Saturday, December 07, 2019

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Introduction

In the five decades since African 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, and their lifetime risk of incarceration has doubled. As the United States has become the world's largest jailer and its prison population has exploded, black men have been particularly affected. Today, black men are imprisoned at 6.5 times the rate of white men.

While scholars have long analyzed the connection between race and America's criminal justice system, an emerging group of scholars and advocates has highlighted the issue with a provocative claim: They argue that our growing penal system, with its black tinge, constitutes nothing less than a new form of Jim Crow. This Article examines the 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 opportunities in life have been permanently diminished by the loss of citizenship rights and the stigma 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, by highlighting the role of politicians seeking to exploit racial fears while minimizing other social factors, oversimplifies the origins of mass incarceration. Part IV demonstrates that the analogy has too little to say about black attitudes toward 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 that violence destroys so many lives in low-income black communities and 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 address a question that arose when I began presenting versions of this Article to readers familiar with my own opposition to our nation's overly punitive criminal justice system. As an academic, I have written extensively about the toll that mass incarceration has taken on the African American community, and especially on young people in that community. I am also a former public defender who co-founded a school that educates young people who have been involved with the juvenile justice system. 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 have drawn 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 recognize some of the signal contributions of the New Jim Crow writers, especially 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 single out Michelle Alexander's contribution to the literature because her elaboration of the argument is the most comprehensive and persuasive to date.

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 more often than we disagree, the disagreements matter. I believe that the Jim Crow analogy neglects some important truths and must be criticized in the service of truth. I also believe that we who seek to counter mass incarceration will be hobbled in our efforts if we misunderstand its causes and consequences in the ways that the Jim Crow analogy invites us to do. In Part V, for example, I note that the New Jim Crow writers encourage us to view mass incarceration as exclusively (or overwhelmingly) 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. 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. The idea that the Jim Crow analogy leads to a distorted view of mass incarceration--and therefore hampers our ability to challenge it effectively--is the central theme of this Article.

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