II. Expand the Racial Justice Critique of Mass Incarceration Beyond the War on Drugs
Few tags have damaged mass incarceration more than the idea that it represents a new “Jim Crow,” a system of racial ordering designed to transform and sustain the system of white supremacy that goes back to slavery. Yet as mass incarceration slims down through reducing the use of incarceration for drug possession offenses, the sting of the new Jim Crow critique is likely to lessen, and the crossracial urgency of suppressing violent crime is likely to bring renewed legitimacy to a system that may remain just as inhumane. Violent crime, enhanced sentences for which already represent the main source of state prisoners, presents a much closer match between estimates of the underlying criminal behavior and the demography of prisoners. In short, the new Jim Crow argument, if reduced to the war on drugs, is likely to leave most of mass incarceration in place, in terms both of its historically unprecedented scale and of the high portion of African American and Latino prisoners.
But the link between mass incarceration and racism does not run through numbers alone. Although the racial disproportionality of African American and Latino prisoners began before mass incarceration, it is unlikely that the dehumanization of prisoners under mass incarceration would have been as politically sustainable without the lack of empathy and human connection that, more than positive discrimination, is the cutting edge of racism. Moreover, our penology contains a propensity to degrade while punishing that is incomprehensible without our history of slavery and racial domination. How else to comprehend the Thirteenth Amendment, which abolished slavery but allowed it to remain as a punishment for serious crimes. Our willingness to embrace a criminal justice system based on groupbased crime repression is a direct consequence of this history.
The human rights condemnation of mass incarceration should be of a piece with the racial justice condemnation. The mass internment of Japanese Americans— citizens and residents—during World War II is a powerful precedent for the kind of merging of racism and popular fear, even hysteria, that has driven mass incarceration in the last generation. Under an executive order signed by President Roosevelt, local military commanders were given authority to declare particular geographic regions off-limits to persons of Japanese origin. This was immediately done for the entire Pacific coast, leading to the resettlement of more than 100,000 people, mostly to internment camps in the western deserts where an entire population of citizens (nearly 80 percent) and other permanent legal residents, none of them convicted of any crime, were confined for the duration of World War II. Few today would disagree with Congress' own retrospective judgment in 1988 that the internment was a result of “race prejudice, war hysteria, and the failure of political leadership.” Although the internment was a national policy, much of its political motivation came from California, a state whose combination of aspirationalism and fear seems to make it especially prone to episodes of mass human rights violation.