Michelle Alexander, a renowned author, civil rights attorney, and prison-reform advocate, delivered this keynote address on May 26 at “Edges of Justice,” an event held by the American Friends Service Committee in San Francisco. Only three days before, on May 23, the U.S. Supreme Court ordered California to greatly reduce its prison population after ruling that the state’s prison system was so overcrowded that it amounted to “cruel and unusual punishment.”

Alexander is the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness. She is the former director of the Racial Justice Project of the American Civil Liberties Union of Northern California, and an associate professor of law.

This speech was originally published in the June issue of Street Spirit, which can be purchased from street vendors in the San Francisco Bay Area, or read online here.

 

Thank you so much for that warm welcome and introduction and for having me here. I just couldn’t be more delighted to be supporting the work of this phenomenal organization dedicated to the values that I hold dear; that respects and honors the dignity and humanity of all people, no matter who they are or what they have done.

I believe that we are at a potential turning point in our history today. There is a moment of opportunity today that hasn’t existed for decades. An economic crisis that is afflicting states large and small is creating a space in which, for the first time in a long, long time, people are actually willing to entertain the possibility of major criminal-justice reform.

If the Supreme Court’s ruling is any indication — and you know it’s bad when the Supreme Court actually rules in your favor [laughter] — there is a moment of opportunity to sort of burst through in terms of advocacy and movement-building today.

I think the question is whether those of us who care deeply about these issues will succeed in persuading others to join us in building a movement that will push past this moment of interest convergence, this moment when right-wing folks who are attempting to balance budgets without raising taxes suddenly find their interests aligned with the interests of poorer people of color and those cycling in and out of the prison system. The question for us today is whether this moment of opportunity will create the space for us to birth the kind of movement that will end mass incarceration as we know it in the United States.

Now, in my view, whether or not this moment of opportunity slips by without the type of large-scale change, truly transformative change, that I believe is possible and necessary, whether that happens turns in no small part on whether we as a nation come to grips with the caste-like system that has been reborn in America and the racial dynamics that have produced it. Many people today are arguing that we ought not make it a race issue, that we ought not talk about race in our advocacy for fear of alienating our potential allies at a time of great opportunity for criminal-justice reform.

But I fear that if we heed that advice, we will wind up actually reinforcing the very habits of thought that birthed mass incarceration and we will not have disturbed the attitudes and assumptions that sustain it. I believe in the years since Martin Luther King Jr.’s death, our nation took a tragic U-turn. We lost our way and betrayed his dream. While so many at that time were committed to marching the path of hope, inclusion and equality, there was a backlash that was brewing, one that would result in millions of Americans permanently locked up and locked out.

That backlash manifested itself as the war on drugs, the get-tough movement, politics of racial division that birthed a penal system unparalleled in world history. The systematic mass incarceration of poor people, particularly poor folks of color, has emerged as a new caste system, one specifically designed to address the social, political, and economic challenges of our time. It is the moral equivalent of Jim Crow.

Now, there was a time when I rejected this kind of talk. I thought people who made comparisons between mass incarceration and Jim Crow, or mass incarceration and slavery, were exaggerating or engaging in distortions and hyperbole, and I actually thought that people who made those kinds of claims were doing more harm than good to efforts to reform the criminal-justice system and achieve greater racial equality in the United States.

 

Jim Crow and criminal justice

But what a difference a decade makes, because after years of working as a civil-rights lawyer representing victims of racial profiling and police brutality and investigating patterns of drug law enforcement in poor communities of color and attempting to assist people re-enter society after being released from prison, I had a series of experiences that began what I call my awakening. I began to awaken to a racial reality that is so obvious to me now that what seems odd, truly strange, in retrospect, is that I had managed to be blind to it for so long.

Now there were a number of experiences that helped to inspire my awakening and a tremendous amount of research as well, but ultimately I came to the conclusion that what has changed since the collapse of Jim Crow has less to do with the basic structure of our society than the language we use to justify it. In the era of colorblindness, it is no longer socially permissible to use race explicitly as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal-justice system to label people of color criminals and then engage in all the practices we supposedly left behind.

Today it is perfectly legal to discriminate against criminals in nearly all the ways it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination — employment discrimination, housing discrimination, denial of the right to vote and exclusion from jury service — are suddenly legal. As a criminal, you have scarcely more rights and arguably less respect than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America, we have merely redesigned it.

More African Americans are in the correctional control system today, in prison or jail, on probation or parole, than were enslaved in 1850, a decade before the Civil War began. In 2004, more black men were disenfranchised than in 1870, the year the 15th Amendment was ratified, prohibiting laws that explicitly deny the right to vote on the basis of race. Now during the Jim Crow era, of course, poll taxes and literacy tests operated to keep black folks from the polls. Well, today, federal disenfranchisement laws accomplish in many states what poll taxes and literacy tests ultimately could not.

A black child born today has less of a chance to be raised by both parents than a black child born during slavery. Now, this is due in large part to the mass incarceration of black men. There was an article published about this in the Economist magazine, of all places, entitled, “How the Mass Incarceration of Black Men Harms Black Women.” In the article, it explained that the majority of black women in the United States, including about 70 percent of professional black women, are unmarried and that this is due largely to the mass incarceration of black men, which takes them out of the dating pool in the years they would be most likely to commit to a partner, to a family.

 

Black families are decimated

But what’s worse is that by branding them criminals and felons, often at early ages, they are rendered permanently unemployable in the legal job market, for the most part, virtually guaranteeing that most of them will cycle in and out of prison, sometimes for the rest of their lives. In this way, mass incarceration has decimated black families to a degree comparable to slavery.

This is not a phenomenon that affects just some small sliver of the African American community. No, in many major urban areas, the majority of working-age, African American men have criminal records and are thus subject to legalized discrimination for the rest of their lives.

It was reported in 2002, that in the Chicago area, if you take into account prisoners — who are excluded from poverty statistics and unemployment data, thus masking the severity of racial inequality in the United States — but if you take into account prisoners, nearly 80 percent of working-age, African American men have criminal records and are thus subject to legalized discrimination for the rest of their lives. These men are a growing part of an undercaste — not class, caste — a group of people defined largely by race who are relegated to a permanent second-class status by law.

I find that when I tell people that I think mass incarceration is like a new Jim Crow, they say, “What are you talking about, you know our criminal-justice system isn’t a system of racial control. It’s a system of crime control. You know, if black folks would just stop committing so many crimes, they wouldn’t have to worry about being locked up and locked out, stripped of basic civil and human rights.”

But, of course, therein lies the greatest myth about mass incarceration; namely, that it has been driven by crime rates, which is not true.

 

Prison population has quintupled

Our prison population has quintupled in the space of about 30 years for reasons that have stunningly little to do with crime or crime rates. Crime rates have fluctuated over the past 30 years, gone up, gone down. Today, as bad as they are in some parts of the country, crime rates are actually at historical lows, but incarceration rates, especially black incarceration rates, have consistently soared. Most criminologists and sociologists acknowledge that crime rates and incarceration rates in the United States have moved independently of one another. Incarceration rates have soared regardless of whether crime is going up or down in any given community or the nation as a whole. 

So what explains the explosion in incarceration rates and black imprisonment, if not crime rates? Well, the answer is the war on drugs and the get-tough movement, the wave of punitiveness that washed over the United States. In fact, drug convictions alone accounted for about two-thirds of the increase in the federal system and more than half of the increase in the state system between 1985 and 2000, a period of our prison system’s most dramatic expansion. Drug convictions have increased more than 1,000 percent since the drug war began. In fact, there are more people in prison and jail today just for drug offenses than were in prison for all reasons in 1980.

Now, most Americans violate drug laws in their lifetime, but the enemy has been racially defined. Not by accident, the drug war has been waged almost exclusively in poor communities of color even though studies have shown now for decades that, contrary to popular belief, people of color are no more likely to use or sell illegal drugs than whites. In fact, more significant differences in the data can be found that suggest that white youth are more likely to engage in illegal drug dealing than black youth, but that’s not what you would guess by taking a peek inside our nation’s prisons and jails, which are overflowing with black and brown drug offenders. In some states, 80 to 90 percent of all offenders sent to prison have been African American.

People often try to rationalize this result by arguing that the drug war has benign motives; that it makes sense to concentrate on poorer communities of color in waging the war because that’s where the violent offenders and the drug kingpins can be found. Most people seem to imagine that the war on drugs was declared in response to the emergence of crack cocaine in inner-city communities and the related violence. That’s not true.

 

Reagan’s war on drugs

President Ronald Reagan declared his drug war in 1982 at a time when drug crime was actually on the decline, not on the rise. It was before, not after, crack began to ravage inner-city communities and became a media sensation. President Richard Nixon was the first to coin the term “war on drugs,” but it was President Reagan who turned that rhetorical war into a literal one. At the time he declared the drug war, drug crime was actually on the decline, not on the rise. Less than 2 percent of the American population even identified drugs as its most pressing concern.

So why would the Reagan administration declare a drug war when people weren’t much concerned about it and drug crime was on the decline? Well, because the drug war from the outset had relatively little to do with actual concern about drug crime or drug addiction or drug abuse, and nearly everything to do with politics, racial politics. U.S. historians and political scientists have now documented that the war on drugs was part of a grand political strategy by the Republican Party — known as the “Southern Strategy” — of using racially coded, get-tough appeals on issues of crime and welfare to appeal to poor and working-class whites, particularly in the South, who were threatened by, anxious about, resentful of, many of the gains of African Americans in the civil rights movement.

Now, to be fair, I think we have to acknowledge that poor and working-class whites in the South really had their world rocked by the civil rights movement. Wealthy whites could send their kids to private schools and give their kids all of the advantages that wealth had to offer. But poor and working-class whites, folks who were struggling for survival, they were faced with a social demotion.

It was their kids who might potentially be bussed across town or subjected to desegregation  orders. It was their kids who would be forced to compete on equal terms for scarce jobs with a whole other group of people they had been taught their whole lives to believe were inferior to them. And to make matters worse, affirmative action plans created the perception that black folks were now leapfrogging over them on their way to Harvard or Yale and to other opportunities. This created an enormous amount of anger, frustration, resentment, and anxiety, and it also created an enormous political opportunity.

Pollsters and political strategists found that by using thinly veiled promises to get tough on “them” — a group not so subtly defined as black and brown — it was enormously successful in persuading poor and working-class white voters to defect from the Democratic New Deal coalition and join the Republican Party in droves.

H.R. Haldeman, President Nixon’s former chief of staff, explained the strategy this way: “The whole problem is really the blacks. The key is to devise the system that recognizes this while not appearing to.” Well, they did it. A couple years after the drug war was announced, crack hit the streets in inner-city communities and there were many people in the African American community who thought it was a little bit too much of a coincidence that crack would appear after, rather than before, a drug war was declared.

 

Reagan’s media scare tactics

But coincidence or not, the Reagan administration seized on this with glee, actually hiring staff whose job it was to publicize and feed the media stories of inner-city crack babies and crack dealers and so-called crack whores and crack-related violence in the hopes that crack would become a media sensation and bolster public support for a drug war they already declared — and persuade Congress to devote billions more dollars to waging it. And the plan worked like a charm, almost overnight. 

Television sets were saturated with images of black and brown drug users and dealers and a wave of punitiveness washed over the Unites States. Soon Congress was passing harsh minimum sentences for minor drug offenses, harsher than murders receive in other western democracies, and Democrats began competing with Republicans to prove they could be even tougher on “them” than their Republican counterparts.

So it was President Bill Clinton who escalated the drug war far beyond what his Republican predecessors even dreamed possible. It was the Clinton administration that championed laws banning drug offenders even from food stamps for the rest of their lives, banning drug offenders from public housing and authorizing discrimination against people with criminal records for the rest of their lives, denying even federal financial aid for schooling to people who were once caught with drugs.

Many of the laws that now constitute the basic architecture of this new caste system were championed by a Democratic administration desperate to win back those so-called white-swing voters, the Reagan Democrats, the folks who had defected from the Democratic Party in the wake of the civil rights movement.

So here we are, decades later, with millions of people cycling in and out of prison, because of the get-tough movement and a drug war born of our nation’s racial divisions and anxieties. And we created a caste-like system for those who are released.

 

Denial of voting rights

Consider some of the rules and laws that apply to people who have been branded criminals and felons and ask yourself if they remind you of a bygone era. Obviously, the denial of the right to vote, you know, 48 states and the District of Columbia deny prisoners the right to vote, but that’s just the tip of the iceberg, because once you’ve been released, you can be denied the right to vote for a period of years or the rest of your life.

Exclusion from jury service — one of the hallmarks of the old Jim Crow era was all-white juries, particularly in the South. Well, today in many parts of the country, all-white juries are having a roaring comeback. Why? Because once you’ve been branded a felon, you’re deemed ineligible for jury service for the rest of your life, and to make matters worse, if you have ever had a “negative experience with law enforcement,” you can be struck from a jury for cause. Now, good luck finding many African Americans who have not yet had a negative experience with law enforcement that would justify their exclusion from a jury for cause. In this way, all-white juries have been having a roaring comeback even in areas that are highly racially diverse.

Then, there is employment discrimination. Nearly every job application has that box you’ve got to check asking the dreaded question: Have you ever been convicted of a felony? It doesn’t matter if that felony happened three weeks ago or 35 years ago, for the rest of your life you’ve got to check that box knowing full well your application is likely headed straight for the trash.

Housing discrimination — perfectly legal. In fact, when you are released from prison you’re barred from public housing and your family risks eviction if they allow you to come home. So here you are released from prison, desperate to see your children, desperate to go home, they’re living in public housing and you are barred by law from going home. Where do you go?

Discrimination of public benefits — perfectly legal. In fact, by federal law, thanks to the Clinton administration, you’re barred from food stamps for the rest of your life if you’re a drug offender. Fortunately, many states have opted out of the federal ban on food stamps, but there are thousands today who still can’t even get food stamps to survive because they were once caught with drugs.

What do we expect folks to do when they’re released from prison? You can’t get a job, you’re barred from housing, even food stamps may be off limits to you. Apparently what we expect them to do is to pay hundreds or thousands of dollars in fees, fines, court costs, accumulated child support — which continues to accrue while you’re in prison — and in a growing number of states, you’re expected to pay back the cost of your imprisonment.

And, get this, if you are one of the lucky few who actually manages to get a job, up to 100 percent of your wages can be garnished, 100 percent to pay back those fees, fines, court costs, accumulated child support. What do we expect folks to do?

What is the system designed to do? It seems it’s designed to send folks right back to prison — which is what happens the vast majority of time. Most people released from prison return at some point and the majority of those who do, do so in a matter of months because the challenges associated with mere survival on the outside are so immense.

 

Building a movement for change

So what do we do now? What do we do now that we have millions of people cycling in and out of prison, locked up and permanently locked out? A system that was birthed of our nation’s racial divisions and anxieties and that has been sustained by the unconscious and conscious beliefs in stereotypes we have about “them.” My own view is that nothing short of a major social movement has any hope of ending mass incarceration in America.

We are going to have to build a movement, one that is not color-blind, but color-conscious and compassionate to those who have been branded disposable and unworthy in large part because of the color of their skin.

If we were to go back to the rates of incarceration we had in the 1970s, before the war on drugs and the get-tough movement kicked off, we would have to release four out of five people who are in prison today — four out of five. A million people employed by the criminal-justice system would lose their jobs. Private prison companies would be forced to watch their profits vanish.

This system is not going to just fade away entirely without some kind of major shift, a dramatic shift in public consciousness. Now, how do we get this movement really rolling and seize this moment of opportunity that’s been created by an economic crisis? Well, I think it must first begin by telling the truth, the whole truth, about what we as a nation have done. We have got to be willing to admit out loud that we have in fact rebirthed a caste-like system in America. And we have got to be willing to embrace all those who have been labeled criminals and build the equivalent of an underground railroad to help them as they’re striving for freedom.

People returning home from prison must be given the compassion, help, support so they can get jobs, get a roof over their head, get the loving care and support they need to get back on their feet and have a shot at reuniting with their families and reclaiming their lives again. So that’s work that we’ve got to do, one by one, for people returning home from prison, in our churches, in our community centers, in our mosques, in our schools, opening doors as people are coming home and trying to save them one by one.

But just like in the days of slavery, it wasn’t enough to build an underground railroad and try to free slaves one by one. People had to be willing to work for abolition. Today it’s not enough to help people with re-entry, just to try to get a few people food and shelter and clothing when they need it. We have got to be willing to do the hard work of movement-building to end this system of mass incarceration as a whole.

We’ve got to ensure that it is a multiracial, multiethnic movement that includes poor and working-class whites, a group that has consistently been pitted against poor folks of color, triggering successive new systems of racial and social control.

This drug war was born with black folks in mind, but it has destroyed the lives of people and communities of all colors. And the divide-and-conquer politics that birthed the system, we can see it played out in the immigration issue, as a prison-building move is under way to house suspected illegal immigrants.

So we have got to be willing to connect the dots between the discrimination and repression of people of all colors, in order to ensure that this movement that we build actually prevents the emergence of new caste-like systems in the future.

But before such a movement can even get under way, a great awakening is required. We’ve got to awaken from this color-blind slumber and denial that we’re in to the realities of race in America; and we’ve got to embrace those labeled criminals, not necessarily all their behavior, but them, their humanness, for it has been the refusal and failure to recognize the dignity and humanity of all people that has formed the sturdy foundation for every caste system that has ever existed in the United States or anywhere else in the world.

It is our task, I firmly believe, to end, not just mass incarceration and not just the war on drugs, but to end this history and cycle of caste in America.