Monday, October 14, 2019

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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, 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, as people with criminal records are permanently locked out of civil society.

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 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 a conviction's consequences. Depending on the state and the offense, a person convicted of a crime today might lose his right to vote as well as the right to serve on a jury. He might become ineligible for health and welfare benefits, food stamps, public housing, student loans, and certain types of employment.

These restrictions exact a terrible toll. Given that most offenders already come from backgrounds of tremendous disadvantage, 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.

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 low-income communities--as potential threats. This stigma increases their social and economic marginalization and encourages the routine violation of their rights. Intense police surveillance of black youths becomes accepted practice. Their misbehavior in school is reported to the police and leads to juvenile court. Employers are reluctant to hire them. Thus, even young, low-income 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, 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. 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.

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? In stating my objections, I do not mean to suggest that mass incarceration is anything less than a profound social ill, or that racial disparity, racial indifference, and even outright racial animus in the criminal justice system are yester- day's concerns. Nor do I argue that the Jim Crow analogy fails because mass incarceration is not exactly the same as Jim Crow. After all, the best of the New Jim Crow writers--especially Alexander-- acknowledge important differences between the two racial caste systems.

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

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