If you’re trying to get a handle on the race-based assault on law enforcement, unfortunately, you must acquaint yourself with Michelle Alexander and The New Jim Crow: Mass Incarceration in the Age of Colorblindness.. Published in paperback in 2012, the book is now in its eighteenth printing with a new foreword by Cornel West. In his foreword, West declares it “the secular bible for a new social movement.” This he believes.
What social movement is West talking about? It’s the one we’ve seen on display in Ferguson and Baltimore and elsewhere across the United States over the past year. It’s a social movement that has taken root in the White House and the Department of Justice.
Alexander’s book represents the state of the art in the assault on law enforcement in the name of racial disparities. The American Civil Liberties has placed itself at the heart of this movement for at least 20 years. As with David Harris, whom I discussed in part 2 and part 3 of this series, Alexander’s work on the issue originated in her work for the ACLU; Alexander served as director of the ACLU’s Racial Justice Project in northern California.
Alexander now pursues her assault from within the academy as an associate professor of law at Ohio State University. She holds a joint appointment at the Kiran Institute for the Study of Race and Ethnicity. She clerked for Abner Mikva on the DC Circuit Court of Appeals and for Harry Blackmun at the Supreme Court.
As you might expect given her background and her appointments, the book comes in a scholarly wrapping. It footnotes assertions of facts and data with citations to sources in the traditional style of legal scholarship, but the footnotes frequently fail to support the text. Moreover, and more to the point, basic scholarship that contradicts her theses goes missing. Following David Harris’s tack in Profiles In Injustice, Alexander’s scholarship is a pretense.
Alexander’s husband — Carter Mitchell Stewart — is an Assistant United States Attorney. As such, he has first-hand experience in the operation of the criminal justice system. If one were to take the book seriously, one would conclude that Alexander’s husband is instrumental to “the new Jim Crow” that she decries. In her acknowledgements, Alexander graciously notes: “As a federal prosecutor, he does not share my views of the criminal justice system.” Alexander apparently doesn’t even take herself seriously.
Alexander cites none of the essential scholarship on race and crime rates. She doesn’t mention Alfred Blumstein. She doesn’t mention Michael Hindelag. She doesn’t mention Patrick Langan. She doesn’t mention James Q. Wilson, She doesn’t even even mention Michael Tonry’s scrupulous summary of the scholarship in Malign Neglect.
Alexander’s book is not itself a work of scholarship. It is a polemic. It is, more accurately, a work of obfuscation in the service of political propaganda. As propaganda, it is an unsavory piece of work at that.
If one attempts to take it seriously, one will find it a source of frustration. Alexander announces in the first sentence of her preface: “This is not a book for everyone.” It is one of the few genuinely truthful sentence in the book.
Yale Law School’s James Forman has written intelligently on the book from a sympathetic perspective on the left, in the essays “Harm’s way” and, building on that essay, in “Racial critiques of mass incarceration: Beyond the new Jim Crow.” Forman gives too much credit to Alexander’s attack on the drug laws, but his essays contribute to an understanding of her book’s defects.
Alexander’s book has gone mainstream. It spent 35 weeks on the New York Times paperback best seller list. The book deserves serious critical attention.
Some knowledgeable conservative scholar needs to attend to Alexander’s book. It is a deeply false and pernicious work. To my knowledge, however, the closest we have to such a necessary critique is the Spring 2008 City Journal essay by the invaluable Heather Mac Donald: “Is the criminal justice system racist?”
Mac Donald’s essay predates the publication of Alexander’s book, but Mac Donald anticipates and refutes Alexander’s essential theses. Students of rhetoric, I believe what we have here is a sweet case of prolepsis.
Alexander’s turgid book rests on three theses that she doesn’t state quite as clearly as I do below in three numbered points, followed by italicized excerpts of Heather Mac Donald’s City Journal essay that comment on them.
(1) Alexander asserts that the war on drugs was intended to produce the mass incarceration of blacks.
The assertion that concern about crack resulted from “unconscious racial aversion towards blacks” ignores a key fact: black leaders were the first to sound the alarm about the drug, as Harvard law professor Randall Kennedy documents in Race, Crime, and the Law. Harlem congressman Charles Rangel initiated the federal response to the epidemic, warning the House of Representatives in March 1986 that crack had made cocaine “frightening[ly]” accessible to youth. A few months later, Brooklyn congressman Major Owens explicitly rejected what is now received wisdom about media hype. “None of the press accounts really have exaggerated what is actually going on,” Owens said; the crack epidemic was “as bad as any articles have stated.” Queens congressman Alton Waldon then called on his colleagues to act: “For those of us who are black this self-inflicted pain is the worst oppression we have known since slavery. . . . Let us . . . pledge to crack down on crack.” The bill that eventually passed, containing the crack/powder distinction, won majority support among black congressmen, none of whom, as Kennedy points out, objected to it as racist.
These politicians were reacting to a devastating outbreak of inner-city violence and addiction unleashed by the new form of cocaine.
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It takes shameless sleight of hand to turn an effort to protect blacks into a conspiracy against them. If Congress had ignored black legislators’ calls to increase cocaine-trafficking penalties, the outcry among the groups now crying racism would have been deafening. Yes, a legislative bidding war drove federal crack penalties ultimately to an arbitrary and excessive point; the reduction of those penalties is appropriate. But what led to the crack-sentencing scheme wasn’t racism but legal logic. Prosecutors rely on heavy statutory penalties to induce defendants to spill the beans on their criminal colleagues.
(2) Alexander asserts that state and federal enforcement of the drug laws is racially biased to produce the mass incarceration of blacks. This mass incarceration and related effects make out “the new Jim Crow” that gives the book its title.
Critics follow up their charges about crack with several empirical claims about drugs and imprisonment. None is true. The first is that drug enforcement has been the most important cause of the overall rising incarceration rate since the 1980s. Yet even during the most rapid period of population growth in prisons—from 1980 to 1990—36 percent of the growth in state prisons (where 88 percent of the nation’s prisoners are housed) came from violent crimes, compared with 33 percent from drug crimes. Since then, drug offenders have played an even smaller role in state prison expansion. From 1990 to 2000, violent offenders accounted for 53 percent of the census increase—and all of the increase from 1999 to 2004.
Next, critics blame drug enforcement for rising racial disparities in prison. Again, the facts say otherwise. In 2006, blacks were 37.5 percent of the 1,274,600 state prisoners. If you remove drug prisoners from that population, the percentage of black prisoners drops to 37 percent—half of a percentage point, hardly a significant difference. (No criminologist, to the best of my knowledge, has ever performed this exercise.)
The rise of drug cases in the criminal-justice system has been dramatic, it’s important to acknowledge. In 1979, drug offenders were 6.4 percent of the state prison population; in 2004, they were 20 percent. Even so, violent and property offenders continue to dominate the ranks: in 2004, 52 percent of state prisoners were serving time for violence and 21 percent for property crimes, for a combined total over three and a half times that of state drug offenders. In federal prisons, drug offenders went from 25 percent of all federal inmates in 1980 to 47.6 percent of all federal inmates in 2006. Drug-war opponents focus almost exclusively on federal, as opposed to state, prisons because the proportion of drug offenders is highest there. But the federal system held just 12.3 percent of the nation’s prisoners in 2006.
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The press almost never mentions the federal methamphetamine-trafficking penalties, which are identical to those for crack: five grams of meth net you a mandatory minimum five-year sentence. In 2006, the 5,391 sentenced federal meth defendants (nearly as many as the crack defendants) were 54 percent white, 39 percent Hispanic, and 2 percent black. But no one calls the federal meth laws anti-Hispanic or anti-white.
(3) More generally, Alexander purports to “debunk the notion that rates of black imprisonment can be explained by crime rates[.]”
The favorite culprits for high black prison rates include a biased legal system, draconian drug enforcement, and even prison itself. None of these explanations stands up to scrutiny. The black incarceration rate is overwhelmingly a function of black crime. Insisting otherwise only worsens black alienation and further defers a real solution to the black crime problem.
Racial activists usually remain assiduously silent about that problem. But in 2005, the black homicide rate was over seven times higher than that of whites and Hispanics combined, according to the federal Bureau of Justice Statistics. From 1976 to 2005, blacks committed over 52 percent of all murders in America. In 2006, the black arrest rate for most crimes was two to nearly three times blacks’ representation in the population. Blacks constituted 39.3 percent of all violent-crime arrests, including 56.3 percent of all robbery and 34.5 percent of all aggravated-assault arrests, and 29.4 percent of all property-crime arrests.
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“Racial differences in patterns of offending, not racial bias by police and other officials, are the principal reason that such greater proportions of blacks than whites are arrested, prosecuted, convicted and imprisoned,” Michael Tonry wrote in Malign Neglect. (Tonry did go on to impute malign racial motives to drug enforcement, however.) The media’s favorite criminologist, Alfred Blumstein, found in 1993 that blacks were significantly underrepresented in prison for homicide compared with their presence in arrest.
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The evidence is clear: black prison rates result from crime, not racism. America’s comparatively high rates of incarceration are nothing to celebrate, of course, but the alternative is far worse. The dramatic drop in crime in the 1990s, to which stricter sentencing policies unquestionably contributed, has freed thousands of law-abiding inner-city residents from the bondage of fear. Commerce and street life have revived in those urban neighborhoods where crime has fallen most.
The gist of Alexander’s book is that the imprisoned population of black drug offenders are good citizens caught up in a racist plot. Consistent with Alexander’s arguments, the Obama administration has implemented a plan to commute the sentences of federal drug offenders who meet six criteria supporting their release. Josh Gerstein notes that the ACLU has even been invited to help screen applications for commutation.
USA Today’s Gregory Korte reports that the commutation plan has so far found remarkably few worthy applicants among the thousands who have applied for relief. Quotable quote (former Office of Pardon Attorney adviser Johanna Markind): “The criteria basically suggest that a whole bunch of good citizens who committed one little mistake got significantly more than 10 years in prison, and fortunately that’s pretty rare[.]”
In her key chapter on crime rates and incarceration, I found Alexander deserving of recognition by one of James Taranto’s coveted “Fox Butterfield, is that you?” queries. In the New York Times Butterfield has expressed puzzlement over the “paradox” of falling crime rates and a growing prison population. The possible cause-and-effect relationship between the two has escaped Butterfield. Taranto recognizes such obtuseness with his recurring query. In chapter 3 of her book, Alexander performs the full Butterfield: “Today violent crime rates are at historically low levels, yet incarceration rates continue to climb.”