This fall, the U.S. Supreme Court is going to hear Evenwal v. Abbott, a lawsuit claiming that non-eligible voters–such as non-naturalized immigrants, and those barred from voting because of criminal records–should not be included in population tallies that determine the size of state legislative districts.
Given the fact that Black people are wildly overrepresented in the criminal justice system, this means that 150 years after abolishing slavery, the U.S. government is going to consider returning to the odious idea first established by the three-fifths provision of the U.S. Constitution–that as far as American democracy goes, millions of African Americans shouldn’t count as full people.
While many legal observers expect the Court to reject the suit, the fact that it is getting a hearing shows how far the legal system has gone toward enshrining what Michelle Alexander has famously called the New Jim Crow: A third historic system of racist oppression, coming after slavery and Jim Crow segregation in the South, that came into being in the 1980s and ’90s and has now become seen as normal.
At the heart of the New Jim Crow is mass incarceration: The extension of state control, via the criminal justice system, over a larger section of the population than history has ever seen in a country that is considered a democracy. Almost 7 million people–one in 35 adults–were either incarcerated or on parole or probation in 2013.
Blacks and Latinos make up almost 60 percent of those behind bars, even though they are only 30 percent of the overall population. The NAACP has estimated that one out of every three Black men can expect to spend part of their life in prison–and the numbers are rising dramatically for Black women.
Mass incarceration is a system of social control based on racism, but extending over the entire working class population–including working class whites, who are spared the worst abuses, but nevertheless suffer the effects.
Out of every 100,000 African Americans, more than 2,300 are currently incarcerated. For Latinos, that number is 831, and for whites, it is 450. There are two things to note about the rate of white people’s imprisonment: It is both five times lower than the rate for Black people in the U.S.–and it is higher than the incarceration rate of almost every other country in the world.
The massive number of white people in the criminal justice system is largely ignored by the corporate media, which has little interest in the lives of working class whites and has long been a major player in creating a racist narrative around crime and punishment.
It is important to understand that the racism of mass incarceration goes deeper than arrest and imprisonment numbers. Studies have shown that Black men with no criminal record are less likely to get a callback on a job interview than white men with a criminal record, and it is painfully obvious that Blacks and Latinos face a far greater threat of unprovoked and unaccountable police violence than white people.
But it’s also important to recognize that just as slavery and segregation were systems that held down Blacks and poor whites alike–by “divid[ing] both to conquer each,” as the abolitionist Frederick Douglass famously put it–so mass incarceration is a new racist institution that has enabled the U.S. state to massively expand its powers over all working people.
In some ways, the intensity of government control over millions of Black lives under mass incarceration makes it reminiscent of slavery. But in other ways, the two systems couldn’t be more different.
Inmate labor doesn’t come anywhere close to making up for the cost of the prison system, and the growing private incarceration industry, which is especially prominent in immigrant detention centers, is still a small player in comparison to the massive number of government-owned–and taxpayer-funded–gulags.
For the most part, the New Jim Crow is not a system of exploitation, but of brute repression and social control designed to make large sections of the population more easily exploitable elsewhere.
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Of course, mass incarceration has been sold as the exact opposite: A policy that confronts the crime ravaging poor and working-class people in communities of color. But this claim has long been completely discredited.
First, any honest effort to reduce crime among poor people would attempt to increase the number of jobs and the size of government benefits to make sure that people weren’t resorting to crime out of economic desperation and despair. Instead, throughout the 1980s and ’90s, Republicans and Democrats alike massively cut aid to cities even as they demonized crime and drugs.
As Alexander notes, for example, that during Bill Clinton’s presidency, the federal government “slashed funding for public housing by $17 billion…and boosted corrections by $19 billion.” In other words, prison-building was the Democratic Clinton administration’s primary housing policy.
Secondly, the system of mass incarceration is so monstrously and disproportionately large in comparison to crime rates, even at their high points, that it’s impossible to claim one is simply a response to another.
Crime was a serious problem in many neighborhoods in the 1980s and early ’90s, but not more so that at various other times in the past. This was the high point of a crime rate cycle that has risen and fallen throughout U.S. history, depending on the size of the youth population, the stability of organized crime networks and other factors.
By contrast, the police state that was erected in the name of battling this “crime wave” was completely unprecedented. Today, there are 65 million people who have a criminal record—one in four adults in the U.S. today–at the same time that hundreds of laws have been passed to make them second-class citizens.
Finally, even the claim that mass incarceration has reduced crime and violence–which seems irrefutable based on official statistics–is completely and obviously false as soon we include what happens inside prisons and in police interactions to the statistics.
According to the FBI’s Uniform Crime Reporting Program (UCR), the rate of violent crime (which are mostly assaults and robberies) in 2013 was 0.36 percent, down from a recent high point of 0.75 percent in 1992. That means there are about 1.2 million less violent crimes today than there would be if crime rates had remained at their 1992 levels.
But compared to 1992, there are over a million additional people today who are inside prisons and jails, which are sites of incredible–but almost entirely unmeasured–levels of violence.
In a 2012 Department of Justice survey, 4 percent of those in prison and 3.2 percent of those in jails and a horrifying 9.5 percent of those in juvenile detention facilities reported being sexually assaulted in the past year–which would account for around 200,000 total incidents in all.
Based on another survey that 16 percent of prisoners reported being injured by another inmate in a fight, we can conservatively estimate, based on average jail sentences, that at least another 111,000 people are victims each year of non-sexual assault. And of course, it is impossible to put a number on how many prisoners are abused each year by prison guards to a degree that would qualify as assault in any normal context.
In fact, in one respect, there is more violence out in the open–the thousands of hostile police patrols that take place every day.
Every single police “stop-and-frisk” is a forced encounter backed by the threat of a weapon, and many involve some form of assault, though they are considered perfectly legal. In 2011, there were almost 700,000 of these violent confrontations in New York City alone–and millions more across the country under various names.
When we factor in the hundreds of thousands of unrecorded crimes inside prisons at the hands of inmates and guards, plus the increased daily violence of police forces that are larger, more militarized and more brazen, it’s clear that mass incarceration hasn’t reduced violence, but simply increased the share of it that is directly controlled and supervised by the government for the peace of mind of this country’s rich and powerful.
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The individual most responsible for the New Jim Crow is not a fire-breathing racist Republican, but a Democrat who received significant electoral support from Black America: Bill Clinton, whose eight-year reign in the 1990s saw the prison population double from 1 million to 2 million.
Now that Black people are rebelling in the streets of Ferguson and Baltimore, and Hillary Clinton is running for president, both Clintons want everyone to know that mistakes were made.
Bill recently said that his mass incarceration policies–from shoveling money at states to hire more cops and build more prisons, to expanding the death penalty and the infamous “three strikes” penalty of a life sentence after a third felony conviction–might have “overshot the mark” by putting “too many people in prison and for too long.”
For her part, Hillary has called for an “end to the era of mass incarceration” through increasing mental health and drug treatment programs and pursuing alternative punishments for low-level offenders.
These aren’t bold statements. As always, the Clintons are gauging which way the political winds are blowing, and they’ve noticed that even some Republicans, motivated by rising state budget deficits, have called for reducing prison populations.
It’s pleasant to hear politicians calling for moderation and humanity for those behind bars after decades of racist dehumanization. But we shouldn’t let them get away with claiming that mass incarceration was a well-intentioned crime-fighting policy that simply went too far.
And while we will welcome any and all positive reforms that can chip away at the walls of the New Jim Crow, we should be clear that the politicians like the Clintons have no intention of getting rid of an institution that has made a large section of the working population easier to exploit and control, but instead merely want to make it more palatable–and affordable.
To challenge the incarceration nation will take the same level of popular upheaval that was required to challenge the earlier systems of slavery and Jim Crow. The emergence in recent years of a movement demanding that Black Lives Matter is an important start to that struggle.