The New Jim Crow: Mass Incarceration in the Age of Colorblindness

Alexander details the structure of the US criminal justice system, emphasizing drug crimes because those are most responsible for the massive increase in the number of Americans affixed with the prison label. She dispels two major myths about the War on Drugs, both of which proliferated largely due to cop shows like Law and Order. The first is that the War on Drugs predominantly targets big drug “kingpins” as opposed to low-level dealers. On the contrary, in 2005 four out of five drug arrests weren’t for dealing at all; they were for simple possession. The second myth is that the War on Drugs is focused on removing the most dangerous drugs off the streets, like heroin and cocaine. Marijuana possession, however, was responsible for almost 80% of the increase in drug arrests during the 1990s.

The “point of entry” (77) into the system of mass incarceration is the police, and therefore Alexander begins her discussion there. During the drug war, she writes, the Supreme Court has eviscerated many of the Fourth Amendment’s protections against unlawful searches and seizures. The judicial assault against the Fourth Amendment has been so intense that Thurgood Marshall once reminded his fellow justices that the US Constitution does not include a “drug exception” (78). As a result, the police are empowered to search an individual’s body or property on only the vaguest of suspicions. The courts have also adopted an extraordinarily permissive view of the use of pretext stops, in which the police pull over a driver for minor traffic violations to search a vehicle for drugs. Moreover, the courts have found that if an individual provides even implicit consent to be searched, that person may be searched for any reason at all, no pretext necessary.

Amid this permissive legal environment surrounding searches, police are trained to spot potential drug suspects through a highly discriminatory Reagan-era program known as Operation Pipeline. Aside from resulting in a disproportionate number of people of color falling victim to police stops, Pipeline guidelines are notoriously ineffective. Alexander cites research showing that 95% of Pipeline stops do not uncover illegal drugs. In fact, a full 99% of stops carried out by federally funded drug task forces lead to no citation at all.

The mere fact that the police can stop and arrest such a massive number of Americans for minor drug infractions does not explain why they do it. Initially, the police were perplexed as to why the federal government wanted to divert police resources to this end and away from locking up murderers and rapists. To answer this question, Alexander points to how Reagan and his successors designed the War on Drugs. To create incentives for participation in the drug war, Reagan authorized massive cash grants to state and city police departments under the Edward Byrne Memorial State and Local Law Enforcement Assistance Program. The Pentagon also handed millions of dollars’ worth of military weaponry, intelligence, and technology to departments willing to play their part in the War on Drugs. Perhaps the most visible—and often the most tragic—manifestation of the militarization of police is the increased use of SWAT teams. Initially intended to address active shooters or hostage situations, SWAT teams are now routinely—and, in some jurisdictions, exclusively—used to serve drug arrest warrants. SWAT team drug raid deployments increased from a few hundred a year in 1972, to 3,000 in the early 1980s, to 30,000 in 1996, and to 40,000 in 2001. Dozens are killed in these raids—many of them innocent—and countless others are traumatized.

Other incentives include the fact that the Reagan administration allowed state and local police departments to keep 80% of whatever cash or assets were seized during a drug investigation. As a result, “Law enforcement gained a pecuniary interest not only in the forfeited property, but in the profitability of the drug market itself” (99). In practice, the connection between an asset and the drug trade may be extraordinarily remote for that asset to seized. Homes, cars, and other property are routinely seized on unfounded suspicions, requiring the victim to hire an expensive lawyer to recover these assets. Given that roadblock, it is little wonder that 80% of civil asset forfeiture claims are uncontested. Moreover, the so-called “kingpins” who are presumably the target of the drug war frequently trade expensive assets to earn their freedom. This isn’t to say police have a strong incentive to go after kingpins because of this. On the contrary, the data shows that many small seizures are more profitable to police departments than a few large seizures. Although the Civil Asset Forfeiture Reform Act of 2000 alleviated some of the most blatant misuses of asset forfeiture, Alexander says the law needs to go much further.

While these financial incentives are undoubtedly attractive to police departments, Alexander also attributes their participation in the drug war to broader cultural and political shifts. She writes, “When politicians declare a drug war, the police (our domestic warriors) undoubtedly feel some pressure to wage it” (105). Moreover, Alexander suggests that such financial incentives may no longer be necessary, given the extent to which the culture of the drug war is fully ingrained in police departments across the country.

Alexander next discusses what happens after a person is arrested as a drug suspect. Although all suspects are entitled to legal representation, tens of thousands of people enter prisons annually without speaking to a lawyer, pressured by prosecutors to accept punitive plea bargains. Even those who do speak to a lawyer tend to do so for mere minutes. This is an unfortunate consequence of the fact that properly funding public defender offices is a low priority in the tough-on-crime drug war.

Given the preponderance of mandatory minimum sentences, power in sentencing has shifted from its rightful place—judges—to prosecutors, who dangle plea deals in front of suspects if they are willing to implicate themselves or others. Alexander further argues that this is the real objective of mandatory minimum sentences: to serve as a threat that prosecutors may exploit with stunning discretion to win drug convictions in colossal numbers without ever going to trial. For cases that do go to trial, judges are no longer empowered to hand down lenient sentences to nonviolent first-time defendants or those struggling with addiction.

Yet Alexander also emphasizes that revising sentencing guidelines is not enough to address the new racial caste system. Though reduced sentences would undoubtedly alleviate suffering, the reason the caste system persists is the “prison label,” which saddles people convicted of felonies with a lifelong badge of dishonor that often prevents them from obtaining housing or a job. Given those prospects, it makes sense that parolees often find themselves back in prison. In fact, according to Alexander, “In 1980, only 1 percent of all prison admissions were parole violators. Twenty years later, more than one-third (35 percent) of prison admissions resulted from parole violations” (119).