an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Martin Luther King Day Reflections on Michelle Alexander's "The New Jim Crow"
A map called "Architecture and Justice" was one of the most chilling displays at MOMA's Design and the Elastic Mind show a few years ago. One could watch in real time as a red dot--representing a person--was swept from one of New York City's poorer boroughs and "landed" in an upstate prison.
Part of the mapping project is called "Million Dollar Blocks," because annual imprisonment costs of some city blocks exceed $1 million. In those places, "on a financial scale, prisons are becoming the predominant governing institution in the neighborhood." Certainly the 14,000 residents of Brownsville, Brooklyn may feel that way, enjoying about 6,000 police stops a year for "furtive movement" or "other" unspecified behavior. As the NYT reports, "in each of those encounters, officers logged the names of those stopped — whether they were arrested or not — into a police database." And there are many crimes to solve---as Sen. Jim Webb has noted, "With 5% of the world's population, our country now houses nearly 25% of the world's reported prisoners."
After years of working on issues of racial profiling, police brutality, and drug-law enforcement in poor communities of color as well as working with former inmates struggling to "re-enter" a society that never seemed to have much use for them, I began to suspect that I was wrong about the criminal-justice system. . . . Quite belatedly, I came to see that mass incarceration in the United States has, in fact, emerged as a comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow. [emphasis added]
Alexander offers some striking statistics to justify her conclusion:
There are more African Americans under correctional control today -- in prison or jail, on probation or parole -- than were enslaved in 1850, a decade before the Civil War began. As of 2004, more African American men were disenfranchised (due to felon disenfranchisement laws) than in 1870, the year the Fifteenth Amendment was ratified, prohibiting laws that explicitly deny the right to vote on the basis of race.
A black child born today is less likely to be raised by both parents than a black child born during slavery. The recent disintegration of the African American family is due in large part to the mass imprisonment of black fathers. If you take into account prisoners, a large majority of African American men in some urban areas have been labeled felons for life. (In the Chicago area, the figure is nearly 80%.) These men are part of a growing undercaste -- not class, caste -- permanently relegated, by law, to a second-class status.
If the US had extreme crime rates, perhaps we could consider this situation acceptable. But we don't (except, perhaps, in the financial sector, where imprisonments are few and far between). Alexander explains that this extraordinary growth of incarceration arises in large part from a racialized drug war:
Crime rates have fluctuated over the last few decades -- they are currently at historical lows -- but imprisonment rates have consistently soared. Quintupled, in fact. And the vast majority of that increase is due to the War on Drugs. . . . This war has been waged almost exclusively in poor communities of color, even though studies consistently show that people of all colors use and sell illegal drugs at remarkably similar rates. In fact, some studies indicate that white youth are significantly more likely to engage in illegal drug dealing than black youth. Any notion that drug use among African Americans is more severe or dangerous is belied by the data. White youth, for example, have about three times the number of drug-related visits to the emergency room as their African American counterparts.
As Michael Pinard has explained, the collateral consequences of a drug conviction can quickly snowball into a life of missed opportunities and desperation. (American institutions are quite accomplished at setting such "death spirals" into motion.) The prison industry is not shy about promoting policies that add to its profits.
Alexander concludes that we must do better:
As a nation, we have managed to create a massive system of control that locks a significant percentage of our population -- a group defined largely by race -- into a permanent, second-class status. This is not the fault of one political party. It is not merely the fault of biased police, prosecutors, or judges. We have all been complicit in the emergence of mass incarceration in the United States. In the so-called era of colorblindness, we have become blind not so much to race as to the re-emergence of caste in America. We have turned away from those labeled "criminals," viewing them as "others" unworthy of our concern. Some of us have been complicit by remaining silent, even as we have a sneaking suspicion that something has gone horribly wrong. We must break that silence and awaken to the human-rights nightmare that is occurring on our watch.
Thankfully, more voices are recognizing the problem. Bernard Harcourt's Illusion of Free Markets shows how skyrocketing imprisonment rates reflect and reinforce fashionable economic nostrums of the bien pensant, think tank class. Mike Konczal is bringing Harcourt's insights to a wider audience. I have tried to get the word out about Loic Wacquant's and Robert Perkinson's work. Many books have discussed the racial dimensions of America's extraordinary levels of imprisonment. It's impossible to ignore the problem any more. Especially today, we must recognize work like Alexander's as part of a worthy tradition that includes Dr. King--but cannot end with him.