Supreme Court to use race as a factor, as long as race isn't the only factor, the only reason for the stop, they can get away with racial profiling.

Slate: One of the ideas you wrestle with is that this is a supposedly colorblind society. One of the expressions of how this contradiction plays itself out is the cops and the prosecutors being able to say, "We're not dealing with race here," even though they clearly are. They say, "We're just using our discretion."

Alexander: On their face, drug laws are race neutral. The laws aren't written to apply differently to black people, white people, or Latinos. On their face, they appear race neutral. But they are enforced in a racially discriminatory manner. They are able to be enforced in a racially discriminatory manner because law enforcement has been granted virtually unbridled discretion in making decisions about who will be stopped and searched, who will be charged for what crimes. There is very little oversight or accountability for law enforcement decisions about who will be stopped, who will be searched.

The same goes for prosecutors. Prosecutors and police have this enormous discretion about whom on the streets to view as a suspect, who to go after, who to stop and frisk, who to let walk by. And this enormous discretion inevitably produces racial disparities. Why? Because we all have conscious as well as unconscious biases about who the criminals are. As I indicated earlier, these biases and stereotypes don't exist in our head purely by accident. They've been created by media campaigns that have been waged by politicians.

The fact that our television sets were saturated with images of black and brown drug dealers during the crack epidemic isn't an accident. The Reagan administration actually launched a media campaign and hired people whose job it was to publicize inner-city crack users and dealers. So it's no surprise that when a survey was done in 1995, asking people, "Close your eyes for a minute and imagine a drug criminal," 95 percent of the respondents pictured an African American. Only 5 percent pictured anyone of any other race. So we now have in our public consciousness an association of crime and race that is deep and profound. The association between African Americans and drug use and drug sales is profound, even though people of color are no more likely to use or sell drugs than whites.

The Supreme Court has said, as long as law enforcement can identify some reason besides race for the stop, it's OK for them to use race as one factor. The absurdity of this logic can be evidenced by the fact that the police almost never stop someone solely because of race. A young black kid wearing baggy pants standing in front of his high school surrounded by a group of similarly dressed black friends may be stopped and searched because the police think he looks like a drug dealer. But clearly race is not the only reason for that conclusion: Gender, age, attire and location are playing a role. The police probably would ignore an 85-year-old black man standing in the same spot surrounded by a group of elderly black women. So there will always be factors that can be cited in addition to race.

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