Racial critiques of mass incarceration: Beyond the new Jim Crow

New York University Law Review

Volumn 87, Issue 1, 2012, Pages 21-69

  Forman Jr , James ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84859732329     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (344)

1. 397 U.S. 483 (1954). Blacks constituted 30% of America's prisoners at the time of Brown v. Board of Education 1954
2. Marc Mauer, Race to Incarcerate 121 (1999), while blacks constituted 38% of all inmates in state or federal prisons in 2008
3. William J. Sabol et al., Bureau of Justice Statistics Bulletin: Prisoners in 2008, at 2 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf.
4. Bruce Western, Punishment AND Inequality in America 25-26 (2006) (noting that the odds that a black man born in the late 1960s will land in prison are twice as great as they are for a black man born in the 1940s).
5. Roy Walmsley, Int'l Ctr. for Prison Studies, King's Coll. London, World Prison Population List 1 (8th ed. 2009), available at http://www.kcl.ac.uk/depsta/law/research/icps/downloads/wppl-8th_41.pdf (discussing how U.S. prisoners constitute 2.29 million of the 9.8 million people held in penal institutions throughout the world, making the United States the country with both the largest number of prisoners and the highest per capita prison population).
6. In 1970, there were 326,000 Americans behind bars: 196,000 in state and federal prisons and another 130,000 in local jails. Margaret Werner Cahalan, U.S. Dep't of Justice, Bureau OF Justice Statistics, NCJ-102529, Historical Corrections Statistics in the United States, 1850-1984, at 35 tbl.3-7, 76 tbl.4-1 (1986), available at http://www.ncjrs.gov/pdffiles1/pr/102529.pdf. As of 2009, there were 2.3 million Americans in jails and prisons.
7. Key Facts at a Glance: Correctional Populations, Bureau OF Justice Statistics, http://bjs.ojp.usdoj.gov/content/glance/tables/corr2tab.cfm (last modified Oct. 2, 2011).
8. Sabol et al., Supra Note 1, at 2 tbl.2 (showing that 3161 non-Hispanic black men per 100,000 were imprisoned in 2008, versus 487 non-Hispanic white men per 100,000).
9. The terms "mass incarceration" and "mass imprisonment" are used synonymously in the criminal justice literature. David Garland is credited with coining "mass imprisonment"; according to Garland, mass imprisonment's two defining features are 1) "sheer numbers" and 2) "the systematic imprisonment of whole groups of the population." David Garland, Introduction: The Meaning of Mass Imprisonment, in Mass Imprisonment: Social Causes and Consequences 1, 1-2 (David Garland ed, 2001).
10. James Forman, Children, Cops, and Citizenship: Why Conservatives Should Oppose Racial Profiling, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment 150+151 (Marc Mauer & Meda Chesney-Lind eds., 2002) [hereinafter Forman, Jr., Racial Profiling] (arguing that aggressive criminal justice policies, including racial profiling, have affected communities of color disproportionately)
11. James Forman, Community Policing and Youth as Assets, 95 J. Crim. L. & Criminology 1 (2004) [hereinafter Forman, Jr., Community Policing] (arguing that community policing efforts are undercut because the efforts leave youth out of the model)
12. James Forman, Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible, 33 N.Y.U. Rev. L. & Soc. Change 331 (2009) [hereinafter Forman, Jr., Exporting Harshness] (arguing that the expansiveness and harshness of mass incarceration have contributed to even more drastic War on Terror policies)
13. James Forman, Jr., Why Care About Mass Incarceration?, 108 MICH. L. REV. 993+1006-09 (2010) [hereinafter Forman, Jr., Mass Incarceration] (reviewing Paul Butler, Let's Get Free: A Hip-Hop Theory of Justice (2009)) (discussing the adverse effects of prison conditions on both inmates and the community at large).
14. David Domenici & James Forman, What It Takes To Transform a School Inside a Juvenile Justice Facility: The Story of the Maya Angelou Academy, in Justice for Kids: Keeping Kids out of the Juvenile Justice System 283+283-85 (Nancy E. Dowd ed., 2011) (discussing an effort to improve a school within a juvenile justice facility)
15. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).
16. A Sabol et al., Supra Note 1, at 37 app. tbl.15.
17. William H. Buckman & John Lamberth, Challenging Racial Profiles: Attacking Jim Crow on the Interstate, The Champion, 1999, at 14.
18. Id. ("Around the nation Jim Crow exists as a by-product of a 'War on Drugs' spun out of control.")
19. Ira Glasser, American Drug Laws: The New Jim Crow, The 1999 Edward C. Sobota Lecture, 63 ALB. L. REV. 703+723 (2000).
20. Graham Boyd, Collateral Damage in the War on Drugs, 47 VILL. L. REV. 839+845 (2002).
21. Symposium, U.S. Drug Laws: The New Jim Crow?, 10 TEMP. POL. & CIV. RTS. L. REV. 303 (2001). During this same period, Berkeley sociologist Loïc Wacquant argued that the penal system was the latest form of racial subjugation in America-before it came slavery, Jim Crow, and the urban ghetto. As one form of racial subjugation is dismantled, says Wacquant, another takes its place. Each of these institutions subordinates and confines blacks "in physical, social, and symbolic space."
22. Loïc Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, in Mass Imprisonment, Supra Note 6, at 83 [hereinafter Wacquant, Deadly Symbiosis]. Wacquant's work is cited extensively by advocates of the New Jim Crow thesis
23. Alexander, Supra Note 9, at 22+26+94+102 (citing Wacquant). However, Wacquant himself rejects the Jim Crow analogy. Loïc Wacquant, Not the New Jim Crow: Class, Race, and the Prison Boom After the Implosion of the Ghetto (Aug. 20-23, 2011) (unpublished manuscript) (on file with author).
24. Kim Shayo Buchanan, Impunity: Sexual Abuse in Women's Prisons, 42 HARV. C.R.-C.L. L. REV. 45+57-58+87 (2007) (situating the current legal regime, which grossly limits access to relief for prisoners who are victims of sexual abuse in prisons, as "part of a historical and contemporary pattern of legal enforcement" of racial hierarchy which includes slavery and Jim Crow)
25. Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 GEO. L.J. 1005, 1076 (2010) ("Unfortunately, we currently see a criminal justice system that, in operation today, has disparate impacts on minority communities, much as in the days of Jim Crow, with that system in effect sanctioned by the U.S. Supreme Court.")
26. Joseph E. Kennedy, The Jena Six, Mass Incarceration, and the Remoralization of Civil Rights, 44 HARV. C.R-C.L. L. REV. 477, 505-06 (2009) ("Mass incarceration profoundly harms the most vulnerable part of the African American population by disintegrating legions of African American men from family and economic life This. form of social exclusion. rivals Jim Crow and other, earlier forms of racial subordination long since recognized as unjust and unwise.")
27. Alex Lichtenstein, The Private and the Public in Penal History: A Commentary on Zimring and Tonry, in MASS IMPRISONMENT, Supra Note 6, at 171+173-74+176 (arguing that the current regime of mass incarceration is "intimately bound up with larger patterns of historic and contemporary racial inequality, discrimination, and repression," including Jim Crow)
28. Audrey G. McFarlane, Operatively White?: Exploring the Significance of Race and Class Through the Paradox of Black Middle-Classness, 72 Law & Contemp. Probs. 163, 191 (2009) ("The oppression of slavery and Jim Crow is not gone; instead, it has been disaggregated and reassembled into more efficient components of oppression.")
29. Dorothy E. Roberts, Constructing a Criminal Justice System Free of Racial Bias: An Abolitionist Framework, 39 Colum. Hum. Rts. L. Rev. 261+263 (2007) (arguing for an "abolish[ment of the] criminal justice institutions with direct lineage to slavery and Jim Crow that are key components of the present regime of racial repression")
30. Christopher J. Tyson, At the Intersection of Race and History: The Unique Relationship Between the Davis Intent Requirement and the Crack Laws, 50 HOW. L.J. 345+348-49 (2007) ("[R]acialized mass imprisonment. in the post-segregation era, has replaced Jim Crow as the literal and symbolic tool of black subjugation.")
31. Andrew D. Black, Note, "The War on People": Reframing "The War on Drugs" by Addressing Racism Within American Drug Policy Through Restorative Justice and Community Collaboration, 46 U. LOUISVILLE L. REV. 177+178 (2007) ("[T]he true insidiousness of the 'War on Drugs' is its role as an effective weapon destroying the infrastructure of African American communities through the steady reimplementation of Jim Crow.")
32. Daniel S. Goldman, Note, The Modern-Day Literacy Test?: Felon Disenfranchisement and Race Discrimination, 57 STAN. L. REV. 611+612 (2004) ("The incarceration boom of the past three decades, combined with the corresponding collateral consequences stemming from criminal convictions, has ingrained into modern society a minority underclass resembling that of the stratified societal structure present during the Jim Crow era.").
33. Alexander, Supra Note 9, at 3.
34. Alexander, Supra Note 9, at 3.
35. James B. Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 U. St. Thomas L.J. 387, 389 (2006) (discussing the existence of state laws which deny convicted criminals certain government benefits and services).
36. Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement And American Democracy (2006) (discussing the current disenfranchisement laws in the United States)
37. Anthony C. Thompson, Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics (2008) (examining the effects of race, power, and politics on the reintegration of recently released prisoners).
38. All states, except for Maine and Vermont, and the District of Columbia place some restrictions on felon voting rights. See Vt. Stat. Ann. tit. 17, § 2121 (2002) (making no exception of voter eligibility for convicted felons)
39. Me. Rev. Stat. tit. 21, § 247 (1973) (repealed 1975)
40. The Sentencing Project, Felony Disenfranchisement Laws In The United States (2011) [hereinafter FELONY DISENFRANCHISEMENT], available at http://sentencingproject.org/doc/publications/fd_bs_fdlawsinusMar11.pdf (describing felon disenfranchisement laws state by state). Thirteen states and the District of Columbia prohibit convicted felons from voting only during incarceration.
41. Id. Thirty-five states extend this restriction to probation, parole, or both
42. Id. In some states, disenfranchisement extends beyond completion of the sentence and, under certain circumstances, may last forever
43. Id. (stating that four states permanently deny the right to vote while eight others require a waiting period after sentence completion)
44. Thomas G. Varnum, Let's Not Jump to Conclusions: Approaching Felon Disenfranchisement Challenges Under the Voting Rights Act, 14 Mich. J. Race & L. 109+116 (2008) (describing four categories of felon disenfranchisement laws). In other states, voting rights are restored after a waiting period following completion of the sentence or upon the granting of a pardon.
45. Jason Schall, The Consistency of Felon Disenfranchisement with Citizenship Theory, 22 Harv. Blackletter L.J. 53+64-65 (2006) (analyzing state systems of felon disenfranchisement).
46. Persons convicted of felonies punishable by at least one year in prison and those with pending felony charges against them are excluded from federal grand and petit jury service, unless the persons' civil rights have been restored. 28 U.S.C. § 1865(b)(5) (2006)
47. U.S. Dep't of Justice, Federal Statutes Imposing Collateral Consequences 13 (2006), available at http://www.justice.gov/pardon/collateral_consequences.pdf (explaining that the restoration of civil rights for voting purposes has been interpreted to require an affirmative action by the state). States vary in the duration of the exclusion of convicted felons from state jury service, ranging from states with no statutory exclusions such as Maine
48. ME. REV. STAT. ANN. tit. 14, § 1211 (2003) (making no exception for convicted felons), to the majority of states, which exclude felons for life from jury service "unless their rights have been restored pursuant to discretionary clemency rules."
49. Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 AM. U. L. REV. 65+157 (2003)
50. Haw. Rev. Stat. § 612-4(b)(2) (Supp. 2009) (excluding felons from jury service unless they are pardoned). Other states fall between these two extremes, excluding convicted felons from jury duty during incarceration, probation, and parole, or some other intermediary duration.
51. R.I. Gen. Laws Ann. § 9-9-1.1(c) (West 1997) (excluding convicted felons from jury service until the completion of sentence, parole, and probation). In addition, some state statutory regimes also disqualify jurors for misdemeanors or other non-felony offenses, such as offenses of moral turpitude.
52. Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006) (excluding those convicted of misdemeanor theft from serving on juries)
53. James M. Binnall, Convicts in Court: Felonious Lawyers Make a Case for Including Convicted Felons in the Jury Pool, 73 Alb. L. Rev. 1379, 1436-40 (2010) (providing a state-by-state chart listing the duration of the jury exclusion for convicted felons).
54. Section 115 of the Personal Responsibility and Work Opportunity Reconciliation Act, a welfare law enacted in 1996, prohibits anyone convicted of a drug-related felony from receiving Temporary Assistance for Needy Families (TANF), unless states opt out of or modify the ban. 21 U.S.C. § 862a (2006).
55. Currently, only eleven states permanently deny TANF on the basis of this ban, while thirteen states have eliminated the ban entirely. Legal Action Ctr., Opting Out of Federal Ban on Food Stamps and TANF: Summary of State Laws, lac.org, http://www.lac.org/toolkits/TANF/TANF.htm (last updated Jan. 2011). The remaining states and the District of Columbia have limited the ban in some way to enable those with drug felony convictions to be eligible for TANF if they meet certain conditions.
56. Id. In the majority of these states, drug felons become eligible again if they have completed their sentences or are complying with the terms of their judgment, parole, or probation, e.g., Conn. Gen. Stat. Ann. § 17b-112d (West 2006)
57. If they participate in alcohol or drug treatment, e.g., Ky. Rev. Stat. Ann. § 205.2005 (LexisNexis 2007)
58. Or if they submit to random drug testing, e.g., Minn. Stat. Ann. § 256J.26 (West 2007). In a few states, the ban applies only to individuals convicted of the distribution or manufacture of drugs but not possession.
59. Ark. Code Ann. § 20-76-409 (2001).
60. Two states impose the ban for a limited period of time after release from prison, such as Louisiana's one-year ineligibility period. E.g., La. Rev. Stat. Ann. § 46:233.2 (1999).
61. Eligibility for federally funded food stamps is also covered by the Personal Responsibility and Work Opportunity Reconciliation Act. See 21 U.S.C. § 862a (denying those convicted of a drug-related felony benefits under the food stamp program unless states opt out of or modify the ban). Ten states permanently deny food stamps on the basis of the federal ban, while fifteen states and the District of Columbia have eliminated it entirely. Legal Action Ctr., After Prison: Roadblocks to Reentry, lac.org, http://lac.org/roadblocks-to-reentry/main.php?view=law&subaction=7 (last visited Oct. 4, 2011).
62. Twenty-five states have modified the ban to enable drug felons to become eligible if they meet certain conditions, the categories of which are nearly identical to those imposed for TANF qualification.
63. See id. (listing state policies on banning food stamps to individuals convicted of drug felonies). In determining eligibility for public housing, federal law requires local housing agencies to bar permanently two categories of convicts: 1) individuals who are subject to a lifetime sex offender registration requirement
64. 42 U.S.C. § 13663 (2006) And 2) individuals convicted of manufacturing or producing methamphetamine on public housing premises
65. 42 U.S.C. § 1437n (2006). Additionally, the Department of Housing and Urban Development (HUD) requires Public Housing Authorities (PHAs) to establish standards that prohibit admission to public housing if any household member is using or has recently used illegal drugs, or if the PHA "has reasonable cause to believe" that an individual's illegal behavior will threaten the health and safety of the premises.
66. 24 C.F.R. § 960.204 (2010). A household will also be barred from public housing for at least three years if one of its members was evicted from federally assisted housing for drug-related criminal activity, unless the PHA determines that the offender successfully completed a supervised drug rehabilitation program approved by the PHA.
67. Id. Under HUD's "One-Strike" policy, PHAs are required to include a provision in their leases stating that if any member of a household, or a guest of that household, engages in "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity," the entire household may be evicted, regardless of whether the activity takes place on or off the premises.
68. 42 U.S.C. § 1437d(l)(6) (2006)
69. Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125+130 (2002) (holding that 42 U.S.C. § 1437d(l)(6) grants public housing authorities the discretion to evict tenants for "drugrelated activity of household members and guests whether or not the tenant knew, or should have known, about the activity").
70. PHAs retain a great deal of discretion and can make individualized determinations about applicants; only three states flatly ban applicants with a wide range of criminal records. In practice, however, many PHAs do not conduct individualized assessments and adhere, in effect, to "zero tolerance" policies. Corinne A. Carey, No Second Chance: People with Criminal Records Denied Access to Public Housing, 36 U. TOL. L. REV. 545+566 (2005).
71. The Higher Education Act (HEA) of 1965, Pub. L. No. 89-329, 79 Stat. 1219, which provided for financial assistance to students in postsecondary and higher education, contained no provisions barring aid to students with criminal records. In 1998, Congress amended the HEA with the Drug Free Student Loans Act, which made students convicted of a drug offense ineligible for any grant, loan, or work assistance for a specified period of time unless they completed a drug rehabilitation program.
72. Higher Education Amendments of 1998, Pub. L. No. 105-244, § 483+112 Stat. 1581, 1735-36. A report by the Government Accountability Office (GAO) estimated that 23,000 students were denied Pell Grants because of their drug convictions during the 2001-2002 academic year alone.
73. U.S. Gov't Accountability Office, GAO-05-238, Drug Offenders: Various Factors May Limit the Impacts of Federal Laws that Provide for Denial of Selected Benefits 57 (2005). In 2005, Congress amended the HEA again to ease the 1998 restrictions. Under the revised law, students face ineligibility only if they are convicted of a drugrelated offense while receiving federal aid
74. 20 U.S.C. § 1091(r) (2006). Financial aid is suspended on the date of conviction for varying lengths of time, depending on the type of offense and whether or not it is a repeat offense.
75. Id. Eligibility may also be restored if the student completes a drug rehabilitation program.
76. This federal legal barrier cannot be altered by the states. No other class of offense, including violent offenses, sex offenses, or repeat offenses, results in the automatic denial of federal financial aid eligibility.
77. Legal Action Ctr., Supra Note 23. In September 2009, the U.S. House of Representatives passed a bill that would have limited HEA's drug conviction penalty to those convicted of drug sales (not drug possession), but it never reached a Senate vote. H.R. 3221, 111th Cong. (2009).
78. Modern occupational licensing laws regulate professional as well as unskilled and semi-skilled occupations. As of 2000, roughly twenty percent of the national workforce was licensed. See Morris M. Kleiner, Licensing Occupations: Ensuring Quality or Restricting Competition? 105 (2006) (explaining that this statistic ranges from state to state with California having 30.4% of its workforce licensed and Mississippi only 6.1%).
79. The statutory requirements for obtaining occupational licenses vary among the states and according to the type of license. In some instances, a criminal conviction will bar a license. For example, a person cannot become a real estate appraiser in Alaska if he has been convicted of a crime "involving moral turpitude," Alaska Stat. § 08.87.110 (1995), or obtain a liquor license in South Dakota if he has ever committed a felony
80. S.D. Codified Laws § 35-2-6.2 (2004). Some state statutes identify occupations in which a licensing board can refuse an application solely on the basis of a criminal record. In Ohio, a license to become a barber may be denied based on a felony conviction
81. Ohio Rev. Code Ann. § 4709.13 (West 2004), and in New Jersey, any "criminal history" (presumably including arrests without conviction) may disqualify an individual from becoming a health care professional
82. N.J. Stat. Ann. § 45:1-29 (West Supp. 2011). Other states require a nexus between crime and occupation for the denial of occupational licenses. In California, for example, a criminal record can affect one's application for a professional license only if "the crime or act is substantially related to the qualifications, functions or duties of the business or profession for which application is made."
83. Cal. Bus. & Prof. Code § 480 (West Supp. 2011). In Texas, licensing authorities must also consider factors such as the nature and seriousness of the crime.
84. Tex. Occ. Code Ann. § 53.022 (West 2004). Another hurdle faced by individuals with criminal records is the "good moral character" requirement included in most licensing laws. Many states have failed to define what constitutes "good moral character"; others have applied a definition that can be broadly construed to exclude anyone with a criminal record.
85. Bruce E. May, The Character Component of Occupational Licensing Laws: A Continuing Barrier to the Ex-Felon's Employment Opportunities, 71 N.D. L. REV. 187, 194-95 (1995) (arguing that the "good moral character" requirement poses the greatest obstacle to obtaining a license)
86. S. David Mitchell, Undermining Individual and Collective Citizenship: The Impact of Exclusion Laws on the African American Community, 34 FORDHAM URB. L.J. 833+850-52+879 app. VII, 882 app. VIII, 885 app. IX (2007) (summarizing state licensing laws).
87. In some cases the disabilities attach even without a conviction. As Alec Ewald explains, "several of the most serious collateral consequences-including deportation, eviction, temporary loss of custody of one's children, and job suspension-are routinely imposed not only on misdemeanants but also on people arrested or charged." Alec C. Ewald, Collateral Consequences and the Perils of Categorical Ambiguity, in Law As Punishment/Law As Regulation 77+81 (Austin Sarat et al. eds, 2011).
88. Alexander, Supra Note 9, at 139-40 (describing the possible collateral consequences that await ex-offenders).
89. It is important to note that the recent trend in many states and the federal government is toward reducing the severity of the restrictions placed on those with criminal convictions. For example, the Sentencing Project reports that "since 1997, 23 states have amended felony disenfranchisement policies in an effort to reduce their restrictiveness and expand voter eligibility."**
90. Nicole D. Porter, The Sentencing Project, Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2010, at 1 (Oct. 2010), available at www.sentencingproject.org/doc/./vr_ExpandingtheVoteFinalAddendum.pdf
91. Also, the federal ban on student loans for those convicted of drug offenses has been substantially narrowed; it now limits only those who are convicted of a drug offense while already receiving federal aid. See Supra Note 25 (describing the amendments to the HEA). In addition, since the Personal Responsibility and Work Opportunity Reconciliation Act was passed in 1996, thirty-nine states and the District of Columbia have either opted out of or modified the federal ban on TANF for individuals convicted of drug-related felonies, and forty states and the District of Columbia have done so with respect to food stamps.
92. Supra Notes 22-23 and accompanying text (detailing state laws which modify the federal ban).
93. A Forman, Jr., Community Policing, Supra Note 7 at 22-25 (2004)
94. (describing the misleading theme of inner city youth as "super-predators").
95. Id. at 20-21 (explaining that black youths are significantly more likely to be disrespected, illegally searched, and have force used against them when stopped by police)
96. Report of Jeffrey Fagan, Ph.D. at 22 tbl.3, David Floyd v. City of New York, No. 08 Civ. 01034 (S.D.N.Y. Oct. 15, 2010) (showing that NYPD officers conducted a greater number of stop and frisks of young black men aged 16-19 in New York City than of Hispanic and white men in the same age group), available at http://ccrjustice.org/files/Expert_Report_JeffreyFagan.pdf
97. Jeffrey A. Fagan et al., Street Stops and Broken Windows Revisited: The Demography and Logic of Proactive Policing in a Safe and Changing City, in RACE, ETHNICITY, AND POLICING: NEW AND ESSENTIAL READINGS 309+314 (Stephen K. Rice & Michael D. White eds., 2010) (discussing surveys which indicate that African Americans are more likely than other Americans to report being stopped on a highway by police)
98. Jon B. Gould & Stephen D. Mastrofski, Suspect Searches: Assessing Police Behavior Under the U.S. Constitution, 3 CRIMINOLOGY & PUB. POL'Y 315+6338-39 (2004) (finding that suspects under thirty were subjected to a significantly greater number of unconstitutional searches)
99. William Terrill & Stephen D. Mastrofski, Situational and Officer-Based Determinants of Police Coercion, 19 JUST. Q. 215+236 (2002) (stating that officers in one study were significantly more likely to use force on "males, nonwhites, young suspects and poor suspects").
100. Catherine Y. Kim et al., The School-To-Prison Pipeline: Structuring Legal Reform 119 (2010) (stating that schools have increased their reliance on outside forces to handle discipline and, as a result, children are arrested for school misbehavior at a growing rate).
101. Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration 90-91+91 fig.5.1 (2007) (finding that black applicants with a criminal record had a lower chance of receiving a call back from an employer than white applicants with a criminal record: five percent and seventeen percent, respectively).
102. Donald Braman, Doing Time on the Outside: Incarceration and Family Life in Urban America (2004) (describing the far-reaching effects of incarceration on the social life of families and communities)
103. Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (2007) (discussing how the increasing criminalization of black men has led to their stigmatization)
104. Jeffrey A. Fagan & Tracey L. Meares, Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities, 6 Ohio St. J. Crim. L. 173 (2008) (analyzing the impact of high levels of incarceration on minority communities)
105. Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271 (2004) (detailing the ways in which the mass incarceration of African Americans has damaged social networks, distorted social norms, and destroyed social citizenship).
106. Alexander, Supra Note 9, at 179-80
107. Darryl Pinckney, Invisible Black America, N.Y. REV. BOOKS, Mar. 10, 2011, at 34 ("Now and then a book comes along that might in time touch the public and educate social commentators, policymakers, and politicians about a glaring wrong that we have been living with that we also somehow don't know how to face. The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander is such a work.")
108. Charles M. Blow, Smoke and Horrors, N.Y. TIMES, Oct. 23, 2010, at A21 (citing the Jim Crow analogy with approval). Alexander's book has also been featured on National Public Radio and The Bill Moyers Journal. Scholar: Jim Crow Is Far From Dead (NPR radio broadcast June 2, 2010), available at http://www.npr.org/templates/story/story.php?storyId=127368484
109. Bill Moyers Journal, Bryan Stevenson and Michelle Alexander (PBS television broadcast Apr. 2, 2010).
110. Alexander, Supra Note 9, at 195-208 (discussing the limits of the analogy). For example, Alexander points out that while the old Jim Crow never purported to be colorblind, the New Jim Crow operates under the myth of colorblindness.
111. Id. at 11-12 ("The colorblind public consensus that prevails in America today-i.e., the widespread belief that race no longer matters-has blinded us to the realities of race in our society and facilitated the emergence of a new caste system.")
112. Roberts, Supra Note 16, at 263 ("Unlike state violence inflicted in the Jim Crow era explicitly to reinstate blacks' slave status, today's criminal codes and procedures operate under the cloak of colorblind due process. The racism of the criminal justice system is therefore invisible to most Americans."). The myth of colorblindness has provided a cover for egregious injustices in the criminal justice system, and Alexander effectively employs the Jim Crow analogy to unmask some of them. Consider the recently narrowed disparity in federal sentences for possessing crack versus powder cocaine.
113. Kara Gotsch, The Sentencing Project, Breakthrough in U.S. Drug Sentencing Reform: The Fair Sentencing Act and the Unfinished Reform Agenda 2-5 (2011), available at http://www.sentencingproject.org/doc/dp_WOLA_Article.pdf (discussing the effects of the Fair Sentencing Act on the disparity in federal sentences for possessing crack versus powder cocaine). The law does not say that black drug offenders will be treated more harshly than white offenders; it makes no reference to race. But the facially race-neutral law has been anything but race-neutral as applied; its impact on African American defendants has been devastating
114. Id. at 4-5.
115. Dorothy Roberts summarizes the historical claim: "Thus, the shift in law enforcement policies at the end of the 1970s that started the astronomical U.S. prison expansion can be seen as a backlash against the reforms achieved by civil rights struggles." D Roberts, Supra Note 16, at 272
116. For similar accounts, see Alexander, Supra Note 9, at 40-47
117. Ian F., Haney López, Post-racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CAL. L. REV. 1023+1031-37 (2010).
118. Alexander, Supra Note 9, at 41 (quoting Barry Goldwater, Peace Through Strength, in 30 VITAL SPEECHES OF THE DAY 744 (1964)).
119. Id. at 43 (citing WILLARD M. OLIVER, THE LAW & ORDER PRESIDENCY 127-28 (2003)).
120. Id. at 44 (quoting JOHN EHRLICHMAN, WITNESS TO POWER 233 (1970)).
121. David Garland, The Culture of Control 90 (2001) ("In the USA, crime rates rose sharply from 1960 onwards, reaching a peak in the early 1980s when the rate was three times that of twenty years before, the years between 1965 and 1973 recording the biggest rise on record. Moreover, the increases occurred in all the main offence categories, including property crime, crimes of violence and drug offending.")
122. Gary Lafree, Losing Legitimacy: Street Crime and the Decline OF Social Institutions in America 20 (1998) (providing an estimate including Uniform Crime Reports (UCR) categories for murder, robbery, rape, aggravated assault, battery, burglary, motor vehicle theft, and larceny).
123. Id. at 21-22
124. Alexander, Supra Note 9, at 41.
125. Id. Alexander, Supra Note 9, at 41.
126. Garland, Supra Note 41, at 90 (noting the significant rise in crime rates from 1960 through the 1980s)
127. Lafree, Supra Note 42, at 20-22 (citing the quadrupling of street crime rates between 1959 and 1971)
128. Henry Ruth & Kevin R. Reitz, The Challenge of Crime: Rethinking Our Response 75 (2003) (comparing UCR data to other available sources and concluding that "our best educated guess is that rates of offending for serious violent crimes roughly doubled from 1960 to 1975, and remained somewhere in that 200 percent ballpark for the next fifteen to twenty years").
129. Vanessa Barker, The Politics OF Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders 151 (2009).
130. Id. (note)
131. Alexander, Supra Note 9, at 40.
132. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 VA. L. REV. 747+790 (1991). With respect to attitudes toward sentencing policy in particular, the evidence suggests that Americans across racial lines agree broadly about appropriate sentences for specific crimes and those crimes' relative seriousness
133. Princeton Survey Research Assocs. Int'l for the Nat'l Ctr. for State Courts, The NCSC Sentencing Attitudes Survey: A Report on the Findings 2 (July 2006) [hereinafter NCSC SURVEY], available at http://www.ncsconline.org/d_research/Documents/NCSC_Sentencing Survey_Report_Final060720.pdf (noting the broad consensus among Americans that violent crimes should result in tougher sentences than non-violent crimes)
134. Donald Braman et al, Some Realism About Punishment Naturalism, 77 U. CHI. L. REV. 1531+1543-44 (2010) (discussing a study by Paul J. Robinson and Robert Kurtzban which analyzed individuals' ranking of the wrongfulness of various actions and concluding that the "rankings [are] highly consistent. across a broad array of demographic variable[s]")
135. J.L. Miller et al., Perceptions of Justice: Race and Gender Differences in Judgments of Appropriate Prison Sentences, 20 LAW & SOC'Y REV. 313+332-30 (1986) ("Compared to whites, in making their judgments blacks generally are less strongly influenced by crime seriousness. [and] more influenced by offender characteristics and the mitigating circumstances surrounding the crime."). Although there are some differences between African Americans and whites in judgments about appropriate sentences-often with African Americans imposing more lenient sentences-those differences are eclipsed by variation along other demographic lines, including class and education level.
136. Peter H. Rossi & Richard A. Berk, Just Punishments: Federal Guidelines AND Public Views Compared 205 (1997) (concluding that educational attainment is the strongest demographic correlate for sentencing attitudes)
137. Philip E. Secret & James B. Johnson, Racial Differences in Attitudes Toward Crime Control, 17 J. Crim. Just. 361+370-71 (1989) (finding that race is a less powerful predictor of attitudes toward crime control than are other demographic factors, such as income, political party, sex, and age)
138. Carroll Seron et al., Judging Police Misconduct: "Street-Level" Versus Professional Policing, 38 L. & Soc'y Rev. 665+678-79 (2004) (noting that several studies suggest that "minorities, and blacks in particular, do not hold significantly different attitudes or expectations about issues related to the administration of the criminal justice system than whites"). Recent research paints a complicated picture of public attitudes toward sentencing, showing that these attitudes are related to a broad variety of factors, including judgments about the fairness of crime control and the judicial system more broadly, the survey respondent's knowledge about current sentencing policies and sentencing alternatives, and the survey respondent's personal involvement with the court system.
139. NCSC Survey, Supra, at 24 ("Knowledge of crime and incarceration rates and personal involvement with the court system also influence opinions about sentencing in general.")
140. Rossi & Berk, Supra, at 167-206 (concluding that individuals who had been involved in the criminal justice system as a juror, plaintiff, or witness, or who had been accused or convicted of a crime were inclined to give longer prison sentences). For analysis of black attitudes toward other aspects of crime policy
141. Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, 73 S. Cal. L. Rev. 1219 (2000)
142. Tracey L. Meares, Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law, 1 Buffalo Crim. L. REV. 137 (1997).
143. For additional perspectives on the same issue, see generally Randall Kennedy, Race, Crime And THE Law (1997)
144. Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of Identification, 65 S. Cal. L. Rev. 1769 (1992).
145. Robert L. Wilkins, Federal Influence on Sentencing Policy in the District of Columbia: An Oppressive and Dangerous Experiment, 11 FED. SENT'G REP. 143, 143 (1999) (explaining that "even though Congress and the President have veto power over D.C. legislation and the power to pass legislation exclusively applicable to the District of Columbia, they had generally respected. 'home rule'. and not forced many major legislative changes in the sensitive and inherently local area of criminal law," including in the area of sentencing).
146. 2010 Census: District of Columbia Profile, U.S. CENSUS BUREAU 1, http://www.census.gov/geo/maps/dc10_thematic/2010_Profile/2010_Profile_M ap_District_of_Columbia.pdf (last modified Oct. 6, 2011).
147. The D.C. Council was majority black from 1975 until 1999, then majority white until 2009, when it went back to majority black. See Editorial, Quiet Revolution on the D.C. Council, WASH. TIMES, Nov. 9, 1998, at A18 (explaining that the 1998 election resulted in the first majority-white Council since the establishment of Home Rule)
148. Nikita R. Stewart, Schwartz Concedes to Michael Brown, Comment to D.C. Wire: News and Notes on District Politics, WASH. POST (Nov. 5, 2008, 2:18 PM), http://voices.washingtonpost.com/dc/2008/11/schwartz_concedes_to_michael_ b.html (reporting that Michael Brown took Carol Schwartz's seat in the 2008 D.C. Council election). With Brown's election, seven of the Council's 13 seats were held by African Americans
149. Previous Councils, Council Of The District Of Columbia, http://dcclimsl.dccouncil.us/previouscouncils (last visited Jan. 24, 2012) (listing all previous council members in each term).
150. Brian A. Reaves & Matthew J. Hickman, U.S. Dep't of Justice, Bureau of Justice Statistics, Law Enforcement Management and Administrative Statistics, 2000: Data for Individual State and Local Agencies with 100 or More Officers 27 (2004), available at http://www.bjs.gov/content/pub/pdf/lemas00.pdf
151. Ronald Weitzer et al., Police-Community Relations in a Majority Black City, 45 J. Res. Crime & Delinquency 398+407 (2008). Even so, the MPD is not immune to racial divisions within its ranks. Last July, a federal jury awarded close to one million dollars in damages to four black MPD officers who had been retaliated against by their supervisors for complaining of discrimination.
152. Spencer S. Hsu, Jury Orders District To Pay $900,000 to 4 Police Officers in Retaliation Case, Wash. Post (July 20, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/07/19/AR201007 1904938.html (reporting on the jury's verdict).
153. Fagan et al., Supra Note 30, at 314 ("Recent empirical evidence on police stops supports perceptions among minority citizens that police disproportionately stop African American and Hispanic motorists, and that once stopped, these citizens are more likely to be searched or arrested." (citations omitted)).
154. See Biography of Congresswoman Eleanor Holmes Norton, United States House of Representatives, http://www.norton.house.gov/index.php?option=com_content&view=articl e&id=189&Itemid=94 (last visited Oct. 7, 2011) (discussing the Congresswoman's right to recommend federal judges when granted senatorial courtesy)
155. D.C. CODE § 1-204.33 (2011).
156. D.C. CODE § 23-101(a)-(c) (2011) (detailing how local prosecutors prosecute municipal crimes where the penalty does not exceed a fine or one year of imprisonment, as well as crimes relating to disorderly conduct and lewd, indecent, or obscene behavior, while the U.S. Attorney prosecutes everything else, except as otherwise provided by law).
157. D.C. Law 4-166, §§ 9 & 10, 30 D.C. Reg. 1082 (Mar. 9, 1983), codified in D.C. CODE § 33-541(e) (1993) (repealed 1994) (describing the Act and giving referendum vote totals).
158. District of Columbia Nonviolent Offenses Mandatory-Minimum Sentences Amendment Act of 1994, D.C. Law 10-258, § 3, 42 D.C. Reg. 238 (effective May 25, 1995) (codified at D.C. CODE § 48-904.01(c) (2011) (repealing the provision).
159. Matt Neufeld, Minimum Terms' Demise Wins Praise: But Prosecutors Say Bad Message Sent, WASH. TIMES, Nov. 3, 1994, at C5 (quoting Councilmember William Lightfoot).
160. Wilkins, Supra Note 52, at 143.
161. Victoria Benning, Calling for Equality To Begin at Home: Gay Rights Rally Decries Discrimination, Congressional Action Against D.C. Measures, WASH. POST, Mar. 22, 1999, at B03.
162. Leroy Tillman, D.C. Mayor, Jackson Arrested in Protest, FRESNO BEE, Aug. 27, 1993, at A6 (reporting on a protest at which Sharon Pratt Kelly was arrested)
163. Katie Drake, D.C. Demands Voting Rights, THE LEADERSHIP CONFERENCE (Apr. 17, 2002), http://www.civilrights.org/voting-rights/dc-voting-rights/dc-demands-vot ing-rights.html (reporting on a rally for D.C. voting rights addressed by Eleanor Holmes Norton and Anthony Williams)
164. Ashley Southall, D.C. Officials Protest Proposed House Rule, N.Y. TIMES (Jan. 4, 2011), http://thecaucus.blogs.nytimes.com/2011/01/04/d-c-officials-protest-prop osed-house-rule (reporting on Norton and Vincent Gray's protest of a proposal to strip Norton of her right to vote on amendments and procedures when the House of Representatives convenes as a Committee of the Whole)
165. Thousands March for D.C. Voting Rights, WTOP (Apr. 16, 2007), http://www.wtop.com/?nid=25&sid=1116494&sidelines=1 (reporting on a march for voting rights led by Norton and Adrian Fenty and attended by Anthony Williams and D.C. councilmembers).
166. A Tillman, Supra Note 67, at A6.
167. Ben Pershing, Gray, Council Members at Protest of D.C. Riders in Spending Bill, Wash. Post, Apr. 12, 2011, at A11.
168. Fenty Administration Introduces Anti-crime Bill, WH A T'S NEW IN TH E METROPOLITAN POLICE DEP'T (Oct. 10, 2008), http://newsroom.dc.gov/file.aspx/release/15141/wn_081010.pdf.
169. Hamil R. Harris, Inmates Get Tools for Life Outside Jail, Wash. Post, Feb. 12, 2009, at T3 (discussing the D.C. Council's passage of the law after a debate over a single amendment).
170. Nikita R. Stewart, Council Approves Crime Bill in 10-3 Vote, WASH. POST (June 30, 2009), http://voices.washingtonpost.com/dc/2009/06/council_approves_crime_bill_ in.html. I do not mean to argue that D.C. officials have never advocated for less punitive crime policy. They have occasionally done so-for example, as I mentioned earlier, when the D.C. Council eliminated mandatory minimums for drug offenses. My point is that, despite the federal involvement in District affairs, the D.C. Council retains substantial authority over its criminal justice system and sentencing structure.
171. There are a variety of measures we might use to assess a jurisdiction's relative punitiveness. Does the jurisdiction have a death penalty, and, if so, how frequently is it used? Does it have mandatory minimums for sentencing or three-strikes provisions? Does it permanently disenfranchise felons? What are conditions like inside its prisons? How adequately does it fund its indigent defense system? And the list goes on. But incarceration rates are the most commonly used criteria, for at least two reasons. First, they allow for relatively straightforward comparisons across jurisdictions. Second, incarceration rates usefully aggregate a number of other measures. Whether a jurisdiction has mandatory minimums, what maximum sentence length it authorizes for a particular offense, whether it has three-strikes or other repeat offender provisions, whether it punishes crack and powder cocaine offenses differently-these all factor into that jurisdiction's incarceration rates. For a thoughtful discussion of the advantages and disadvantages of using incarceration rates to compare penal policies across jurisdictions, see Michael Tonry, Determinants of Penal Policies, in 36 Crime and Justice: Crime, Punishment, and Politics in Comparitive Perspective 1+7-13 (Michael Tonry ed., 2007).
172. Eric Lotke & Jason Ziedenberg, Justice Policy Inst., Tipping Point: Maryland's Overuse OF Incarceration, and the Impact on Community Safety 2-3+9 (2005) (noting the incarceration rate for young African American men in Baltimore was 56% in 1992 and 52% in 2004)
173. Eric Lotke, Hobbling a Generation: Young African American Men in Washington, D.C.'s Criminal Justice System-Five Years Later, 55 Crime & Delinquency 355+357 (1998) (noting the incarceration rate for young African American men in Washington, D.C., was 50% in 1997).
174. Karen R. Humes et al., U.S. Dep't of Commerce, Overview of Race and Hispanic Origin: 2010, at 18 (2011) (noting that Michigan is 77% non-Hispanic white)
175. The Pew Center on the States, One IN 31: The Long Reach OF American Corrections 8-9 (2009).
176. Id. at 7+42.
177. Jerome G. Miller, Search and Destroy: African American Males in the Criminal Justice System 2 (1996) ("The white majority embraced the draconian [criminal] measures with enthusiasm, particularly as it became clear that they were falling heaviest on minorities in general, and on African American males in particular.").
178. Michael Tonry & Matthew Melewski, The Malign Effects of Drugs and Crime Control Policies on Black Americans, in Thinking About Punishment: Penal Policy Across Space, Time AND Discipline 81+87 (Michael Tonry ed, 2009) ("The history of American race relations has produced political and social sensibilities that made white majorities comparatively insensitive to the suffering of disadvantaged blacks.")
179. Id. at 111 ("[I]nsensitivity to the interests of black Americans continues to characterize American crime policies.").
180. Kate Stith, The Government Interest in Criminal Law: Whose Interest Is It, Anyway?, in Public Values IN Constitutional LAW 137+153 (Stephen E. Gottlieb ed., 1993) ("[I]t is the failure vigorously to enforce the criminal law in black neighborhoods- an especially notorious practice a generation ago-that constitutes a denial of liberty to black citizens. Securing greater personal liberty for black law abiders by enforcing the criminal law is not racial discrimination; it is black liberation.").
181. John A. Rich, Wrong Place, Wrong Time: Trauma and Violence in the Lives of Young Black Men, at 9 (2009).
182. James Alan Fox & Marianne W. Zawitz, U.S. Dep't of Justice, Bureau of Justice Statistics, Homicide Trends in the United States: 1998 UPDATE, at 3 (2000)
183. Callie Rennison, U.S. Dep't of Justice, Bureau of Justice Statistics, Violent Victimization and Race, 1993-1998, at 10 tbl.14 (2001), available at http://www.bjs.gov/content/pub/pdf/vvr98.pdf.
184. Paul Butler, Let's Get Free: A Hip-Hop Theory of Justice 24 (2009).
185. Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 HARV. L. REV. 1255+1258-59 (1994) ("[S]ome of the policies most heatedly criticized by certain sectors of black communities are supported and enforced by other African Americans within these same communities.").
186. Alexander, Supra Note 9, at 205
187. L ópez, Supra Note 37, at 1058 ("Forced into a 'choice' between governmental neglect versus neglect combined with aggressive policing, it seems cruel to defend such policing on the ground that it is 'preferred' by those trapped in impoverished nonwhite neighborhoods.").
188. I do not mean to ascribe a punitive motive to individual Council members or those of the Council as a whole. It is difficult to divine motive in cases such as these. Perhaps the Council is acting because of hostility or indifference to blacks accused of crime. Maybe its choices result from perceived budget constraints, or a perception of what voters want, or something else. My goal here is not to argue that any of these motives predominates. Instead, I seek to raise questions about a motive argument that others have made. Specifically, I use the evidence from the D.C. Council to challenge the claim that blacks only choose prison because they have no other choice and that they would opt for less punitive alternatives if they were available.
189. Supra Note 83 and accompanying text (describing the high incidence of black-on-black crime in D.C.). Faced with evidence that a legislative body chooses A over B when presented with both options, those who assert that the legislature really wanted B but was forced to choose A bear the evidentiary burden to show coercion. And, at least to this point, those who make the claim that black legislators are coerced into policies that sustain mass incarceration have produced no evidence of this.
190. Glasser expressly excluded non-drug offenders from his campaign, saying that "[t]he police power of the state, according to the ACLU, is legitimately used to prevent one citizen from harming others, from attacking others, and to punish him when he does. Glasser, Supra Note 13, at 715.
191. This theme in the discourse on mass incarceration not only exists among the New Jim Crow writers, but also extends to others writing on crime and racial justice. See, e.g., Geneva Brown, White Man's Justice, Black Man's Grief: Voting Disenfranchisement and the Failure of the Social Contract, 10 Berkeley J. Afr.-Am. L. & Pol'y 287+297 (2008) (arguing that the racial disproportionality in mass incarceration "is evidence that the War on Drugs was a War on African American men")
192. Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the 'War on Drugs' Was a 'War on Blacks', 6 J. Gender Race & Just. 381+393 (2002) ("The mass incarceration of African Americans is a direct consequence of the War on Drugs.")
193. Tyson, Supra Note 16, at 364 (arguing that "[a]t the heart of racialized mass imprisonment are questions regarding the appropriateness of non-violent offender sentencing," specifically drug law policies).
194. The New Jim Crow writers take varied approaches to violence. Some ignore it entirely. See generally Gary Ford, The New Jim Crow: Male and Female, South and North, from Cradle to Grave, Perception and Reality: Racial Disparity and Bias in America's Criminal Justice System, 11 RUTGERS RACE & L. REV. 323 (2010) (discussing the racial disparities in the criminal justice system through empirical and ethnographic studies, but never mentioning violent crime)
195. Floyd D. Weatherspoon, The Mass Incarceration of African American Males: A Return to Institutionalized Slavery, Oppression, and Disenfranchisement of Constitutional Rights, 13 TEX. WESLEYAN L. REV. 599 (2007) (expanding the analogy through a focus on the disenfranchisement of black males achieved through mass incarceration, but never discussing the impact of violent crime).
196. The most careful of the writers mention it, but without emphasis. Alexander, Supra Note 9, at 204 ("[B]lack men do have much higher rates of violent crime, and violent crime is concentrated in ghetto communities.")
197. I should clarify that the New Jim Crow writers are not alone in choosing to focus on drugs rather than violence. This tendency is widespread among civil rights and racial justice advocates, as I experienced when serving on a panel addressing mass incarceration at a conference hosted by one of the nation's leading civil rights organizations. The audience appeared moved by the magnitude of the crisis that mass incarceration presents. But despite my attempts to broaden the conversation, it remained rooted in the most comfortable place, with everyone condemning the War on Drugs and no one addressing the issue of violent crime
198. Tonry & Melewski, Supra Note 79, at 104-05.
199. Id. at 105-09
200. Ruth & Reitz, Supra Note 46, at 33. For other crimes the differences are smaller. For burglary, larceny, and motor vehicle theft, for example, the black arrest rates in 1990 were three to four times the white arrest rates.
201. Id Ruth and Reits
202. Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U. COLO. L. REV. 743+748 & n.10 (1993) (citing a study showing, in robbery and aggravated assault cases, a strong correspondence between the race of the arrestee and the race of the offender as reported by the victim)
203. Lafree, Supra Note 42, at 49 ("Both critics and supporters of UCR [Uniform Crime Reports] agree that its quality is generally highest for more serious crimes because citizens are more likely to report more serious crimes to police and police are more likely to make arrests for more serious crimes.")
204. In addition to the discretionary decisions by police evidencing racial disparities, drug cases present the strongest evidence for disparate treatment in the court system itself. In his landmark studies comparing arrest rates to incarceration rates for various offenses, Blumstein found that drug prosecutions offered the largest unexplained racial disparities Alfred Blumstein, On the Racial Disproportionality of the United States' Prison Populations, 73 J. CRIM. L. & CRIMINOLOGY 1259+1274 (1982)
205. Blumstein, Supra Note 95, at 751-52.
206. William J. Sabol et al., U.S. Dep't of Justice, Bureau of Justice Statistics, Bulletin: Prisoners in 2006, at 4 (2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p06.pdf. I use the 2006 numbers because they are the most recent for which the Bureau of Justice Statistics has published the breakdown by offense type for state prisoners
207. Sabol et al., Supra Note 1, at 37 app. tbl.15. Of the 1,333,100 state prisoners, 667,900 were serving time for violent offenses, 277,900 for property offenses, 265,800 for drug offenses, and 112,300 for public order offenses (7200 were other/unspecified). The percentages for African American offenders are similar, with 50% serving time for violent offenses, 19% for property offenses, 23% for drug offenses, and 7% for public order offenses.
208. Doris J. James, U.S. Dep't OF Justice, Bureau of Justice Statistics, Special Report: Profile of Jail Inmates, 2002, at 3 (2004), available at http://www.bjs.gov/content/pub/pdf/pji02.pdf These numbers are from 2002, the most recent for which data on jail inmates by offense category are available.
209. In federal prisons in 2008 (the most recent year for which Bureau of Justice Statistics data are available), 52% were serving time for drug offenses, 33% for public order offenses (including immigration offenses), 8% for violent offenses, and 6% for property offenses. Sabol, Supra Note 1, at 38 app. tbl.17.
210. This is simply an estimate based on the most current available data. My calculation is as follows: 265,000 drug offenders in state prison and 95,000 in federal prison Sabol et al., Supra Note 1, at 37-38 plus 192,000 drug offenders in local jails. The jail figure uses the most recent data for the number of inmates confined in local jails (767,000 in 2009) and assumes that 25% of them have a drug offense as their most serious-which was the case in 2002, the last year for which data on jail inmates by offense category are available
211. TODD D. MINTON, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, JAIL INMATES AT MIDYEAR 2009-STATISTICAL TABLES 4 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/jim09st.pdf
212. If the 550,000 drug offenders were released, the United States would have 1.75 million prisoners. International comparisons should be made with caution. Nonetheless, using the best available numbers, this would still exceed China's prison population, which stands at 1.57 million. Roy Walmsley, INT'L CTR. FOR PRISON STUDIES, KING'S COLL. LONDON, WORLD PRISON POPULATION LIST 1 (8th ed. 2009), available at http://www.prisonstudies.org/info/downloads/wppl-8th_41.pdf The Chinese number does not include administrative detention figures, which, if included, would make China the world's largest jailer
213. Id. at 4. The United States, given its smaller population, would still have the highest incarceration rate.
214. Western, Supra Note 2, at 43-45 (cataloging the increase in the incarceration rate and average time served for violent, property, and drug crimes)
215. ALEXANDER, Supra Note 9, at 99 (emphasis omitted)
216. Kennedy, Supra Note 16, at 489 ("The increase in incarceration that ensued over the following decades was far out of proportion to the crime increase. Over time the level of incarceration remained high even when crime rates dropped.")
217. López, Supra Note 37, at 1031 ("In short, rising incar-ceration rates cannot be explained by increasing crime rates, as after 1980 crime largely declined even as incarceration rapidly accelerated.").
218. In the preceding pages I have focused on the prison population, rather than the larger group of individuals that is under correctional control (including probation, parole, and pre-trial release). But perhaps I am wrong to focus on prisoners; one response to my argument would be to point out that although drug offenders are vastly outnumbered by violent ones in our nation's prisons, the percentages are closer when we include all those who are under criminal justice supervision outside of prison. The distinction matters because the New Jim Crow writers are rightly concerned about a broader system that subjects more blacks to state supervision and collateral consequences. See Supra Part II (discussing the New Jim Crow writers' analysis of the stigmatizing and marginalizing effects of mass incarceration on low-income black communities). This is a fair response, but not a complete rejoinder. First, because deprivation of liberty in prison is the most fundamental form of subjugation our criminal justice system imposes (other than death), the growth of the prison system itself plays a prominent role in critiques of mass incarceration, including those of the New Jim Crow writers. Second, even looking at probationers and parolees, it is a mistake to focus exclusively on drug offenders, for drug offenders still do not constitute a majority of those under criminal justice supervision. For example, 26% of the 4.2 million Americans on probation have a drug crime as their most serious offense
219. LAUREN E. GLAZE & THOMAS P. BONCZAR, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN: PROBATION AND PAROLE IN THE UNITED STATES, 2009, at 26 app. tbl.5, 27 app. tbl.6 (2010) (reporting that the breakdown for probationers, by most serious offense, was as follows: 19% violent, 26% property, 26% drug, 18% public order, and 10% other). Thirty-six percent of the 800,000 Americans on parole have a drug crime as their most serious offense.
220. Id. at 36 app. tbl.15, 27 app. tbl.6 (finding that the breakdown for parolees, by most serious offense, was as follows: 27% violent, 23% property, 36% drug, 3% weapon, and 10% other).
221. Ronald Reagan provides an example of the point of view to which progressives are reacting: Choosing a career in crime is not the result of poverty or of an unhappy childhood or of a misunderstood adolescence; it's the result of a conscious, willful, selfish choice made by some who consider themselves above the law, who seek to exploit the hard work and, sometimes, the very lives of their fellow citizens. Ronald W. Reagan, Remarks at the Annual Conference of the National Sheriffs' Association in Hartford, Connecticut (June 20, 1984), in 1 PUB. PAPERS 884+886 (1986).
222. ALEXANDER, Supra Note 9, at 171.
223. Supra Note 90 and accompanying text (discussing how New Jim Crow writers avoid discussion of violent crime when addressing mass incarceration).
224. ALEXANDER, Supra Note 9, at 1.
225. Joseph W. Queen, Man Gets Life in Miss. Slaying, NEWSDAY, Aug. 14, 1988.
226. Stephen L. Carter, When Victims Happen To Be Black, 97 YALE L.J. 420 (1988) (describing and problematizing a categorical dichotomy between socially constructed concepts of blackness and victimhood). Although my primary concern is analytical, overlooking violence is also a strategic error, because those who seek to challenge mass incarceration render themselves ineffectual in policy debates when they avoid discussing violent crime. After all, advocates for tough-on-crime measures are not going to stop discussing violence; and, by ceding this terrain to them, progressives and the civil rights community allow those who seek more punitive crime policy to present themselves as the sole defenders of public safety. This, in turn, diminishes progressives' chances of building an effective movement to counter mass incarceration.
227. A Forman, Community Policing Supra Note 7, at 27-28 (arguing that because low-income youth are both disproportionately victimized by crime and targeted for aggressive policing, it is important to seek their participation in well-designed community policing programs).
228. For a more detailed account, see James Forman & David Domenici, Circle of Trust: The Story of the See Forever School, in STARTING UP: CRITICAL LESSONS FROM 10 NEW SCHOOLS (Lisa Arrastia & Marv Hoffman eds., forthcoming 2012).
229. As we attempted to create a safe school for these students, we learned that we could take safety seriously without adopting the zero-tolerance measures that were growing in popularity at that time. For a more thorough discussion of our alternative approach to combating violence, see Id. at 15-19.
230. This quotation is from an interview with Bobby in a documentary film about the See Forever School's first year. INNOCENT UNTIL PROVEN GUILTY (Big Mouth Productions 1999).
231. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003).
232. ASHLEY NELLIS & RYAN S. KING, THE SENTENCING PROJECT, NO EXIT: THE EXPANDING USE OF LIFE SENTENCES IN AMERICA 3 (2009).
233. As a result of longer sentences, the number of elderly prisoners continues to grow, despite the fact that older prisoners cost more to incarcerate and are less likely to offend if released. THE PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 12-13 (2008).
234. While we don't know anything about the life of Bobby's assailant, the life histories of others like him demonstrate that the state frequently squanders opportunities to intervene before adolescents become murderers. I have addressed these questions elsewhere. See, e.g. Domenici & Forman, Supra Note 8 (describing efforts to improve educational programs for incarcerated youth in Washington, D.C.)
235. Forman, Jr., Mass Incarceration, Supra Note 7, at 1006-09 (2010) (arguing that prisons that treat prisoners well and offer effective programs serve public safety)
236. I return briefly to these themes in the Conclusion. At this point in the letter, King was responding to those who counseled Negroes to slow down in their quest for freedom. King's response, in part, was as follows: I guess it is easy for those who have never felt the stinging darts of segregation to say "wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky. then you will understand why we find it difficult to wait.
237. Martin Luther King, Letter from Birmingham Jail (originally published as The Negro Is Your Brother), ATLANTIC MONTHLY, Aug. 1963, at 80.
238. Michelle Alexander appreciates this point. See ALEXANDER, Supra Note 9, at 232-34 (arguing that affirmative action has, to some extent, helped affluent African Americans while serving as an inadequate substitute for the more radical changes to the economic and social structure needed to help poor African American communities).
239. A Nunn, Supra Note 89, at 387 (discussing the ways in which mass incarceration, resulting from the War on Drugs, is a war against African Americans as a whole, without noting any differential impact based on class)
240. Eric E. Sterling, Drug Laws and Thought Crime, 10 TEMP. POL. & CIV. RTS. L. REV. 327, 335-36 (2001) (concluding that the criminal justice system in America today is the New Jim Crow without mentioning the impact of class distinctions)
241. Black, Supra Note 16, at 184-90 (discussing the racialization of the War on Drugs without acknowledging how middle-and upper-class African Americans are differently impacted by the policies)
242. Goldman, Supra Note 16, at 628-32 (discussing racial bias in the criminal justice system in the era of mass incarceration without mentioning how the system differentially impacts African Americans at different income and education levels). Even writers who understand the role of class in distinguishing between whites and African Americans fail to see the role that class plays within the African American community.
243. Benjamin D. Steiner & Victor Argothy, White Addiction: Racial Inequality, Racial Ideology, and the War on Drugs, 10 TEMP. POL. & CIV. RTS. L. REV. 443 (2001) (discussing class distinctions between whites and blacks as a cause of interracial disparities in incarceration rates while overlooking class distinctions within the black community as a source of intraracial incarceration disparities).
244. Loïc Wacquant, Class, Race & Hyperincarceration in Revanchist America, DAEDALUS, Summer 2010, at 74+79 ("[T]he rapid 'blackening' of the prison population even as serious crime 'whitened' is due exclusively to the astronomical increase in the incarceration rates of lower-class African Americans.").
245. WESTERN, Supra Note 2, at 27-28 fig.1.4. Western does not report whether the decrease is statistically significant.
246. The lifetime risk of incarceration for whites who dropped out of high school is 11.2%; for those who attended college, it is only 0.7%. Id., at 26-28.
247. CAROLINE WOLF HARLOW, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, EDUCATION AND CORRECTIONAL POPULATIONS 2 tbl.1 (2003). Federal prisoners were more likely to have graduated from college, with 8% having degrees.
248. Id. Caroline W.H.
249. Id.
250. RESEARCH AND PLANNING DIV., MASS. DEP'T OF CORRECTIONS, JANUARY 1, 2009 INMATE STATISTICS 22 tbl.22 (2009).
251. Allen Beck, et al, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SURVEY OF STATE PRISON INMATES, 1991, at 3 (1993).
252. For an excellent account of this phenomenon, see generally EUGENE ROBINSON, DISINTEGRATION: THE SPLINTERING OF BLACK AMERICA (2010)
253. WESTERN, Supra Note 2, at 90-91 (estimating that joblessness among young black men has increased from 27% in 1980 to 32.4% in 2000 once incarceration rates are included).
254. WILLIAM JULIUS WILSON, MORE THAN JUST RACE 100-05 (2009) (discussing a rise in the percentage of black children born to unmarried women and documenting how this disadvantages black children).
255. All figures in this paragraph reflect inflation-adjusted dollars and are derived from Carmen Navas-Walt, et al., U.S. DEP'T OF COMMERCE, P60-238, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2009, at 36-37 tbl.A-1 (2010).
256. U.S. CENSUS BUREAU, CPS HISTORICAL TIME SERIES, TABLE A-2: PERCENT OF PEOPLE 25 YEARS AND OVER WHO HAVE COMPLETED HIGH SCHOOL OR COLLEGE, BY RACE, HISPANIC ORIGIN AND SEX: SELECTED YEARS 1940 TO 2010 (2010), http://www.census.gov/hhes/socdemo/education/data/cps/historical/index.h tml.
257. Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. COLO. L. REV. 939+939 (1997) ("[O]ne of the flaws of race-based affirmative action is that its main beneficiaries are economically privileged members of the eligible minority groups.").
258. Id at 967-88 ("[T]he lingering effects of past discriminating suppress the economic performance of the black middle class.").
259. David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 MINN. L. REV. 265+269 n.18 (1999).
260. ALEX HALEY & MALCOLM X, THE AUTOBIOGRAPHY OF MALCOLM X 327 (1992) (recounting a conversation in which Malcolm X asked a black associate professor, "Do you know what white racists call black Ph.D's?. Nigger!").
261. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 376 (1987).
262. Id. at 376 n.222
263. Supra Note 122 and accompanying text (noting instances where other authors failed to acknowledge the importance of class when discussing mass incarceration)
264. ALEXANDER, Supra Note 9, at 157 ("Practically from cradle to grave, black males in urban ghettos are treated like current or future criminals.")
265. As Alexander puts it: Try telling a sixteen-year-old black youth in Louisiana who is facing a decade in adult prison and a lifetime of social, political, and economic exclusion that your civil rights organization is not doing much to end the War on Drugs-but would he like to hear about all the great things that are being done to save affirmative action? There is a fundamental disconnect today between the world of civil rights advocacy and the reality facing those trapped in the new racial undercaste. Id., at 234.
266. Id. at 192
267. Id (note)
268. Kennedy, Supra Note 16, at 505-06 (discussing the New Jim Crow analogy while ignoring whites)
269. Roberts, Supra Note 16, at 263 (same)
270. Tyson, Supra Note 16, at 348-49 (same)
271. Black, Supra Note 16, at 178 (same).
272. ALEXANDER, Supra Note 9, at 202.
273. W.J. sabol, Supra Note 1, at 2 (explaining that in 2008, 33% of prisoners were white).
274. Compare A CAHALAN, Supra Note 4, at 29 tbl.3-2
275. HEATHER C. WEST & WILLIAM J. SABOL, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2008, at 3 tbl.2 (2009).
276. IDAHO DEP'T OF CORRECTION, ANNUAL STATISTICAL REPORT: FISCAL YEAR 2010, at 7 (2010).
277. Press Release, American Civil Liberties Union, ACLU Lawsuit Charges Idaho Prison Officials Promote Rampant Violence (Mar. 11, 2010), available at http://www.aclu.org/prisoners-rights/aclu-lawsuit-charges-idaho-prison-o fficials-promote-rampant-violence (quoting ACLU senior staff attorney Stephen Pevar).
278. JANIS WOLAK, CRIMES AGAINST CHILDREN RESEARCH CTR., INTERNET SEX CRIMES AGAINST MINORS: THE RESPONSE OF LAW ENFORCEMENT, at 8 (2003) (describing a study sponsored by the Department of Justice reporting that the "vast majority of [Internet sex-crime] offenders were non-Hispanic white males older than 25 who were acting alone")
279. Loren Rigsby, A Call for Judicial Scrutiny: How Increased Judicial Discretion Has Led to Disparity and Unpredictability in Federal Sentencings for Child Pornography, 33 SEATTLE U. L. REV. 1319+1333-34 (2010) (explaining that 85.6% of child pornography defendants are white, and that these defendants are, on average, much older and more educated than the majority of defendants in federal prosecutions)
280. Peggy O'Hare, Waging the War on Child Porn/Prosecutors Enlist Help To Track Abusers, Halt Web Images, HOUS. CHRON, Dec. 2, 2007, at A1+A15 ("The Chronicle's research revealed almost all those charged with the offense in the greater Houston area between Jan. 1, 2004, and May 31, 2007, were white men, half of them middle-aged or older.").
281. JAMES C. DUFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2007 ANNUAL REPORT OF THE DIRECTOR 27 (2007) (discussing the increase in prosecutions after the enactment of the Child Pornography Prevention Act of 1996, which criminalized the creation of child pornography using new technologies).
282. U.S. SEN TEN CIN G CO M M'N, 2008 SOURCEBOOK OF FEDERAL SENTENCING GUIDELINES, 29 tbl.13, 39 tbl.17
283. Rigsby, Supra Note 153, at 1331. Over the past fifteen years, the punishment for possession of child pornography has increased and become more complicated through congressional action and changes to the Sentencing Guidelines. Currently, the mandatory minimum for a charge of possession of child pornography is five years.
284. 18 U.S.C.A. § 2252A(b)(1) (Suppl. 2011). However, in the vast majority of cases, this sentence is increased through Sentencing Guideline § 2G2.2's aggravating factors, which include use involving a computer, possession involving large numbers of images, and use involving material portraying sadistic or masochistic conduct or violence.
285. U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 (2008). Commentators have been critical of these increases, as have been district courts, which imposed sentences below the Sentencing Guidelines' suggested length in 43% of cases in 2009.
286. Lynn Adelman & Jon Deitrich, Improving the Guidelines Through Critical Evaluation: An Important New Role for District Courts, 57 DRAKE L. REV. 575+584-85 (2009)
287. Jelani Jefferson Exum, Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses, 16 RICH. J.L. & TECH. 8+14-15 (2010)
288. Jesse P. Basbaum, Note, Inequitable Sentencing for Possession of Child Pornography: A Failure To Distinguish Voyeurs from Pederasts, 61 HASTINGS L.J. 1281+1302 (2010)
289. John Gabriel Woodlee, Note, Congressional Manipulation of the Sentencing Guideline for Child Pornography Possession: An Argument For or Against Deference?, 60 DUKE L.J. 1015+1016 (2011).
290. From 1999 to 2005, the number of blacks serving time for drug offenses in state prisons declined by more than 31,000, while the number of whites serving time for drug offenses increased by slightly more than 20,000. As a result, whereas African Americans had constituted 58% of those serving time in state prisons for drug offenses in 1999, by 2005 that number had fallen to 45%. MARC MAUER, THE SENTENCING PROJECT, THE CHANGING RACIAL DYNAMICS OF THE WAR ON DRUGS 5 (2009). Blacks remain overrepresented, of course, but the scale of this overrepresentation has diminished. The Bureau of Justice Statistics (BJS) uses the term "Hispanic" rather than "Latino." For the sake of consistency, I use the term Hispanic to follow BJS terminology
291. Alexander, to her credit, acknowledges this omission, noting that "relatively little is said here about the unique experience of women, Latinos, and immigrants in the criminal justice system, though these groups are particularly vulnerable to the worst abuses and suffer in ways that are important and distinct." A ALEXANDER, Supra Note 9, at 15-16
292. MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, UNEVEN JUSTICE: STATE RATES OF INCARCERATION BY RACE AND ETHNICITY 12 n.14 (July 2007) ("Reporting on Hispanics in the criminal justice system has been limited and often inaccurate over many years, as evidenced by the fact that 11 states in this analysis do not provide any data on Hispanic inmates.")
293. Damian J. Martinez, Felony Disenfranchisement and Voting Participation: Considerations in Latino Ex-prisoner Reentry, 36 COLUM. HUM. RTS. L. REV. 217+222 (2004) ("[G]overnmentally-collected criminal justice data during the 1980s and 1990s lumped incarcerated Latinos into the racial classifications of whites and African Americans.")
294. Id. at 223-24 (noting that even the category Latino is overbroad, and encouraging researchers to focus on differences between Latino subgroups).
295. Some of the early important cases challenging segregation involved Hispanics. See, e.g., Hernandez V. Texas, 347 U.S. 475 (1954) (striking down Jim Crow jury practices that excluded Mexican Americans from juries)
296. Mendez V. Westminister Sch. Dist., 64 F. Suppl. 544 (C.D. Cal. 1946), aff'd, 161 F.2d 774 (9th Cir. 1947) (en banc) (striking down segregation of Mexican and Mexican-American students)
297. Ian Haney López & Michael A. Olivas, Jim Crow, Mexican-Americans and the Anti-subordination Constitution: The Story of Hernandez V. Texas, in RACE LAW STORIES 273+273-74 (Rachel F. Moran & Devon W. Corbado eds., 2008) (discussing the role of Hernandez v. Texas as a civil rights ruling by the Warren Court, taking place before Brown v. Board of Education).
298. MAUER & KING, Supra Note 159, at 2.
299. Id. at 3+12 n.14
300. A Martinez, Supra Note 159, at 222 (suggesting that poorly collected data contribute to the undercounting of latinos).
301. Martinez, Supra Note 159, at 222, 224-25.
302. Justin Driver, Rethinking the Interest-Convergence Thesis, 105 NW. U. L. REV. 149-172 (2011) ("Contending that the existence of blacks today can be analogized to people who were literally (not metaphorically) denied their freedom or to people who had their liberty. circumscribed by Jim Crow minimizes the suffering of individuals who endured the yoke of unrelenting racial oppression.").
303. Buckman and Lamberth, for example, invoke the term "Jim Crow" but do not define it Buckman & Lamberth, Supra Note 11, at 14.
304. Glasser offers only this: "Jim Crow laws enforced a rigid system of segregation following the Civil War and the Reconstruction Era." Glasser, Supra Note 13, at 703 n. 2.
305. Alexander has the most to say about it, but even her treatment is brief-ten pages of a 208-page book. ALEXANDER, Supra Note 9, at 30-40.
306. One important exception is ROBERT PERKINSON, TEXAS TOUGH: THE RISE OF AMERICA'S PRISON EMPIRE (2010). I acknowledge that there is an alternative view. Perhaps the New Jim Crow analogy will instead serve to reinforce our memory of that regime. The analogy has the following structure: "X was awful, and Y is a lot like X." Perhaps this necessarily reaffirms that X (here, Jim Crow) was terrible, even if the proponents of the analogy spend little time arguing the point.
307. SETH CAGIN & PHILIP DRAY, WE ARE NOT AFRAID: THE STORY OF GOODMAN, SCHWERNER, AND CHANEY AND THE CIVIL RIGHTS CAMPAIGN FOR MISSISSIPPI (1988)
308. THE LYNCHING OF EMMETT TILL: A DOCUMENTARY NARRATIVE (Christopher Metress ed., 2002). Not long after this incident I was interviewed for a magazine story on the children of civil rights leaders. I related the incident then, and have relied on the article to establish some of the particulars
309. Seth Cagin, Children of Radicals, ROLLING STONE, Sept. 26, 1985, at 91+95.
310. David Garland, Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth-Century America, 39 LAW & SOC'Y REV. 793, 794 (2005). 297 U.S. 278 (1936)
311. Id. at 282
312. For example, Alexander writes: White drug "criminals" are collateral damage in the War on Drugs because they have been harmed by a war declared with blacks in mind. While this circumstance is horribly unfortunate for them, it does create important opportunities for a multiracial, bottom-up resistance movement, one in which people of all races can claim a clear stake. For the first time in our nation's history, it may become readily apparent to whites how they, too, can be harmed by anti-black racism-a fact that, until now, has been difficult for many to grasp. ALEXANDER, Supra Note 9, at 202.
313. Derrick A. Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518+523 (1980) (arguing that the law will change to serve black interests only when black interests align with those of whites)
314. Darren Lenard Hutchinson, Critical Race Histories: In and Out, 53 AM. U. L. REV. 1187+1200 (2004) ("The black/white paradigm also prevents persons of color from engaging in coalition politics. By treating racism as a problem that affects blacks primarily (or exclusively), racial discourse in the United States divides persons of color who could align to create formidable political forces in the battle for racial justice.")
315. Rachel E. Barkow, Federalism and the Politics of Sentencing, 105 COLUM. L. REV. 1276+1285-90 (2005) (noting that budgetary concerns have driven recent state sentencing reforms)
316. Charlie Savage, Trend To Lighten Harsh Sentences Catches On in Conservative States, N.Y. TIMES, Aug. 13, 2011, at A14 (describing state penal reforms motivated by cost-cutting considerations).
317. For example, in Part III, I criticized the New Jim Crow writers for advancing a reductionist view of the history of mass incarceration, in which tough-on-crime laws are nothing more than the results of opportunistic politicians pandering to racist voters. In Part IV, I pointed out that even Washington, D.C., with black leaders and a majority-black voting population, has adopted policies that produce sky-high incarceration rates
318. JUDITH GREENE & MARC MAUER, DOWNSCALING PRISONS: LESSONS FROM FOUR STATES 60 (2010), available at http://www.sentencingproject.org/doc/publications/publications/inc_Downs calingPrisons2010.pdf (detailing reductions in state prison populations obtained by Kansas, New York, Michigan, and New Jersey during the late 1990s and early 2000s).
319. FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE: NEW YORK'S LESSONS FOR URBAN CRIME AND ITS CONTROL 3-14 (2012) (documenting New York City's crime decline between 1990 and 2009)
320. Id. at 75-77 (describing how New York City's incarceration rate declined between 1990 and 2008 while national incarceration rates increased during those same years)
321. Id. at 207-209 (discussing declining incarceration rates for minority males in New York City)
322. The Decline in Crime in New York City (1990-2010), VERA INST. OF JUST. (Oct. 29, 2010), http://www.vera.org/videos/franklinzimring-decline-crime-new-york-city.
323. MARK A.R. KLEIMAN, WHEN BRUTE FORCE FAILS: HOW TO HAVE LESS CRIME AND LESS PUNISHMENT 175-84 (2009) (providing recommendations for proven and promising crime control strategies that involve policing, sentencing, probation, and corrections reform)
324. A. V. Papachristos et al., Attention Felons: Evaluating Project Safe Neighborhoods in Chicago, 4 J. EMPIRICAL LEGAL STUD. 223+224 (2007) (discussing Chicago's Project Safe Neighborhoods, which reduced homicide rates by 35% in targeted neighborhoods)
325. Supra Notes 124-26 and accompanying text (listing the differences in incarceration rates among African American men who are either college-educated or high school dropouts and whites who are college-educated or high school dropouts)
326. A Kleiman, Supra Note 179, at 188-89 (offering recommendations for effective social-service and other nonpunitive anti-crime measures)
327. Supra Notes 88-90 and accompanying text (describing the tendency among New Jim Crow writers to focus on drug crimes and ignore violent crimes when discussing mass incarceration).
328. Brown v. Plata, 131 S. Ct. 1910+1922-23 (2011).
329. Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JIM P, 2009 WL 2430820, at 84 (E.D. Cal. Aug. 4, 2009). Coleman was combined with Plata v. Schwarzenegger, No. C01-1351 THE, 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005).
330. Plata, No. 09-1233, slip op. at 38 (U.S. May 23, 2011).
331. Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U. L. REV. 881+911-23 (2009) (arguing that the state's "carceral burden" includes an affirmative obligation to protect prisoners from serious physical and psychological harm).
332. TIMOTHY A. HUGHES & DORIS JAMES WILSON, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, REENTRY TRENDS IN THE UNITED STATES (2002), available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1138 (noting that over 95% of state prisoners will be released eventually)
333. MARK MOTIVANS & STEVEN K. SMITH, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2004, at 75 (2006) (noting that only 1% of federal prisoners receive life without parole or death sentences and that among the other 99% of federal prisoners, the average sentence is sixty months in prison).
334. TA-NEHISI COATES, THE BEAUTIFUL STRUGGLE: A FATHER, TWO SONS, AND AN UNLIKELY ROAD TO MANHOOD 29-30 (2008).
335. RUTH & REITZ, Supra Note 46, at 17 (describing the rise in homicide rates and concluding that by the early 1990s "the United States was the most dangerous of first-world countries.")
336. ZIMRING, Supra Note 178, at 81 (noting that after 1985, "rates of life-threatening violence in the United States turned up again, led by very substantial increases in homicide by persons 15-29, primarily minority young persons in the nation's biggest cities.").
337. 1985 FBI UNIFORM CRIME REPORT FOR THE UNITED STATES 361 (reporting that 147 murders and non-negligent manslaughters occurred in Washington, D.C. in 1985)
338. 1991 FBI UNIFORM CRIME REPORT FOR THE UNITED STATES 105 (reporting that 482 such homicides occurred in Washington, D.C. in 1991).
339. DAVID M. KENNEDY, DON'T SHOOT: ONE MAN, A STREET FELLOWSHIP, AND THE END OF VIOLENCE IN INNER-CITY AMERICA 12 (2011).
340. Id. at 44-75 (describing efforts to reduce gun violence in Boston)
341. Id. at 155-84 (describing an initiative to reduce violence associated with drug markets in High Point, North Carolina).
342. Papachristos, Supra Note 179, at 224 (evaluating a program with many similar "focused deterrence" elements).
343. ZIMRING, Supra Note 178, at 173-95
344. Supra Note 179 and accompanying text (outlining methods for crime reduction)