Incarceration Rates and Jim Crow Analogies
James Forman, Jr. has a piece up in the forthcoming N.Y.U. Law Review attacking the analogies made between high rates of incarceration and Jim Crow. From the abstract:
But despite its contributions, the Jim Crow analogy ultimately leads to a distorted view of mass incarceration. First, the Jim Crow analogy oversimplifies the origins of mass incarceration by highlighting the role of politicians seeking to exploit racial fears while minimizing other historical factors. Second, the analogy has too little to say about black attitudes towards crime and punishment, masking the nature and extent of black support for punitive crime policy. Third, the analogy’s exclusive focus on the War on Drugs diverts our attention from violent crime — a troubling oversight given the toll that violence takes on low-income black communities and the fact that violent offenders make up a plurality of the prison population. Fourth, the Jim Crow analogy obscures the fact that mass incarceration’s impact has been almost exclusively concentrated among the most disadvantaged African-Americans. Fifth, the analogy draws our attention away from the harms that mass incarceration inflicts on other racial groups, including whites and Hispanics. Finally, the analogy diminishes our understanding of the particular harms associated with the old Jim Crow.
These are all fair points. The analogy is way overblown, makes the issue seem black-white when 21st race relations are a lot more complicated, ignores class and divisions within the African-American community. It also seriously obscures the horror of Jim Crow and exactly what that was like. At the same time, there’s no questioning that the criminal justice system reflects and exacerbates racial inequality. The problem with the analogy is that it is bad history, but it’s also not without some accuracy.
Time to mention this book:
Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II by Douglas A. Blackmon.
Note how the author avoids the use of “Jim Crow” in the title; instead making clear exactly what went on.
I’ve been meaning to blog about that book.
Hmm. This analysis greatly understates the impact of the Drug War and its racism. There’s something called “mass incarceration,” which seems to interest Mr. Forman. And then there’s the explosion in incarceration that began in 1980, when there were 500,000 Americans behind bars. Today there’s something like 2.5 million, and the overwhelming cause of this was the Drug War. The percentage of people locked up for drug crimes shot up from 10 percent to 25 percent of the prison population, and three-quarters of the people who entered prison between 1980 and 2009 (when the violent crime rate went down) were convicted for drug crimes and other non-violent offenses. Right now more than 60 percent of offenders in prison are non-violent. (Or, they used to be.) Overwhelmingly, of course, this disproportionately hurts blacks (and Latinos.)
So in the context of this disgrace, this humanitarian catastrophe, I’m not sure it’s relevant that (surprise!) black people hate murder and murderers just as a much as white people do, because the drug war is the reason an obscene, morally unacceptable number of black men are caught up in the injustice system. (The other major reason is poverty, so it’s racism any way you slice it.)
Does racism drive the drug war? Well, at a certain point, it doesn’t matter, because it’s certainly racism that allows it to continue. Jim Crow or no, you could hardly come up with a better vehicle in 2011 for subjugating and oppressing blacks, and I haven’t even gotten into the militarized policing that it entails.
It’s a damning indictment of our system that violent offenders are only the plurality of people in jail. In a reasonable system, they’d be a the super-majority of people locked up and most of the remainder would be hardcore white collar criminals.
White male/female has a gram+ of coke = not much of a problem.
But if you were any other shade in the national Crayola box, and had a small rock or two of crack = you were FUCKED!!!
Dealing in powdered cocaine?
Bad boy/girl!
Dealing in crack?
Make an example of that N*gger/Spic!
Our sentencing structure should be a national joke. Except there’s nothing funny about it. Unless you’re rich.
Unless you”re white.
Unless you the son/daughter of privilege. And that’s the ONLY time color doesn’t matter. Equality begins at the top 1%!
1) I pretty much agree with Forman, especially at the end of the quote. The most material aspect of Neo (or whatever) Jim Crow has to do with social goods provision. In a sense, redlining, in various guises, is far more of an emergency than incarceration to the point that it *drives* high incarceration rates.
2) Jim Crow was not purely about race, however much it *was* about racial distinctions. It can be rigorously argued that the primary aim of such programs run under Jim Crow is to interfere with lower class white people’s ability to better themselves through alliances with other social groups. Also, the fact that Jim Crow policies were in place in what were, in all true senses, police states, should not be ignored. Denying black people rights had the intended effect of denying white people’s rights in favor of tiny oligarchies. Many white people lost their land and their voting rights to the exact same laws.
This is satire, right? Because it appears that you are arguing that the true victims of Jim Crow were… white people.
Wouldn’t the right to vote (grandfathered in) the right to bear arms – the right to sit on a duty and the chance to get a jury of your peers give a white share cropper quite valuable advantages compared with a black sharecropper?
/me wishes for better commentary…
Or at least *someone* with a historical clue.
One more time…
Systematic Racism is a tactic designed to extract wealth.
Who has it? Generally white people. Torturing and humiliating non-whites are not an end unto itself. Reinforcing and propagating a system that enables and protects plutocratic rule is the ultimate end, and yeah racism is really bad for white people too, if not of a certain class. Just because you have a shack, not expected to work in the fields, and own a few pieces of stitched clothing, doesn’t mean that you ain’t horribly off. The fact that the N* down the street has less is supposed to compensate you for seeing that your kids don’t really have enough to eat.
People fled the South, for ages, and the reasons why don’t tend to be so fucking dissimilar, white or black. The misapprehensions that Forman is so against are crucial tools to perpetuate racial injustice via desympathization through affiliation of the term: victims. People like power, after all, and don’t sympathize with losers.
So, yes, the true targets (not “victims” apparently) of Jim Crow were white people. Good to know.
FYI, the class-based analysis (to which I’m generally sympathetic) really falls down here. Yes, all of what you’re saying is true, but wow, if you don’t start with systematic re-enslavement by legal traps, lynching, beating, rapes, murders, and disenfranchisement as being WORSE than what white people experienced, you’re really in weird territory.
You really are stupid, aren’t you? Or at the very least, not inclined to read anything closely…
Sha8 isn’t arguing that poor white people were bigger victims than black people under Jim Crow. He’s saying that the ruling class bought off poor whites by tormenting blacks.
Yeah, I would think that is what shah8 is saying too, but he/she/it is doing a piss-poor job at actually saying that and then is complaining about how I can’t read his/her/its crappy prose.
See, I would think that shah8 is trying to make a more highbrow argument of the sort that Howard Zinn makes, but he/she/it keeps writing things that tend to indicate how it’s really the whites who are the targets of the brutal oppression of blacks.
But, hey, I’m clearly the idiot for failing to understand shah8′s piss-poor writing style and emphasis on the effect of Jim Crow on white people in response to a point-blank question about what point they were making.
And now, you’re explaining to everyone about why you’re not responsible for making a cogent argument.
Cool.
At the same time, there’s no questioning that the criminal justice system reflects and exacerbates racial inequality. The problem with the analogy is that it is bad history, but it’s also not without some accuracy.
I don’t think there’s any doubt that Forman knows this. He spent a decade as a public defender (D.C. PDS, easily one of the best and most zealous PD offices in the country), and he’s been a consistent and vocal critic of mass incarceration and its component evils (the war on drugs, etc.). He’s not shy about denouncing the institutionalized racism of the criminal legal system in very strong and specific terms.
So we should probably read his argument here as a piece of constructive criticism about strategy. I think he’s talking chiefly to activists on our side of these issues (public defenders, prisoners’ rights advocates, etc.), in an effort to make us grapple with some of the more difficult nuances of these problems, so that we can actually fight those problems more effectively.
Just to give one concrete example: Forman readily denounces the war on drugs as an unmitigated disaster. At the same time, Forman argues that the war on drugs alone doesn’t account for our country’s mass incarceration problem. If you want to tackle mass incarceration, you need to find new ways to address even those crimes (burglary, armed robbery, etc.) that basically everybody agrees should remain criminalized: you can’t expect to fix the whole problem by legalizing the drug trade. That doesn’t mean we shouldn’t fix the war on drugs–it just means that we have a lot of other, harder problems left to fix, too.
Well if strategy is the concern, opposition to the WOD is a lot wider and deeper than opposition to “mass incarceration.” Indeed, the best way to begin to tackle the problem of mass incarceration may be to target the War on Drugs.
I am going to just say that I disagree on your link between the WOD and mass incarceration. The WOD is so damn harmful that if you ended it, you would effectively end mass incarceration (depending on how you define it of course). But the point is that the WOD creates an environment where other types of violent crime flourish that people would never associate with drug use or the drug trade.
Nuances?
90% of the difficult with solving the problems in this country is that the people who should be solving problems are dealing with “nuances.” Republicans don’t have that issue; is tax policy “nuanced?” Hell yeah, but it’s simple for them – low taxes are always better.
The WOD makes it simple: it sentences victimless offenders to a lifetime of consequences for something that’s different that buying a shot of whiskey because *hey look! Halley’s comet?* And it costs us a ton of money.
Our jails are overpopulated because we’ve allowed vastly more black and hispanic citizens to get ground up in our criminal justice system. Do you disagree? Then why are you a racist bigot?
Those should be the ONLY MESSAGES. The only
“nuance” should be whether an opponent is a conscious racist bigot, or a subconscious racist bigot.
As William Stuntz points out in his recent book The Collapse of American Criminal Justice, one major reason that so many people are sent to prison is the increasing power and discretion of prosecutors and the corresponding weakness and lack of discretion of judges and juries. If justice were more democratic on a local level, we can be sure that citizens would not tolerate a system that sent so many of their neighbors and relatives up the river. Stuntz doesn’t put it this way, but in effect we’re moving from Common Law justice to something much more like the ancient Chinese system in which juries are simply triers of fact and judges only decide procedural matters while penalties follow automatically from rigid rules.
The incentives for prosecutors are perverse. They get credit for convictions, but aren’t penalized for the resulting costs to society of so much incarceration. It doesn’t help that they are essentially above the law themselves. Sending a few DAs to Attica might improve the situation. On the anecdotal evidence, plenty of them are guilty of a lot more than possession with intent to distribute.
But most penal law systems without a jury – most of europe – or a restricted use of jury – Great Britain – have a lot lower incarceration rates.
I think most of those systems also don’t have elected chief prosecutors and elected judges.
Yes, and that means, that this assumption:
doesn’t seem to be right either.
Stuntz pointed out that most elections are dominated by suburban voters who don’t have an existential interest in the fate of defendants, who aren’t their kind of people. (it’s the late William Stuntz, by the way. He died this spring.) When Stuntz talked about local, he meant local, harking back to the days when urban politics was a precinct by precinct operation.
I don’t think juries are necessarily the key problem in any case, though I agree with Stuntz that a little more jury nullification would be a good thing. The overarching problem is the tendency of our system to replace justice with administration.
How is it possible for any relevant jurisdiction to have “local” judges and juries the way Stuntz talks about it? Unless I’m badly mistaken, proportionately most of the crime is occurring in urban areas with hugely populated counties. I’m not seeing how we get from million-member jury pools down by two zeros.
These are all points addressed by Alexander. Does Foreman respond to her arguments?
FWIW, it’s also important to remember that the argument doesn’t rely on incarceration alone, as things like the stop and frisk regime that are even more racially targeted and affect far more people than incarceration itself.