The New Jim Crow: Chapter 3 Summary & Analysis

Alexander begins the chapter by recounting the stories of two young African-American parents who were wrongly implicated in a drug bust, and—although neither end up actually being sentenced to prison time—lose their homes, jobs, and children as a result. She emphasizes that these stories are not “accidental,” and that if they were taking place in middle-class white communities would result in public outrage. Yet in some states, 80-90% of those sent to prison on drug crimes are African-American. While the War on Drugs has also resulted in an increase in white people being sent to prison on drug charges, this increase is “dwarfed” by the rate at which African and Latino Americans are put behind bars.

The official explanation for the racial discrepancy in rates of incarceration is that black and Latino Americans simply commit more crime. However, studies have shown that people of all races tend to use drugs at the same rate, and that white youth are in fact more likely to deal drugs than their peers of other races. Although popular culture strongly links the sale of drugs to black communities, in fact people who use drugs statistically tend to buy them from people of their own race, no matter what race that may be.

The racial bias of the criminal justice system cannot be explained by “old-fashioned racism” either, as explicitly racist messages have become taboo within political discourse. Alexander emphasizes that the vast majority of those “under correctional control” are not actually in prison, but on probation or parole. And because mass incarceration—like the rest of American society—is now framed in “colorblind,” race-neutral terms, it can be difficult to prove that it is systematically racist. Alexander argues that part of this difficulty is simply due to people’s refusal to use “common sense” and overstep the glaringly obvious fact that an enormously disproportionate percentage of black and brown people are being locked up and relegated to a permanent “second-class status.”

The deep racism of mass incarceration has been instituted through two broad steps: first, by giving law enforcement “extraordinary discretion” in who and how they approach, and second, by refusing to accept any charges of racism that do not identify a particular racist individual as the source of the problem. Alexander points out that anti-drug policy is particularly likely to be racially discriminatory because drugs are handled in a manner unlike any other crime. When an ordinary crime takes place, the victim (or someone acting on the victim’s behalf) alerts the authorities—the first step in the process of achieving justice. In the case of drugs, there isn’t a victim as such; both the buyer and seller of drugs have no incentive to call the police. Furthermore, most Americans of all races have violated drug laws at least once in their lives, and it would clearly be undesirable to put the majority of the population in prison.

Because drug activity is “consensual” and because so many people use drugs, the police must take a more “proactive approach” in order to prosecute people for drug crimes. Furthermore, police are aware that it would be impossible to arrest every American who uses drugs and that they must therefore make a decision about who to punish for the crime of drug use. Part of the reason why the burden has fallen so squarely on African Americans is because of the association between black culture and drugs that was deliberately created by the media and government during the Reagan years. As a result, ordinary Americans have internalized the racist association between black people and drugs even if they are not consciously racist.

The police are hardly immune from the same bias that has been instilled into the general public, and as a result are likely to act in a racially discriminatory fashion. As a result, advocates of racial justice have argued that the police should not be allowed to exercise so much discretion when it comes to stopping and searching people. However, this has so far been met with little success. Astonishingly, in Whren vs. United States, the Supreme Court ruled that “claims of racial bias could not be brought under the Fourth Amendment,” a ruling that fits into a larger trend of the Court making it virtually impossible to fight racial discrimination within the criminal justice system on constitutional grounds.

Alexander examines the case McCleskey vs. Kemp, in which a black man facing death for shooting a white police officer, Warren McCleskey, protested his sentence on the grounds that racial bias in the criminal justice system violated the Fourteenth and Eight Amendments. Evidence for this claim was provided in the form of 2,000 Georgia homicide records, which showed that those who murdered white people were eleven times more likely to be sentenced to death than those who murdered black people. These statistics were “the strongest [evidence] ever presented to a court regarding race and criminal sentencing”; still, the court narrowly rejected McCleskey’s claim on the grounds that evidence of conscious bias was still required.

Alexander argues that McClesky essentially demonstrated that “racial discrimination… was something that simply must be tolerated in the criminal justice system.” The reason the court provided for this, alarmingly, is that if McClesky’s claim was taken to be valid, it would undermine “the principles that underlie our criminal justice system.” Alexander cites another case in which an 18-year-old black man with no criminal record was sentenced to ten years for the intent to sell crack cocaine. His lawyers protested the hundred-to-one difference in sentencing length for crack versus powder cocaine, arguing that it unfairly discriminates against black people (who are more likely to be convicted for crack). In the past, courts had rejected similar claims on account of the fact that Congress held that crack was more dangerous, also citing the precedent of McClesky vs. Kemp. In this case, however, an African-American judge cited evidence of racial bias in the War on Drugs, and sentenced the young man as if the cocaine had been in powder form. This sentence was then reversed by the Court of Appeals.

Very few challenges to the racism of the criminal justice system have been made since McClesky vs. Kemp, and none have been successful. Alexander moves on to describe the outsized power of prosecutors within the American justice system. She cites a case in which a group of lawyers sought to prove that although crack laws are fair and race-neutral on the surface, prosecutors enforce them in a racially discriminatory manner. The prosecutors in question refused to disclose their records, a decision that was upheld by the court. Therefore prosecutors remain protected from accusations of racial bias, even as studies consistently show that they statistically favor white defendants over non-whites. This discrepancy has shown to be especially severe in drug cases.

Before 1860, no black person is known to have served on a jury in the United States; even after this point, it was legal for the courts to “strike” black citizens from juries, and Southern courts in particular systematically denied black people from serving. Today, African Americans are still frequently prohibited from serving on juries due to “peremptory strikes,” which, although they theoretically aim to make trials more fair, are “notoriously discriminatory” and often result in all-white juries. Black people are regularly dismissed from juries for all kinds of bizarre reasons— importantly, however, none ever mentions race.

Alexander argues that racial bias is at its most harmful within the police. Because police have so much discretion, they exercise an enormous influence over who gets swept up into the criminal justice system in the first place. The police choose to target black ghettoes mostly because poor African Americans have little chance of retaliation, and intense police surveillance and aggression has a devastating effect on those communities. The irony of the War on Drugs is that as soon as one dealer is taken off the streets, he will almost immediately be replaced (often causing a spurt of territorial violence in his wake). The “tough on crime” rhetoric on which politicians have relied for decades is thus nothing more than meaningless “wartime propaganda.”

In 2002, a group of researchers in Seattle concluded that the decisions of the Seattle Police Department tended to be guided by (racist) cultural stereotypes, rather than citizen complaints or medical evidence of which drugs were causing the most harm to the community. The researchers concluded that the Seattle PD were operating according to “a racialized conception of the drug problem.” Although this research might theoretically be used by black and Latino claimants in the courts, it is highly unlikely that this would be a successful venture, as the legal system currently makes it so difficult to make claims of racial bias within the criminal justice system without evidence of consciously racist intent. While separate rules apply to suits for damages, this is largely irrelevant because neither the state nor the police can be sued for damages.

Alexander argues that the “dirty little secret” of American police departments is that the Supreme Court have given them “license to discriminate” based on race. Although racial discrimination is still theoretically forbidden at other points in the criminal justice process, stopping people based on race is in fact perfectly legal—as long as race isn’t the only reason, but simply one “factor.” Numerous studies have shown that police disproportionately target people of color in random stops, despite the fact that whites are statistically more likely to be carrying drugs than non-whites. Racial profiling is thus not only unjust, but ineffective as a policing tactic. Furthermore, stop-and-frisk procedures have been widely described as intimidating and humiliating (not to mention dangerous, with numerous cases involving the assault or death of unarmed individuals by police).

Although there was a “wave” of cases challenging racial profiling in the 1990s, this was brought to a halt in 2001 by Alexander vs. Sandoval, which shut down the last “last remaining avenue available for challenging racial bias in the criminal justice system.” The precedent set by Alexander meant that as long as the state could argue that racial profiling was “necessary” to police work, it would be impossible to challenge. For now, the system of mass incarceration is entirely protected from accusations of racial bias—and hence from change.