Social Science

Table of Contents

Title Page

Dedication

Acknowledgements

Preface

Introduction

Chapter 1 – The Rebirth of Caste

The Birth of Slavery

The Death of Slavery

The Birth of Jim Crow

The Death of Jim Crow

The Birth of Mass Incarceration

Chapter 2 – The Lockdown

Rules of the Game

Unreasonable Suspicion

Just Say No

Poor Excuse

Kissing Frogs

It Pays to Play

Waging War

Finders Keepers

The Shakedown

Legal Misrepresentation

Bad Deal

Time Served

The Prison Label

Chapter 3 – The Color of Justice

Picking and Choosing—The Role of Discretion

Closing the Courthouse Doors—McCleskey v. Kemp

Cracked Up—Discriminatory Sentencing in the War on Drugs

Charging Ahead—Armstrong v. United States

In Defense of the All-White Jury—Purkett v. Elm

The Occupation—Policing the Enemy

Unconventional Wisdom

Hollow Hope

Race as a Factor

The End of an Era

Chapter 4 – The Cruel Hand

Brave New World

No Place Like Home

Boxed In

The Black Box

Debtor’s Prison

Let Them Eat Cake

The Silent Minority

The Pariahs

Eerie Silence

Passing (Redux)

Gangsta Love

The Minstrel Show

The Antidote

Chapter 5 – The New Jim Crow

States of Denial

How It Works

Nothing New?

Mapping the Parallels

The Limits of the Analogy

Chapter 6 – The Fire This Time

Rethinking Denial—Or, Where Are Civil Rights Advocates When You Need Them?

Tinkering Is for Mechanics, Not Racial-Justice Advocates

Let’s Talk About Race—Resisting the Temptation of Colorblind Advocacy

Against Colorblindness

The Racial Bribe—Let’s Give It Back

Obama—the Promise and the Peril

All of Us or None

Notes

Index

Copyright Page

For Nicole, Jonathan, and Corinne

Acknowledgments

It is often said, “It takes a village to raise a child.” In my case, it has taken a village to write this book. I gave birth to three children in four years, and in the middle of this burst of joyous activity in our home, I decided to write this book. It was written while feeding babies and during nap times. It was written at odd hours and often when I (and everyone else in the household) had little sleep. Quitting the endeavor was tempting, as writing the book proved far more challenging than I expected. But just when I felt it was too much or too hard, someone I loved would surprise me with generosity and unconditional support; and just when I started to believe the book was not worth the effort, I would receive—out of the blue—a letter from someone behind bars who would remind me of all the reasons that I could not possibly quit, and how fortunate I was to be sitting in the comfort of my home or my office, rather than in a prison cell. My colleagues and publisher supported this effort, too, in ways that far exceeded the call of duty. I want to begin, then, by acknowledging those people who made sure I did not give up—the people who made sure this important story got told.

First on this list is Nancy Rogers, who was dean of the Moritz College of Law at Ohio State University until 2008. Nancy exemplifies outstanding leadership. I will always remember her steadfast encouragement, support, and flexibility, as I labored to juggle my commitments to work and family. Thank you, Nancy, for your faith in me. In this regard, I also want to thank john powell, director of the Kirwan Institute for the Study of Race and Ethnicity. He immediately understood what I hoped to accomplish with this book and provided critical institutional support.

My husband, Carter Stewart, has been my rock. Without ever once uttering a word of complaint, he has read and reread drafts and rearranged his schedule countless times to care for our children, so that I could make progress with my writing. As a federal prosecutor, he does not share my views about the criminal justice system, but his different worldview has not, even for a moment, compromised his ability to support me, lovingly, at every turn in my efforts to share my truth. I made the best decision of my life when I married him.

My mother and sister, too, have been blessings in my life. Determined to ensure that I actually finished this book, they have exhausted themselves chasing after the little people in my home, who are bundles of joy (and more than a little tiring). Their love and good humor have been food for my soul. Special thanks is also owed Nicole Hanft, whose loving kindness in caring for our children will forever be appreciated.

I deeply regret that I may never be able to thank, in person, Timothy Demetrius Johnson, Tawan Childs, Jacob McNary, Timothy Anderson, and Larry Brown-Austin, who are currently incarcerated. Their kind letters and expressions of gratitude for my work motivated me more than they could possibly know, reminding me that I could not rest until this book was done.

I am also grateful for the support of the Open Society Institute of the Soros Foundation, as well as for the generosity of the many people who have reviewed and commented on portions of the manuscript or contributed to it in some way, including Sharon Davies, Andrew Grant- Thomas, Eavon Mobley, Marc Mauer, Elaine Elinson, Johanna Wu, Steve Menendian, Hiram José Irizarry Osorio, Ruth Peterson, Hasan Jeffries, Shauna Marshall, and Tobias Wolff. My dear friend Maya Harris is owed special thanks for reading multiple drafts of various chapters, never tiring of the revision process. Lucky for me, my sister, Leslie Alexander, is an African American history scholar, so I benefited from her knowledge and critical perspective regarding our nation’s racial history. Any errors in fact or judgment are entirely my own, of course. I also want to express my appreciation to my outstanding editor and publisher, Diane Wachtell of The New Press, who believed in this book before I had even written a word (and waited very patiently for the final word to be written).

A number of my former students have made important contributions to this book, including Guylando Moreno, Monica Ramirez, Stephanie Beckstrom, Lacy Sales, Yolanda Miller, Rashida Edmonson, Tanisha Wilburn, Ryan King, Allison Lammers, Danny Goldman, Stephen Kane, Anu Menon, and Lenza McElrath. Many of them worked without pay, simply wanting to contribute to this effort in some way.

I cannot close without acknowledging the invaluable gifts I received from my parents, who ultimately made this book possible by raising me. I inherited determination from my mother, who astounds me with her ability to overcome extraordinary obstacles and meet each day with fresh optimism. I owe my vision for social justice to my father, who was a dreamer and never ceased to challenge me to probe deeper, for greater truth. I wish he were still alive to see this book; though I suspect he knows something of it still. This book is for you, too, Dad. May you rest in peace.

Preface

This book is not for everyone. I have a specific audience in mind—people who care deeply about racial justice but who, for any number of reasons, do not yet appreciate the magnitude of the crisis faced by communities of color as a result of mass incarceration. In other words, I am writing this book for people like me—the person I was ten years ago. I am also writing it for another audience—those who have been struggling to persuade their friends, neighbors, relatives, teachers, co-workers, or political representatives that something is eerily familiar about the way our criminal justice system operates, something that looks and feels a lot like an era we supposedly left behind, but have lacked the facts and data to back up their claims. It is my hope and prayer that this book empowers you and allows you to speak your truth with greater conviction, credibility, and courage. Last, but definitely not least, I am writing this book for all those trapped within America’s latest caste system. You may be locked up or locked out of mainstream society, but you are not forgotten.

Introduction

Jarvious Cotton cannot vote. Like his father, grandfather, great-grandfather, and great-great- grandfather, he has been denied the right to participate in our electoral democracy. Cotton’s family tree tells the story of several generations of black men who were born in the United States but who were denied the most basic freedom that democracy promises—the freedom to vote for those who will make the rules and laws that govern one’s life. Cotton’s great-great- grandfather could not vote as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy tests. Today, Jarvious Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole.1

Cotton’s story illustrates, in many respects, the old adage “The more things change, the more they remain the same.” In each generation, new tactics have been used for achieving the same goals—goals shared by the Founding Fathers. Denying African Americans citizenship was deemed essential to the formation of the original union. Hundreds of years later, America is still not an egalitarian democracy. The arguments and rationalizations that have been trotted out in support of racial exclusion and discrimination in its various forms have changed and evolved, but the outcome has remained largely the same. An extraordinary percentage of black men in the United States are legally barred from voting today, just as they have been throughout most of American history. They are also subject to legalized discrimination in employment, housing, education, public benefits, and jury service, just as their parents, grandparents, and great- grandparents once were.

What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it. In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

I reached the conclusions presented in this book reluctantly. Ten years ago, I would have argued strenuously against the central claim made here—namely, that something akin to a racial caste system currently exists in the United States. Indeed, if Barack Obama had been elected president back then, I would have argued that his election marked the nation’s triumph over racial caste—the final nail in the coffin of Jim Crow. My elation would have been tempered by the distance yet to be traveled to reach the promised land of racial justice in America, but my conviction that nothing remotely similar to Jim Crow exists in this country would have been steadfast.

Today my elation over Obama’s election is tempered by a far more sobering awareness. As an African American woman, with three young children who will never know a world in which a black man could not be president of the United States, I was beyond thrilled on election night. Yet when I walked out of the election night party, full of hope and enthusiasm, I was immediately reminded of the harsh realities of the New Jim Crow. A black man was on his knees in the gutter, hands cuffed behind his back, as several police officers stood around him talking, joking, and ignoring his human existence. People poured out of the building; many stared for a moment at the black man cowering in the street, and then averted their gaze. What did the election of Barack Obama mean for him?

Like many civil rights lawyers, I was inspired to attend law school by the civil rights victories of the 1950s and 1960s. Even in the face of growing social and political opposition to remedial policies such as affirmative action, I clung to the notion that the evils of Jim Crow are behind us and that, while we have a long way to go to fulfill the dream of an egalitarian, multiracial democracy, we have made real progress and are now struggling to hold on to the gains of the past. I thought my job as a civil rights lawyer was to join with the allies of racial progress to resist attacks on affirmative action and to eliminate the vestiges of Jim Crow segregation, including our still separate and unequal system of education. I understood the problems plaguing poor communities of color, including problems associated with crime and rising incarceration rates, to be a function of poverty and lack of access to quality education—the continuing legacy of slavery and Jim Crow. Never did I seriously consider the possibility that a new racial caste system was operating in this country. The new system had been developed and implemented swiftly, and it was largely invisible, even to people, like me, who spent most of their waking hours fighting for justice.

I first encountered the idea of a new racial caste system more than a decade ago, when a bright orange poster caught my eye. I was rushing to catch the bus, and I noticed a sign stapled to a telephone pole that screamed in large bold print: THE DRUG WAR IS THE NEW JIM CROW. I paused for a moment and skimmed the text of the flyer. Some radical group was holding a community meeting about police brutality, the new three-strikes law in California, and the expansion of America’s prison system. The meeting was being held at a small community church a few blocks away; it had seating capacity for no more than fifty people. I sighed, and muttered to myself something like, “Yeah, the criminal justice system is racist in many ways, but it really doesn’t help to make such an absurd comparison. People will just think you’re

crazy.” I then crossed the street and hopped on the bus. I was headed to my new job, director of the Racial Justice Project of the American Civil Liberties Union (ACLU) in Northern California.

When I began my work at the ACLU, I assumed that the criminal justice system had problems of racial bias, much in the same way that all major institutions in our society are plagued with problems associated with conscious and unconscious bias. As a lawyer who had litigated numerous class-action employment-discrimination cases, I understood well the many ways in which racial stereotyping can permeate subjective decision-making processes at all levels of an organization, with devastating consequences. I was familiar with the challenges associated with reforming institutions in which racial stratification is thought to be normal—the natural consequence of differences in education, culture, motivation, and, some still believe, innate ability. While at the ACLU, I shifted my focus from employment discrimination to criminal justice reform and dedicated myself to the task of working with others to identify and eliminate racial bias whenever and wherever it reared its ugly head.

By the time I left the ACLU, I had come to suspect that I was wrong about the criminal justice system. It was not just another institution infected with racial bias but rather a different beast entirely. The activists who posted the sign on the telephone pole were not crazy; nor were the smattering of lawyers and advocates around the country who were beginning to connect the dots between our current system of mass incarceration and earlier forms of social control. Quite belatedly, I came to see that mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.

In my experience, people who have been incarcerated rarely have difficulty identifying the parallels between these systems of social control. Once they are released, they are often denied the right to vote, excluded from juries, and relegated to a racially segregated and subordinated existence. Through a web of laws, regulations, and informal rules, all of which are powerfully reinforced by social stigma, they are confined to the margins of mainstream society and denied access to the mainstream economy. They are legally denied the ability to obtain employment, housing, and public benefits—much as African Americans were once forced into a segregated, second-class citizenship in the Jim Crow era.

Those of us who have viewed that world from a comfortable distance—yet sympathize with the plight of the so-called underclass—tend to interpret the experience of those caught up in the criminal justice system primarily through the lens of popularized social science, attributing the staggering increase in incarceration rates in communities of color to the predictable, though unfortunate, consequences of poverty, racial segregation, unequal educational opportunities, and the presumed realities of the drug market, including the mistaken belief that most drug dealers are black or brown. Occasionally, in the course of my work, someone would make a remark suggesting that perhaps the War on Drugs is a racist conspiracy to put blacks back in their place. This type of remark was invariably accompanied by nervous laughter, intended to convey the impression that although the idea had crossed their minds, it was not an idea a reasonable person would take seriously.

Most people assume the War on Drugs was launched in response to the crisis caused by crack cocaine in inner-city neighborhoods. This view holds that the racial disparities in drug convictions and sentences, as well as the rapid explosion of the prison population, reflect nothing more than the government’s zealous—but benign—efforts to address rampant drug crime in poor, minority neighborhoods. This view, while understandable, given the sensational media coverage of crack in the 1980s and 1990s, is simply wrong.

While it is true that the publicity surrounding crack cocaine led to a dramatic increase in funding for the drug war (as well as to sentencing policies that greatly exacerbated racial disparities in incarceration rates), there is no truth to the notion that the War on Drugs was launched in response to crack cocaine. President Ronald Reagan officially announced the current drug war in 1982, before crack became an issue in the media or a crisis in poor black neighborhoods. A few years after the drug war was declared, crack began to spread rapidly in

the poor black neighborhoods of Los Angeles and later emerged in cities across the country.2

The Reagan administration hired staff to publicize the emergence of crack cocaine in 1985 as part of a strategic effort to build public and legislative support for the war.3 The media campaign was an extraordinary success. Almost overnight, the media was saturated with images of black “crack whores,” “crack dealers,” and “crack babies”—images that seemed to confirm the worst negative racial stereotypes about impoverished inner-city residents. The media bonanza surrounding the “new demon drug” helped to catapult the War on Drugs from an ambitious federal policy to an actual war.

The timing of the crack crisis helped to fuel conspiracy theories and general speculation in poor black communities that the War on Drugs was part of a genocidal plan by the government to destroy black people in the United States. From the outset, stories circulated on the street that crack and other drugs were being brought into black neighborhoods by the CIA. Eventually, even the Urban League came to take the claims of genocide seriously. In its 1990 report “The State of Black America,” it stated: “There is at least one concept that must be recognized if one is to see the pervasive and insidious nature of the drug problem for the African American community. Though difficult to accept, that is the concept of genocide.”4 While the conspiracy theories were initially dismissed as far-fetched, if not downright loony, the word on the street turned out to be right, at least to a point. The CIA admitted in 1998 that guerilla armies it actively supported in Nicaragua were smuggling illegal drugs into the United States—drugs that were making their way onto the streets of inner-city black neighborhoods in the form of crack cocaine. The CIA also admitted that, in the midst of the War on Drugs, it blocked law enforcement efforts to investigate illegal drug networks that were helping to fund its covert war in Nicaragua.5

It bears emphasis that the CIA never admitted (nor has any evidence been revealed to support the claim) that it intentionally sought the destruction of the black community by allowing illegal drugs to be smuggled into the United States. Nonetheless, conspiracy theorists surely must be forgiven for their bold accusation of genocide, in light of the devastation wrought by crack cocaine and the drug war, and the odd coincidence that an illegal drug crisis suddenly appeared in the black community after—not before—a drug war had been declared. In fact, the War on Drugs began at a time when illegal drug use was on the decline.6 During this same time period, however, a war was declared, causing arrests and convictions for drug offenses to skyrocket, especially among people of color.

The impact of the drug war has been astounding. In less than thirty years, the U.S penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.7 The United States now has the highest rate of incarceration in the world, dwarfing the rates of nearly every developed country, even surpassing those in highly repressive regimes like Russia, China, and Iran. In Germany, 93 people are in prison for every 100,000 adults and children. In the United States, the rate is roughly eight times that, or 750 per 100,000.8

The racial dimension of mass incarceration is its most striking feature. No other country in the world imprisons so many of its racial or ethnic minorities. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid. In Washington, D.C., our nation’s capitol, it is estimated that three out of four young black men (and nearly all those in the poorest neighborhoods) can expect to serve time in prison.9 Similar rates of incarceration can be found in black communities across America.

These stark racial disparities cannot be explained by rates of drug crime. Studies show that people of all colors use and sell illegal drugs at remarkably similar rates.10 If there are significant differences in the surveys to be found, they frequently suggest that whites, particularly white youth, are more likely to engage in drug crime than people of color.11 That is not what one would guess, however, when entering our nation’s prisons and jails, which are

overflowing with black and brown drug offenders. In some states, black men have been admitted to prison on drug charges at rates twenty to fifty times greater than those of white men.12 And in major cities wracked by the drug war, as many as 80 percent of young African American men now have criminal records and are thus subject to legalized discrimination for the rest of their lives.13 These young men are part of a growing undercaste, permanently locked up and locked out of mainstream society.

It may be surprising to some that drug crime was declining, not rising, when a drug war was declared. From a historical perspective, however, the lack of correlation between crime and punishment is nothing new. Sociologists have frequently observed that governments use punishment primarily as a tool of social control, and thus the extent or severity of punishment is often unrelated to actual crime patterns. Michael Tonry explains in Thinking About Crime: “Governments decide how much punishment they want, and these decisions are in no simple way related to crime rates.”14 This fact, he points out, can be seen most clearly by putting crime and punishment in comparative perspective. Although crime rates in the United States have not been markedly higher than those of other Western countries, the rate of incarceration has soared in the United States while it has remained stable or declined in other countries. Between 1960 and 1990, for example, official crime rates in Finland, Germany, and the United States were close to identical. Yet the U.S. incarceration rate quadrupled, the Finnish rate fell by 60 percent, and the German rate was stable in that period.15 Despite similar crime rates, each government chose to impose different levels of punishment.

Today, due to recent declines, U.S. crime rates have dipped below the international norm. Nevertheless, the United States now boasts an incarceration rate that is six to ten times greater than that of other industrialized nations16—a development directly traceable to the drug war. The only country in the world that even comes close to the American rate of incarceration is Russia, and no other country in the world incarcerates such an astonishing percentage of its racial or ethnic minorities.

The stark and sobering reality is that, for reasons largely unrelated to actual crime trends, the American penal system has emerged as a system of social control unparalleled in world history. And while the size of the system alone might suggest that it would touch the lives of most Americans, the primary targets of its control can be defined largely by race. This is an astonishing development, especially given that as recently as the mid-1970s, the most well- respected criminologists were predicting that the prison system would soon fade away. Prison did not deter crime significantly, many experts concluded. Those who had meaningful economic and social opportunities were unlikely to commit crimes regardless of the penalty, while those who went to prison were far more likely to commit crimes again in the future. The growing consensus among experts was perhaps best reflected by the National Advisory Commission on Criminal Justice Standards and Goals, which issued a recommendation in 1973 that “no new institutions for adults should be built and existing institutions for juveniles should be closed.”17

This recommendation was based on their finding that “the prison, the reformatory and the jail have achieved only a shocking record of failure. There is overwhelming evidence that these institutions create crime rather than prevent it.”18

These days, activists who advocate “a world without prisons” are often dismissed as quacks, but only a few decades ago, the notion that our society would be much better off without prisons—and that the end of prisons was more or less inevitable—not only dominated mainstream academic discourse in the field of criminology but also inspired a national campaign by reformers demanding a moratorium on prison construction. Marc Mauer, the executive director of the Sentencing Project, notes that what is most remarkable about the moratorium campaign in retrospect is the context of imprisonment at the time. In 1972, fewer than 350,000 people were being held in prisons and jails nationwide, compared with more than 2 million people today. The rate of incarceration in 1972 was at a level so low that it no longer seems in

the realm of possibility, but for moratorium supporters, that magnitude of imprisonment was egregiously high. “Supporters of the moratorium effort can be forgiven for being so naïve,” Mauer suggests, “since the prison expansion that was about to take place was unprecedented in human history.”19 No one imagined that the prison population would more than quintuple in their lifetime. It seemed far more likely that prisons would fade away.

Far from fading away, it appears that prisons are here to stay. And despite the unprecedented levels of incarceration in the African American community, the civil rights community is oddly quiet. One in three young African American men is currently under the control of the criminal justice system—in prison, in jail, on probation, or on parole—yet mass incarceration tends to be categorized as a criminal justice issue as opposed to a racial justice or civil rights issue (or crisis).

The attention of civil rights advocates has been largely devoted to other issues, such as affirmative action. During the past twenty years, virtually every progressive, national civil rights organization in the country has mobilized and rallied in defense of affirmative action. The struggle to preserve affirmative action in higher education, and thus maintain diversity in the nation’s most elite colleges and universities, has consumed much of the attention and resources of the civil rights community and dominated racial justice discourse in the mainstream media, leading the general public to believe that affirmative action is the main battlefront in U.S. race relations—even as our prisons fill with black and brown men.

My own experience reflects this dynamic. When I first joined the ACLU, no one imagined that the Racial Justice Project would focus its attention on criminal justice reform. The ACLU was engaged in important criminal justice reform work, but no one suspected that work would eventually become central to the agenda of the Racial Justice Project. The assumption was that the project would concentrate its efforts on defending affirmative action. Shortly after leaving the ACLU, I joined the board of directors of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. Although the organization included racial justice among its core priorities, reform of the criminal justice system was not (and still is not) a major part of its racial justice work. The Lawyers’ Committee is not alone.

In January 2008, the Leadership Conference on Civil Rights—an organization composed of the leadership of more than 180 civil rights organizations—sent a letter to its allies and supporters informing them of a major initiative to document the voting record of members of Congress. The letter explained that its forthcoming report would show “how each representative and senator cast his or her vote on some of the most important civil rights issues of 2007, including voting rights, affirmative action, immigration, nominations, education, hate crimes, employment, health, housing, and poverty.” Criminal justice issues did not make the list. That same broad- based coalition organized a major conference in October 2007, entitled Why We Can’t Wait: Reversing the Retreat on Civil Rights, which included panels discussing school integration, employment discrimination, housing and lending discrimination, economic justice, environmental justice, disability rights, age discrimination, and immigrants’ rights. Not a single panel was devoted to criminal justice reform.

The elected leaders of the African American community have a much broader mandate than civil rights groups, but they, too, frequently overlook criminal justice. In January 2009, for example, the Congressional Black Caucus sent a letter to hundreds of community and organization leaders who have worked with the caucus over the years, soliciting general information about them and requesting that they identify their priorities. More than thirty-five topics were listed as areas of potential special interest, including taxes, defense, immigration, agriculture, housing, banking, higher education, multimedia, transportation and infrastructure, women, seniors, nutrition, faith initiatives, civil rights, census, economic security, and emerging leaders. No mention was made of criminal justice. “Re-entry” was listed, but a community leader who was interested in criminal justice reform had to check the box labeled “other.”

This is not to say that important criminal justice reform work has not been done. Civil rights advocates have organized vigorous challenges to specific aspects of the new caste system. One notable example is the successful challenge led by the NAACP Legal Defense Fund to a racist drug sting operation in Tulia, Texas. The 1999 drug bust incarcerated almost 15 percent of the black population of the town, based on the uncorroborated false testimony of a single informant hired by the sheriff of Tulia. More recently, civil rights groups around the country have helped to launch legal attacks and vibrant grassroots campaigns against felon disenfranchisement laws and have strenuously opposed discriminatory crack sentencing laws and guidelines, as well as “zero tolerance” policies that effectively funnel youth of color from schools to jails. The national ACLU recently developed a racial justice program that includes criminal justice issues among its core priorities and has created a promising Drug Law Reform Project. And thanks to the aggressive advocacy of the ACLU, NAACP, and other civil rights organizations around the country, racial profiling is widely condemned, even by members of law enforcement who once openly embraced the practice.

Still, despite these significant developments, there seems to be a lack of appreciation for the enormity of the crisis at hand. There is no broad-based movement brewing to end mass incarceration and no advocacy effort that approaches in scale the fight to preserve affirmative action. There also remains a persistent tendency in the civil rights community to treat the criminal justice system as just another institution infected with lingering racial bias. The NAACP’s Web site offers one example. As recently as May 2008, one could find a brief introduction to the organization’s criminal justice work in the section entitled Legal Department. The introduction explained that “despite the civil rights victories of our past, racial prejudice still pervades the criminal justice system.” Visitors to the Web site were urged to join the NAACP in order to “protect the hard-earned civil rights gains of the past three decades.” No one visiting the Web site would learn that the mass incarceration of African Americans had already eviscerated many of the hard-earned gains it urged its members to protect.

Imagine if civil rights organizations and African American leaders in the 1940s had not placed Jim Crow segregation at the forefront of their racial justice agenda. It would have seemed absurd, given that racial segregation was the primary vehicle of racialized social control in the United States during that period. This book argues that mass incarceration is, metaphorically, the New Jim Crow and that all those who care about social justice should fully commit themselves to dismantling this new racial caste system. Mass incarceration—not attacks on affirmative action or lax civil rights enforcement—is the most damaging manifestation of the backlash against the Civil Rights Movement. The popular narrative that emphasizes the death of slavery and Jim Crow and celebrates the nation’s “triumph over race” with the election of Barack Obama, is dangerously misguided. 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.

Clearly, much has changed in my thinking about the criminal justice system since I passed that bright orange poster stapled to a telephone pole ten years ago. For me, the new caste system is now as obvious as my own face in the mirror. Like an optical illusion—one in which the embedded image is impossible to see until its outline is identified—the new caste system lurks invisibly within the maze of rationalizations we have developed for persistent racial inequality. It is possible—quite easy, in fact—never to see the embedded reality. Only after years of working on criminal justice reform did my own focus finally shift, and then the rigid caste system slowly came into view. Eventually it became obvious. Now it seems odd that I could not see it before.

Knowing as I do the difficulty of seeing what most everyone insists does not exist, I anticipate that this book will be met with skepticism or something worse. For some, the characterization of mass incarceration as a “racial caste system” may seem like a gross exaggeration, if not hyperbole. Yes, we may have “classes” in the United States—vaguely defined upper, middle, and lower classes—and we may even have an “underclass” (a group so estranged from mainstream society that it is no longer in reach of the mythical ladder of

opportunity), but we do not, many will insist, have anything in this country that resembles a “caste.”

The aim of this book is not to venture into the long-running, vigorous debate in the scholarly literature regarding what does and does not constitute a caste system. I use the term racial caste in this book the way it is used in common parlance to denote a stigmatized racial group locked into an inferior position by law and custom. Jim Crow and slavery were caste systems. So is our current system of mass incarceration.

It may be helpful, in attempting to understand the basic nature of the new caste system, to think of the criminal justice system—the entire collection of institutions and practices that comprise it—not as an independent system but rather as a gateway into a much larger system of racial stigmatization and permanent marginalization. This larger system, referred to here as mass incarceration, is a system that locks people not only behind actual bars in actual prisons, but also behind virtual bars and virtual walls—walls that are invisible to the naked eye but function nearly as effectively as Jim Crow laws once did at locking people of color into a permanent second-class citizenship. The term mass incarceration refers not only to the criminal justice system but also to the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison. Once released, former prisoners enter a hidden underworld of legalized discrimination and permanent social exclusion. They are members of America’s new undercaste.

The language of caste may well seem foreign or unfamiliar to some. Public discussions about racial caste in America are relatively rare. We avoid talking about caste in our society because we are ashamed of our racial history. We also avoid talking about race. We even avoid talking about class. Conversations about class are resisted in part because there is a tendency to imagine that one’s class reflects upon one’s character. What is key to America’s understanding of class is the persistent belief—despite all evidence to the contrary—that anyone, with the proper discipline and drive, can move from a lower class to a higher class. We recognize that mobility may be difficult, but the key to our collective self-image is the assumption that mobility is always possible, so failure to move up reflects on one’s character. By extension, the failure of a race or ethnic group to move up reflects very poorly on the group as a whole.

What is completely missed in the rare public debates today about the plight of African Americans is that a huge percentage of them are not free to move up at all. It is not just that they lack opportunity, attend poor schools, or are plagued by poverty. They are barred by law from doing so. And the major institutions with which they come into contact are designed to prevent their mobility. To put the matter starkly: The current system of control permanently locks a huge percentage of the African American community out of the mainstream society and economy. The system operates through our criminal justice institutions, but it functions more like a caste system than a system of crime control. Viewed from this perspective, the so-called underclass is better understood as an undercaste—a lower caste of individuals who are permanently barred by law and custom from mainstream society. Although this new system of racialized social control purports to be colorblind, it creates and maintains racial hierarchy much as earlier systems of control did. Like Jim Crow (and slavery), mass incarceration operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race.

This argument may be particularly hard to swallow given the election of Barack Obama. Many will wonder how a nation that just elected its first black president could possibly have a racial caste system. It’s a fair question. But as discussed in chapter 6, there is no inconsistency whatsoever between the election of Barack Obama to the highest office in the land and the existence of a racial caste system in the era of colorblindness. The current system of control depends on black exceptionalism; it is not disproved or undermined by it. Others may wonder how a racial caste system could exist when most Americans—of all colors—oppose race discrimination and endorse colorblindness. Yet as we shall see in the pages that follow, racial caste systems do not require racial hostility or overt bigotry to thrive. They need only racial

indifference, as Martin Luther King Jr. warned more than forty-five years ago.

The recent decisions by some state legislatures, most notably New York’s, to repeal or reduce mandatory drug sentencing laws have led some to believe that the system of racial control described in this book is already fading away. Such a conclusion, I believe, is a serious mistake. Many of the states that have reconsidered their harsh sentencing schemes have done so not out of concern for the lives and families that have been destroyed by these laws or the racial dimensions of the drug war, but out of concern for bursting state budgets in a time of economic recession. In other words, the racial ideology that gave rise to these laws remains largely undisturbed. Changing economic conditions or rising crime rates could easily result in a reversal of fortunes for those who commit drug crimes, particularly if the drug criminals are perceived to be black and brown. Equally important to understand is this: Merely reducing sentence length, by itself, does not disturb the basic architecture of the New Jim Crow. So long as large numbers of African Americans continue to be arrested and labeled drug criminals, they will continue to be relegated to a permanent second-class status upon their release, no matter how much (or how little) time they spend behind bars. The system of mass incarceration is based on the prison label, not prison time.

Skepticism about the claims made here is warranted. There are important differences, to be sure, among mass incarceration, Jim Crow, and slavery—the three major racialized systems of control adopted in the United States to date. Failure to acknowledge the relevant differences, as well as their implications, would be a disservice to racial justice discourse. Many of the differences are not as dramatic as they initially appear, however; others serve to illustrate the ways in which systems of racialized social control have managed to morph, evolve, and adapt to changes in the political, social, and legal context over time. Ultimately, I believe that the similarities between these systems of control overwhelm the differences and that mass incarceration, like its predecessors, has been largely immunized from legal challenge. If this claim is substantially correct, the implications for racial justice advocacy are profound.

With the benefit of hindsight, surely we can see that piecemeal policy reform or litigation alone would have been a futile approach to dismantling Jim Crow segregation. While those strategies certainly had their place, the Civil Rights Act of 1964 and the concomitant cultural shift would never have occurred without the cultivation of a critical political consciousness in the African American community and the widespread, strategic activism that flowed from it. Likewise, the notion that the New Jim Crow can ever be dismantled through traditional litigation and policy-reform strategies that are wholly disconnected from a major social movement seems fundamentally misguided.

Such a movement is impossible, though, if those most committed to abolishing racial hierarchy continue to talk and behave as if a state-sponsored racial caste system no longer exists. If we continue to tell ourselves the popular myths about racial progress or, worse yet, if we say to ourselves that the problem of mass incarceration is just too big, too daunting for us to do anything about and that we should instead direct our energies to battles that might be more easily won, history will judge us harshly. A human rights nightmare is occurring on our watch.

A new social consensus must be forged about race and the role of race in defining the basic structure of our society, if we hope ever to abolish the New Jim Crow. This new consensus must begin with dialogue, a conversation that fosters a critical consciousness, a key prerequisite to effective social action. This book is an attempt to ensure that the conversation does not end with nervous laughter.

It is not possible to write a relatively short book that explores all aspects of the phenomenon of mass incarceration and its implications for racial justice. No attempt has been made to do so here. This book paints with a broad brush, and as a result, many important issues have not received the attention they deserve. For example, 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. This book focuses on the experience of African American men in the new caste system. I hope other scholars and advocates will pick up where the book leaves off and develop the critique more fully or apply the themes sketched here to other groups and other contexts.

What this book is intended to do—the only thing it is intended to do—is to stimulate a much- needed conversation about the role of the criminal justice system in creating and perpetuating racial hierarchy in the United States. The fate of millions of people—indeed the future of the black community itself—may depend on the willingness of those who care about racial justice to re-examine their basic assumptions about the role of the criminal justice system in our society. The fact that more than half of the young black men in any large American city are currently under the control of the criminal justice system (or saddled with criminal records) is not—as many argue—just a symptom of poverty or poor choices, but rather evidence of a new racial caste system at work.

Chapter 1 begins our journey. It briefly reviews the history of racialized social control in the United States, answering the basic question: How did we get here? The chapter describes the control of African Americans through racial caste systems, such as slavery and Jim Crow, which appear to die but then are reborn in new form, tailored to the needs and constraints of the time. As we shall see, there is a certain pattern to the births and deaths of racial caste in America. Time and again, the most ardent proponents of racial hierarchy have succeeded in creating new caste systems by triggering a collapse of resistance across the political spectrum. This feat has been achieved largely by appealing to the racism and vulnerability of lower-class whites, a group of people who are understandably eager to ensure that they never find themselves trapped at the bottom of the American totem pole. This pattern, dating back to slavery, has birthed yet another racial caste system in the United States: mass incarceration.

The structure of mass incarceration is described in some detail in chapter 2, with a focus on the War on Drugs. Few legal rules meaningfully constrain the police in the drug war, and enormous financial incentives have been granted to law enforcement to engage in mass drug arrests through military-style tactics. Once swept into the system, one’s chances of ever being truly free are slim, often to the vanishing point. Defendants are typically denied meaningful legal representation, pressured by the threat of lengthy sentences into a plea bargain, and then placed under formal control—in prison or jail, on probation or parole. Upon release, ex- offenders are discriminated against, legally, for the rest of their lives, and most will eventually return to prison. They are members of America’s new undercaste.

Chapter 3 turns our attention to the role of race in the U.S. criminal justice system. It describes the method to the madness—how a formally race-neutral criminal justice system can manage to round up, arrest, and imprison an extraordinary number of black and brown men, when people of color are actually no more likely to be guilty of drug crimes and many other offenses than whites. This chapter debunks the notion that rates of black imprisonment can be explained by crime rates and identifies the huge racial disparities at every stage of the criminal justice process—from the initial stop, search, and arrest to the plea bargaining and sentencing phases. In short, the chapter explains how the legal rules that structure the system guarantee discriminatory results. These legal rules ensure that the undercaste is overwhelmingly black and brown.

Chapter 4 considers how the caste system operates once people are released from prison. In many respects, release from prison does not represent the beginning of freedom but instead a cruel new phase of stigmatization and control. Myriad laws, rules, and regulations discriminate against ex-offenders and effectively prevent their meaningful re-integration into the mainstream economy and society. I argue that the shame and stigma of the “prison label” is, in many respects, more damaging to the African American community than the shame and stigma associated with Jim Crow. The criminalization and demonization of black men has turned the black community against itself, unraveling community and family relationships, decimating networks of mutual support, and intensifying the shame and self-hate experienced by the current pariah caste.

The many parallels between mass incarceration and Jim Crow are explored in chapter 5. The most obvious parallel is legalized discrimination. Like Jim Crow, mass incarceration marginalizes large segments of the African American community, segregates them physically (in prisons, jails, and ghettos), and then authorizes discrimination against them in voting, employment, housing, education, public benefits, and jury service. The federal court system has effectively immunized the current system from challenges on the grounds of racial bias, much as earlier systems of control were protected and endorsed by the U.S. Supreme Court. The parallels do not end there, however. Mass incarceration, like Jim Crow, helps to define the meaning and significance of race in America. Indeed, the stigma of criminality functions in much the same way that the stigma of race once did. It justifies a legal, social, and economic boundary between “us” and “them.” Chapter 5 also explores some of the differences among slavery, Jim Crow, and mass incarceration, most significantly the fact that mass incarceration is designed to warehouse a population deemed disposable—unnecessary to the functioning of the new global economy—while earlier systems of control were designed to exploit and control black labor. In addition, the chapter discusses the experience of white people in this new caste system; although they have not been the primary targets of the drug war, they have been harmed by it —a powerful illustration of how a racial state can harm people of all colors. Finally, this chapter responds to skeptics who claim that mass incarceration cannot be understood as a racial caste system because many “get tough on crime” policies are supported by African Americans. Many of these claims, I note, are no more persuasive today than arguments made a hundred years ago by blacks and whites who claimed that racial segregation simply reflected “reality,” not racial animus, and that African Americans would be better off not challenging the Jim Crow system but should focus instead on improving themselves within it. Throughout our history, there have been African Americans who, for a variety of reasons, have defended or been complicit with the prevailing system of control.

Chapter 6 reflects on what acknowledging the presence of the New Jim Crow means for the future of civil rights advocacy. I argue that nothing short of a major social movement can successfully dismantle the new caste system. Meaningful reforms can be achieved without such a movement, but unless the public consensus supporting the current system is completely overturned, the basic structure of the new caste system will remain intact. Building a broad- based social movement, however, is not enough. It is not nearly enough to persuade mainstream voters that we have relied too heavily on incarceration or that drug abuse is a public health problem, not a crime. If the movement that emerges to challenge mass incarceration fails to confront squarely the critical role of race in the basic structure of our society, and if it fails to cultivate an ethic of genuine care, compassion, and concern for every human being—of every class, race, and nationality—within our nation’s borders (including poor whites, who are often pitted against poor people of color), the collapse of mass incarceration will not mean the death of racial caste in America. Inevitably a new system of racialized social control will emerge—one that we cannot foresee, just as the current system of mass incarceration was not predicted by anyone thirty years ago. No task is more urgent for racial justice advocates today than ensuring that America’s current racial caste system is its last.

1

The Rebirth of Caste

[T]he slave went free; stood a brief moment in the sun; then moved back again toward slavery.

—W.E.B Du Bois, Black Reconstruction in America

For more than one hundred years, scholars have written about the illusory nature of the Emancipation Proclamation. President Abraham Lincoln issued a declaration purporting to free slaves held in Southern Confederate states, but not a single black slave was actually free to walk away from a master in those states as a result. A civil war had to be won first, hundreds of thousands of lives lost, and then—only then—were slaves across the South set free. Even that freedom proved illusory, though. As W.E.B. Du Bois eloquently reminds us, former slaves had “a brief moment in the sun” before they were returned to a status akin to slavery. Constitutional amendments guaranteeing African Americans “equal protection of the laws” and the right to vote proved as impotent as the Emancipation Proclamation once a white backlash against Reconstruction gained steam. Black people found themselves yet again powerless and relegated to convict leasing camps that were, in many ways, worse than slavery. Sunshine gave way to darkness, and the Jim Crow system of segregation emerged—a system that put black people nearly back where they began, in a subordinate racial caste.

Few find it surprising that Jim Crow arose following the collapse of slavery. The development is described in history books as regrettable but predictable, given the virulent racism that gripped the South and the political dynamics of the time. What is remarkable is that hardly anyone seems to imagine that similar political dynamics may have produced another caste system in the years following the collapse of Jim Crow—one that exists today. The story that is told during Black History Month is one of triumph; the system of racial caste is officially dead and buried. Suggestions to the contrary are frequently met with shocked disbelief. The standard reply is: “How can you say that a racial caste system exists today? Just look at Barack Obama! Just look at Oprah Winfrey!”

The fact that some African Americans have experienced great success in recent years does not mean that something akin to a racial caste system no longer exists. No caste system in the United States has ever governed all black people; there have always been “free blacks” and black success stories, even during slavery and Jim Crow. The superlative nature of individual black achievement today in formerly white domains is a good indicator that Jim Crow is dead, but it does not necessarily mean the end of racial caste. If history is any guide, it may have simply taken a different form.

Any candid observer of American racial history must acknowledge that racism is highly adaptable. The rules and reasons the political system employs to enforce status relations of any kind, including racial hierarchy, evolve and change as they are challenged. The valiant efforts to abolish slavery and Jim Crow and to achieve greater racial equality have brought about significant changes in the legal framework of American society—new “rules of the game,” so to speak. These new rules have been justified by new rhetoric, new language, and a new social consensus, while producing many of the same results. This dynamic, which legal scholar Reva Siegel has dubbed “preservation through transformation,” is the process through which white privilege is maintained, though the rules and rhetoric change.1

This process, though difficult to recognize at any given moment, is easier to see in retrospect. Since the nation’s founding, African Americans repeatedly have been controlled through institutions such as slavery and Jim Crow, which appear to die, but then are reborn in new form, tailored to the needs and constraints of the time. As described in the pages that follow, there is a certain pattern to this cycle. Following the collapse of each system of control, there has been a period of confusion—transition—in which those who are most committed to racial hierarchy search for new means to achieve their goals within the rules of the game as currently defined. It is during this period of uncertainty that the backlash intensifies and a new form of racialized social control begins to take hold. The adoption of the new system of control is never inevitable, but to date it has never been avoided. The most ardent proponents of racial hierarchy have consistently succeeded in implementing new racial caste systems by triggering a collapse of resistance across the political spectrum. This feat has been achieved largely by appealing to the racism and vulnerability of lower-class whites, a group of people who are

understandably eager to ensure that they never find themselves trapped at the bottom of the American hierarchy.

The emergence of each new system of control may seem sudden, but history shows that the seeds are planted long before each new institution begins to grow. For example, although it is common to think of the Jim Crow regime following immediately on the heels of Reconstruction, the truth is more complicated. And while it is generally believed that the backlash against the Civil Rights Movement is defined primarily by the rollback of affirmative action and the undermining of federal civil rights legislation by a hostile judiciary, the seeds of the new system of control—mass incarceration—were planted during the Civil Rights Movement itself, when it became clear that the old caste system was crumbling and a new one would have to take its place.

With each reincarnation of racial caste, the new system, as sociologist Loïc Wacquant puts it, “is less total, less capable of encompassing and controlling the entire race.”2 However, any notion that this evolution reflects some kind of linear progress would be misguided, for it is not at all obvious that it would be better to be incarcerated for life for a minor drug offense than to live with one’s family, earning an honest living under the Jim Crow regime—notwithstanding the ever-present threat of the Klan. Moreover, as the systems of control have evolved, they have become perfected, arguably more resilient to challenge, and thus capable of enduring for generations to come. The story of the political and economic underpinnings of the nation’s founding sheds some light on these recurring themes in our history and the reasons new racial caste systems continue to be born.

The Birth of Slavery

Back there, before Jim Crow, before the invention of the Negro or the white man or the words and concepts to describe them, the Colonial population consisted largely of a great mass of white and black bondsmen, who occupied roughly the same economic category and were treated with equal contempt by the lords of the plantations and legislatures. Curiously unconcerned about their color, these people worked together and relaxed together.3

—Lerone Bennett Jr.

The concept of race is a relatively recent development. Only in the past few centuries, owing largely to European imperialism, have the world’s people been classified along racial lines.4

Here, in America, the idea of race emerged as a means of reconciling chattel slavery—as well as the extermination of American Indians—with the ideals of freedom preached by whites in the new colonies.

In the early colonial period, when settlements remained relatively small, indentured servitude was the dominant means of securing cheap labor. Under this system, whites and blacks struggled to survive against a common enemy, what historian Lerone Bennett Jr. describes as “the big planter apparatus and a social system that legalized terror against black and white bondsmen.” 5 Initially, blacks brought to this country were not all enslaved; many were treated as indentured servants. As plantation farming expanded, particularly tobacco and cotton farming, demand increased greatly for both labor and land.

The demand for land was met by invading and conquering larger and larger swaths of

territory. American Indians became a growing impediment to white European “progress,” and during this period, the images of American Indians promoted in books, newspapers, and magazines became increasingly negative. As sociologists Keith Kilty and Eric Swank have observed, eliminating “savages” is less of a moral problem than eliminating human beings, and therefore American Indians came to be understood as a lesser race—uncivilized savages—thus providing a justification for the extermination of the native peoples.6

The growing demand for labor on plantations was met through slavery. American Indians were considered unsuitable as slaves, largely because native tribes were clearly in a position to fight back. The fear of raids by Indian tribes led plantation owners to grasp for an alternative source of free labor. European immigrants were also deemed poor candidates for slavery, not because of their race, but rather because they were in short supply and enslavement would, quite naturally, interfere with voluntary immigration to the new colonies. Plantation owners thus viewed Africans, who were relatively powerless, as the ideal slaves. The systematic enslavement of Africans, and the rearing of their children under bondage, emerged with all deliberate speed —quickened by events such as Bacon’s Rebellion.

Nathaniel Bacon was a white property owner in Jamestown, Virginia, who managed to unite slaves, indentured servants, and poor whites in a revolutionary effort to overthrow the planter elite. Although slaves clearly occupied the lowest position in the social hierarchy and suffered the most under the plantation system, the condition of indentured whites was barely better, and the majority of free whites lived in extreme poverty. As explained by historian Edmund Morgan, in colonies like Virginia, the planter elite, with huge land grants, occupied a vastly superior position to workers of all colors.7 Southern colonies did not hesitate to invent ways to extend the terms of servitude, and the planter class accumulated uncultivated lands to restrict the options of free workers. The simmering resentment against the planter class created conditions that were ripe for revolt.

Varying accounts of Bacon’s rebellion abound, but the basic facts are these: Bacon developed plans in 1675 to seize Native American lands in order to acquire more property for himself and others and nullify the threat of Indian raids. When the planter elite in Virginia refused to provide militia support for his scheme, Bacon retaliated, leading an attack on the elite, their homes, and their property. He openly condemned the rich for their oppression of the poor and inspired an alliance of white and black bond laborers, as well as slaves, who demanded an end to their servitude. The attempted revolution was ended by force and false promises of amnesty. A number of the people who participated in the revolt were hanged. The events in Jamestown were alarming to the planter elite, who were deeply fearful of the multiracial alliance of bond workers and slaves. Word of Bacon’s rebellion spread far and wide, and several more uprisings of a similar type followed.

In an effort to protect their superior status and economic position, the planters shifted their strategy for maintaining dominance. They abandoned their heavy reliance on indentured servants in favor of the importation of more black slaves. Instead of importing English-speaking slaves from the West Indies, who were more likely to be familiar with European language and culture, many more slaves were shipped directly from Africa. These slaves would be far easier to control and far less likely to form alliances with poor whites.

Fearful that such measures might not be sufficient to protect their interests, the planter class took an additional precautionary step, a step that would later come to be known as a “racial bribe.” Deliberately and strategically, the planter class extended special privileges to poor whites in an effort to drive a wedge between them and black slaves. White settlers were allowed greater access to Native American lands, white servants were allowed to police slaves through slave patrols and militias, and barriers were created so that free labor would not be placed in competition with slave labor. These measures effectively eliminated the risk of future alliances between black slaves and poor whites. Poor whites suddenly had a direct, personal stake in the existence of a race-based system of slavery. Their own plight had not improved by much, but at least they were not slaves. Once the planter elite split the labor force, poor whites responded

to the logic of their situation and sought ways to expand their racially privileged position.8

By the mid-1770s, the system of bond labor had been thoroughly transformed into a racial caste system predicated on slavery. The degraded status of Africans was justified on the ground that Negros, like the Indians, were an uncivilized lesser race, perhaps even more lacking in intelligence and laudable human qualities than the red-skinned natives. The notion of white supremacy rationalized the enslavement of Africans, even as whites endeavored to form a new nation based on the ideals of equality, liberty, and justice for all. Before democracy, chattel slavery in America was born.

It may be impossible to overstate the significance of race in defining the basic structure of American society. The structure and content of the original Constitution was based largely on the effort to preserve a racial caste system—slavery—while at the same time affording political and economic rights to whites, especially propertied whites. The southern slaveholding colonies would agree to form a union only on the condition that the federal government would not be able to interfere with the right to own slaves. Northern white elites were sympathetic to the demand for their “property rights” to be respected, as they, too, wanted the Constitution to protect their property interests. As James Madison put it, the nation ought to be constituted “to protect the minority of the opulent against the majority.”9 Consequently, the Constitution was designed so the federal government would be weak, not only in its relationship to private property, but also in relationship to the rights of states to conduct their own affairs. The language of the Constitution itself was deliberately colorblind (the words slave or Negro were never used), but the document was built upon a compromise regarding the prevailing racial caste system. Federalism—the division of power between the states and the federal government —was the device employed to protect the institution of slavery and the political power of slaveholding states. Even the method for determining proportional representation in Congress and identifying the winner of a presidential election (the electoral college) were specifically developed with the interest of slaveholders in mind. Under the terms of our country’s founding document, slaves were defined as three-fifths of a man, not a real, whole human being. Upon this racist fiction rests the entire structure of American democracy.

The Death of Slavery

The history of racial caste in the United States would end with the Civil War if the idea of race and racial difference had died when the institution of slavery was put to rest. But during the four centuries in which slavery flourished, the idea of race flourished as well. Indeed, the notion of racial difference—specifically the notion of white supremacy—proved far more durable than the institution that gave birth to it.

White supremacy, over time, became a religion of sorts. Faith in the idea that people of the African race were bestial, that whites were inherently superior, and that slavery was, in fact, for blacks’ own good, served to alleviate the white conscience and reconcile the tension between slavery and the democratic ideals espoused by whites in the so-called New World. There was no contradiction in the bold claim made by Thomas Jefferson in the Declaration of Independence that “all men are created equal” if Africans were not really people. Racism operated as a deeply held belief system based on “truths” beyond question or doubt. This deep faith in white supremacy not only justified an economic and political system in which plantation owners acquired land and great wealth through the brutality, torture, and coercion of other human beings; it also endured, like most articles of faith, long after the historical circumstances that gave rise to the religion passed away. In Wacquant’s words: “Racial division was a consequence, not a precondition of slavery, but once it was instituted it became detached from

10its initial function and acquired a social potency all its own.” After the death of slavery, the

idea of race lived on.

One of the most compelling accounts of the postemancipation period is The Strange Career of Jim Crow, written by C. Vann Woodward in 1955.11 The book continues to be the focal point of study and debate by scholars and was once described by Martin Luther King Jr. as the “historical bible of the Civil Rights Movement.” As Woodward tells the story, the end of slavery created an extraordinary dilemma for Southern white society. Without the labor of former slaves, the region’s economy would surely collapse, and without the institution of slavery, there was no longer a formal mechanism for maintaining racial hierarchy and preventing “amalgamation” with a group of people considered intrinsically inferior and vile. This state of affairs produced a temporary anarchy and a state of mind bordering on hysteria, particularly among the planter elite. But even among poor whites, the collapse of slavery was a bitter pill. In the antebellum South, the lowliest white person at least possessed his or her white skin—a badge of superiority over even the most skilled slave or prosperous free African American.

While Southern whites—poor and rich alike—were utterly outraged by emancipation, there was no obvious solution to the dilemma they faced. Following the Civil War, the economic and political infrastructure of the South was in shambles. Plantation owners were suddenly destitute, and state governments, shackled by war debt, were penniless. Large amounts of real estate and other property had been destroyed in the war, industry was disorganized, and hundreds of thousands of men had been killed or maimed. With all of this went the demoralizing effect of an unsuccessful war and the extraordinary challenges associated with rebuilding new state and local governments. Add to all this the sudden presence of 4 million newly freed slaves, and the picture becomes even more complicated. Southern whites, Woodward explains, strongly believed that a new system of racial control was clearly required, but it was not immediately obvious what form it should take.

Under slavery, the racial order was most effectively maintained by a large degree of contact between slave owners and slaves, thus maximizing opportunities for supervision and discipline, and minimizing the potential for active resistance or rebellion. Strict separation of the races would have threatened slaveholders’ immediate interests and was, in any event, wholly unnecessary as a means of creating social distance or establishing the inferior status of slaves.

Following the Civil War, it was unclear what institutions, laws, or customs would be necessary to maintain white control now that slavery was gone. Nonetheless, as numerous historians have shown, the development of a new racial order became the consuming passion for most white Southerners. Rumors of a great insurrection terrified whites, and blacks increasingly came to be viewed as menacing and dangerous. In fact, the current stereotypes of black men as aggressive, unruly predators can be traced to this period, when whites feared that an angry mass of black men might rise up and attack them or rape their women.

Equally worrisome was the state of the economy. Former slaves literally walked away from their plantations, causing panic and outrage among plantation owners. Large numbers of former slaves roamed the highways in the early years after the war. Some converged on towns and cities; others joined the federal militia. Most white people believed African Americans lacked the proper motivation to work, prompting the provisional Southern legislatures to adopt the notorious black codes. As expressed by one Alabama planter: “We have the power to pass stringent police laws to govern the Negroes—this is a blessing—for they must be controlled in some way or white people cannot live among them.”12 While some of these codes were intended to establish systems of peonage resembling slavery, others foreshadowed Jim Crow laws by prohibiting, among other things, interracial seating in the first-class sections of railroad cars and by segregating schools.

Although the convict laws enacted during this period are rarely seen as part of the black codes, that is a mistake. As explained by historian William Cohen, “the main purpose of the codes was to control the freedmen, and the question of how to handle convicted black law

13breakers was very much at the center of the control issue.” Nine southern states adopted

vagrancy laws—which essentially made it a criminal offense not to work and were applied selectively to blacks—and eight of those states enacted convict laws allowing for the hiring-out of county prisoners to plantation owners and private companies. Prisoners were forced to work for little or no pay. One vagrancy act specifically provided that “all free negroes and mulattoes over the age of eighteen” must have written proof of a job at the beginning of every year. Those found with no lawful employment were deemed vagrants and convicted. Clearly, the purpose of the black codes in general and the vagrancy laws in particular was to establish another system of forced labor. In W.E.B. Du Bois’s words: “The Codes spoke for themselves…. No open-minded student can read them without being convinced they meant nothing more nor less than slavery in daily toil.”14

Ultimately, the black codes were overturned, and a slew of federal civil rights legislation protecting the newly freed slaves was passed during the relatively brief but extraordinary period of black advancement known as the Reconstruction Era. The impressive legislative achievements of this period include the Thirteenth Amendment, abolishing slavery; the Civil Rights Act of 1866, bestowing full citizenship upon African Americans; the Fourteenth Amendment, prohibiting states from denying citizens due process and “equal protection of the laws”; the Fifteenth Amendment, providing that the right to vote should not be denied on account of race; and the Ku Klux Klan Acts, which, among other things, declared interference with voting a federal offense and the violent infringement of civil rights a crime. The new legislation also provided for federal supervision of voting and authorized the president to send the army and suspend the writ of habeas corpus in districts declared to be in a state of insurrection against the federal government.

In addition to federal civil rights legislation, the Reconstruction Era brought the expansion of the Freedmen’s Bureau, the agency charged with the responsibility of providing food, clothing, fuel, and other forms of assistance to destitute former slaves. A public education system emerged in the South, which afforded many blacks (and poor whites) their first opportunity to learn to read and write.

While the Reconstruction Era was fraught with corruption and arguably doomed by the lack of land reform, the sweeping economic and political developments in that period did appear, at least for a time, to have the potential to seriously undermine, if not completely eradicate, the racial caste system in the South. With the protection of federal troops, African Americans began to vote in large numbers and seize control, in some areas, of the local political apparatus. Literacy rates climbed, and educated blacks began to populate legislatures, open schools, and initiate successful businesses. In 1867, at the dawn of the Reconstruction Era, no black man held political office in the South, yet three years later, at least 15 percent of all Southern elected officials were black. This is particularly extraordinary in light of the fact that fifteen years after the passage of the Voting Rights Act of 1965—the high water mark of the Civil Rights Movement—fewer than 8 percent of all Southern elected officials were black.15

At the same time, however, many of the new civil rights laws were proving largely symbolic.16 Notably absent from the Fifteenth Amendment, for example, was language prohibiting the states from imposing educational, residential, or other qualifications for voting, thus leaving the door open to the states to impose poll taxes, literacy tests, and other devices to prevent blacks from voting. Other laws revealed themselves as more an assertion of principle than direct federal intervention into Southern affairs, because enforcement required African Americans to take their cases to federal courts, a costly and time-consuming procedure that was a practical impossibility for the vast majority of those who had claims. Most blacks were too poor to sue to enforce their civil rights, and no organization like the NAACP yet existed to spread the risks and costs of litigation. Moreover, the threat of violence often deterred blacks from pressing legitimate claims, making the “civil rights” of former slaves largely illusory— existing on paper but rarely to be found in real life.

Meanwhile, the separation of the races had begun to emerge as a comprehensive pattern

throughout the South, driven in large part by the rhetoric of the planter elite, who hoped to re- establish a system of control that would ensure a low-paid, submissive labor force. Racial segregation had actually begun years earlier in the North, as an effort to prevent race-mixing and preserve racial hierarchy following the abolition of Northern slavery. It had never developed, however, into a comprehensive system—operating instead largely as a matter of custom, enforced with varying degrees of consistency. Even among those most hostile to Reconstruction, few would have predicted that racial segregation would soon evolve into a new racial caste system as stunningly comprehensive and repressive as the one that came to be known simply as Jim Crow.

The Birth of Jim Crow

The backlash against the gains of African Americans in the Reconstruction Era was swift and severe. As African Americans obtained political power and began the long march toward greater social and economic equality, whites reacted with panic and outrage. Southern conservatives vowed to reverse Reconstruction and sought the “abolition of the Freedmen’s Bureau and all political instrumentalities designed to secure Negro supremacy.”17 Their campaign to “redeem” the South was reinforced by a resurgent Ku Klux Klan, which fought a terrorist campaign against Reconstruction governments and local leaders, complete with bombings, lynchings, and mob violence.

The terrorist campaign proved highly successful. “Redemption” resulted in the withdrawal of federal troops from the South and the effective abandonment of African Americans and all those who had fought for or supported an egalitarian racial order. The federal government no longer made any effort to enforce federal civil rights legislation, and funding for the Freedmen’s Bureau was slashed to such a degree that the agency became virtually defunct.

Once again, vagrancy laws and other laws defining activities such as “mischief” and “insulting gestures” as crimes were enforced vigorously against blacks. The aggressive enforcement of these criminal offenses opened up an enormous market for convict leasing, in which prisoners were contracted out as laborers to the highest private bidder. Douglas Blackmon, in Slavery by Another Name, describes how tens of thousands of African Americans were arbitrarily arrested during this period, many of them hit with court costs and fines, which had to be worked off in order to secure their release.18 With no means to pay off their “debts,” prisoners were sold as forced laborers to lumber camps, brickyards, railroads, farms, plantations, and dozens of corporations throughout the South. Death rates were shockingly high, for the private contractors had no interest in the health and well-being of their laborers, unlike the earlier slave-owners who needed their slaves, at a minimum, to be healthy enough to survive hard labor. Laborers were subject to almost continual lashing by long horse whips, and those who collapsed due to injuries or exhaustion were often left to die.

Convicts had no meaningful legal rights at this time and no effective redress. They were understood, quite literally, to be slaves of the state. The Thirteenth Amendment to the U.S. Constitution had abolished slavery but allowed one major exception: slavery remained appropriate as punishment for a crime. In a landmark decision by the Virginia Supreme Court, Ruffin v. Commonwealth, issued at the height of Southern Redemption, the court put to rest any notion that convicts were legally distinguishable from slaves:

For a time, during his service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the State. He is civiliter mortus; and his estate, if he has any, is

administered like that of a dead man.19

The state of Mississippi eventually moved from hiring convict labor to organizing its own convict labor camp, known as Parchman Farm. It was not alone. During the decade following Redemption, the convict population grew ten times faster than the general population: “Prisoners became younger and blacker, and the length of their sentences soared.”20 It was the nation’s first prison boom and, as they are today, the prisoners were disproportionately black. After a brief period of progress during Reconstruction, African Americans found themselves, once again, virtually defenseless. The criminal justice system was strategically employed to force African Americans back into a system of extreme repression and control, a tactic that would continue to prove successful for generations to come. Even as convict leasing faded away, strategic forms of exploitation and repression emerged anew. As Blackmon notes: “The apparent demise . . . of leasing prisoners seemed a harbinger of a new day. But the harsher reality of the South was that the new post-Civil War neoslavery was evolving—not disappearing.”21

Redemption marked a turning point in the quest by dominant whites for a new racial equilibrium, a racial order that would protect their economic, political, and social interests in a world without slavery. Yet a clear consensus among whites about what the new racial order should be was still lacking. The Redeemers who overthrew Reconstruction were inclined to retain such segregation practices as had already emerged, but they displayed no apparent disposition to expand or universalize the system.

Three alternative philosophies of race relations were put forward to compete for the region’s support, all of which rejected the doctrines of extreme racism espoused by some Redeemers: liberalism, conservatism, and radicalism. 22 The liberal philosophy of race relations emphasized the stigma of segregation and the hypocrisy of a government that celebrates freedom and equality yet denies both on account of race. This philosophy, born in the North, never gained much traction among Southern whites or blacks.

The conservative philosophy, by contrast, attracted wide support and was implemented in various contexts over a considerable period of time. Conservatives blamed liberals for pushing blacks ahead of their proper station in life and placing blacks in positions they were unprepared to fill, a circumstance that had allegedly contributed to their downfall. They warned blacks that some Redeemers were not satisfied with having decimated Reconstruction, and were prepared to wage an aggressive war against blacks throughout the South. With some success, the conservatives reached out to African American voters, reminding them that they had something to lose as well as gain and that the liberals’ preoccupation with political and economic equality presented the danger of losing all that blacks had so far gained.

The radical philosophy offered, for many African Americans, the most promise. It was predicated on a searing critique of large corporations, particularly railroads, and the wealthy elite in the North and South. The radicals of the late nineteenth century, who later formed the Populist Party, viewed the privileged classes as conspiring to keep poor whites and blacks locked into a subordinate political and economic position. For many African American voters, the Populist approach was preferable to the paternalism of liberals. Populists preached an “equalitarianism of want and poverty, the kinship of a common grievance, and a common oppressor.”23 As described by Tom Watson, a prominent Populist leader, in a speech advocating a union between black and white farmers: “You are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone of the arch of financial despotism that enslaves you both. You are deceived and blinded that you may not see how this race antagonism perpetuates a monetary system which beggars both.”24

In an effort to demonstrate their commitment to a genuinely multiracial, working-class

movement against white elites, the Populists made strides toward racial integration, a symbol of their commitment to class-based unity. African Americans throughout the South responded with great hope and enthusiasm, eager to be true partners in a struggle for social justice. According to Woodward, “It is altogether probable that during the brief Populist upheaval in the nineties Negroes and native whites achieved a greater comity of mind and harmony of political purpose than ever before or since in the South.”25

The challenges inherent in creating the alliance sought by the Populists were formidable, as race prejudice ran the highest among the very white populations to which the Populist appeal was specifically addressed—the depressed lower economic classes. Nevertheless, the Populist movement initially enjoyed remarkable success in the South, fueled by a wave of discontent aroused by the severe agrarian depression of the 1880s and 1890s. The Populists took direct aim at the conservatives, who were known as comprising a party of privilege, and they achieved a stunning series of political victories throughout the region. Alarmed by the success of the Populists and the apparent potency of the alliance between poor and working-class whites and African Americans, the conservatives raised the cry of white supremacy and resorted to the tactics they had employed in their quest for Redemption, including fraud, intimidation, bribery, and terror.

Segregation laws were proposed as part of a deliberate effort to drive a wedge between poor whites and African Americans. These discriminatory barriers were designed to encourage lower- class whites to retain a sense of superiority over blacks, making it far less likely that they would sustain interracial political alliances aimed at toppling the white elite. The laws were, in effect, another racial bribe. As William Julius Wilson has noted, “As long as poor whites directed their hatred and frustration against the black competitor, the planters were relieved of class hostility directed against them.”26 Indeed, in order to overcome the well-founded suspicions of poor and illiterate whites that they, as well as blacks, were in danger of losing the right to vote, the leaders of the movement pursued an aggressive campaign of white supremacy in every state prior to black disenfranchisement.

Ultimately, the Populists caved to the pressure and abandoned their former allies. “While the [Populist] movement was at the peak of zeal,” Woodward observed, “the two races had surprised each other and astonished their opponents by the harmony they achieved and the good will with which they co-operated.”27 But when it became clear that the conservatives would stop at nothing to decimate their alliance, the biracial partnership dissolved, and Populist leaders re-aligned themselves with conservatives. Even Tom Watson, who had been among the most forceful advocates for an interracial alliance of farmers, concluded that Populist principles could never be fully embraced by the South until blacks were eliminated from politics.

The agricultural depression, taken together with a series of failed reforms and broken political promises, had pyramided to a climax of social tensions. Dominant whites concluded that it was in their political and economic interest to scapegoat blacks, and “permission to hate” came from sources that had formerly denied it, including Northern liberals eager to reconcile with the South, Southern conservatives who had once promised blacks protection from racial extremism, and Populists, who cast aside their dark-skinned allies when the partnership fell under siege.28

History seemed to repeat itself. Just as the white elite had successfully driven a wedge between poor whites and blacks following Bacon’s Rebellion by creating the institution of black slavery, another racial caste system was emerging nearly two centuries later, in part due to efforts by white elites to decimate a multiracial alliance of poor people. By the turn of the twentieth century, every state in the South had laws on the books that disenfranchised blacks and discriminated against them in virtually every sphere of life, lending sanction to a racial ostracism that extended to schools, churches, housing, jobs, restrooms, hotels, restaurants, hospitals, orphanages, prisons, funeral homes, morgues, and cemeteries. Politicians competed with each other by proposing and passing ever more stringent, oppressive, and downright ridiculous legislation (such as laws specifically prohibiting blacks and whites from playing chess together). The public symbols and constant reminders of black subjugation were supported by

whites across the political spectrum, though the plight of poor whites remained largely unchanged. For them, the racial bribe was primarily psychological.

The new racial order, known as Jim Crow—a term apparently derived from a minstrel show character—was regarded as the “final settlement,” the “return to sanity,” and “the permanent system.”29 Of course, the earlier system of racialized social control—slavery—had also been regarded as final, sane, and permanent by its supporters. Like the earlier system, Jim Crow seemed “natural,” and it became difficult to remember that alternative paths were not only available at one time, but nearly embraced.

The Death of Jim Crow

Scholars have long debated the beginning and end of Reconstruction, as well as exactly when Jim Crow ended and the Civil Rights Movement or “Second Reconstruction” began. Reconstruction is most typically described as stretching from 1863 when the North freed the slaves to 1877, when it abandoned them and withdrew federal troops from the South. There is much less certainty regarding the beginning of the end of Jim Crow.

The general public typically traces the death of Jim Crow to Brown v. Board of Education, although the institution was showing signs of weakness years before. By 1945, a growing number of whites in the North had concluded that the Jim Crow system would have to be modified, if not entirely overthrown. This consensus was due to a number of factors, including the increased political power of blacks due to migration to the North and the growing membership and influence of the NAACP, particularly its highly successful legal campaign challenging Jim Crow laws in federal courts. Far more important in the view of many scholars, however, is the influence of World War II. The blatant contradiction between the country’s opposition to the crimes of the Third Reich against European Jews and the continued existence of a racial caste system in the United States was proving embarrassing, severely damaging the nation’s credibility as leader of the “free world.” There was also increased concern that, without greater equality for African Americans, blacks would become susceptible to communist influence, given Russia’s commitment to both racial and economic equality. In Gunnar Myrdal’s highly influential book The American Dilemma, published in 1944, Myrdal made a passionate plea for integration based on the theory that the inherent contradiction between the “American Creed” of freedom and equality and the treatment of African Americans was not only immoral and profoundly unjust, but was also against the economic and foreign-policy interests of the United States.30

The Supreme Court seemed to agree. In 1944, in Smith v. Allwright, the Supreme Court ended the use of the all-white primary election; and in 1946, the Court ruled that state laws requiring segregation on interstate buses were unconstitutional. Two years later, the Court voided any real estate agreements that racially discriminated against purchasers, and in 1949 the Court ruled that Texas’s segregated law school for blacks was inherently unequal and inferior in every respect to its law school for whites. In 1950, in McLaurin v. Oklahoma, it declared that Oklahoma had to desegregate its law school. Thus, even before Brown, the Supreme Court had already begun to set in motion a striking pattern of desegregation.

Brown v. Board of Education was unique, however. It signaled the end of “home rule” in the South with respect to racial affairs. Earlier decisions had chipped away at the “separate but equal” doctrine, yet Jim Crow had managed to adapt to the changing legal environment, and most Southerners had remained confident that the institution would survive. Brown threatened not only to abolish segregation in public schools, but also, by implication, the entire system of legalized discrimination in the South. After more than fifty years of nearly complete deference to

Southern states and noninterference in their racial affairs, Brown suggested a reversal in course.

A mood of outrage and defiance swept the South, not unlike the reaction to emancipation and Reconstruction following the Civil War. Again, racial equality was being forced upon the South by the federal government, and by 1956 Southern white opposition to desegregation mushroomed into a vicious backlash. In Congress, North Carolina Senator Sam Erwin Jr. drafted a racist polemic, “the Southern Manifesto,” which vowed to fight to maintain Jim Crow by all legal means. Erwin succeeded in obtaining the support of 101 out of 128 members of Congress from the eleven original Confederate states.

A fresh wave of white terror was hurled at those who supported the dismantling of Jim Crow. White Citizens’ Councils were formed in almost every Southern city and backwater town, comprised primarily of middle- to upper-middle-class whites in business and the clergy. Just as Southern legislatures had passed the black codes in response to the early steps of Reconstruction, in the years immediately following Brown v. Board, five Southern legislatures passed nearly fifty new Jim Crow laws. In the streets, resistance turned violent. The Ku Klux Klan reasserted itself as a powerful terrorist organization, committing castrations, killings, and the bombing of black homes and churches. NAACP leaders were beaten, pistol-whipped, and shot. As quickly as it began, desegregation across the South ground to a halt. In 1958, thirteen school systems were desegregated; in 1960, only seventeen.31

In the absence of a massive, grassroots movement directly challenging the racial caste system, Jim Crow might be alive and well today. Yet in the 1950s, a civil rights movement was brewing, emboldened by the Supreme Court’s decisions and a shifting domestic and international political environment. With extraordinary bravery, civil rights leaders, activists, and progressive clergy launched boycotts, marches, and sit-ins protesting the Jim Crow system. They endured fire hoses, police dogs, bombings, and beatings by white mobs, as well as by the police. Once again, federal troops were sent to the South to provide protection for blacks attempting to exercise their civil rights, and the violent reaction of white racists was met with horror in the North.

The dramatic high point of the Civil Rights Movement occurred in 1963. The Southern struggle had grown from a modest group of black students demonstrating peacefully at one lunch counter to the largest mass movement for racial reform and civil rights in the twentieth century. Between autumn 1961 and the spring of 1963, twenty thousand men, women, and children had been arrested. In 1963 alone, another fifteen thousand were imprisoned, and one thousand desegregation protests occurred across the region, in more than one hundred cities.32

On June 12, 1963, President Kennedy announced that he would deliver to Congress a strong civil rights bill, a declaration that transformed him into a widely recognized ally of the Civil Rights Movement. Following Kennedy’s assassination, President Johnson professed his commitment to the goal of “the full assimilation of more than twenty million Negroes into American life,” and ensured the passage of comprehensive civil rights legislation. The Civil Rights Act of 1964 formally dismantled the Jim Crow system of discrimination in public accommodations, employment, voting, education, and federally financed activities. The Voting Rights Act of 1965 arguably had even greater scope, as it rendered illegal numerous discriminatory barriers to effective political participation by African Americans and mandated federal review of all new voting regulations so that it would be possible to determine whether their use would perpetuate voting discrimination.

Within five years, the effects of the civil rights revolution were undeniable. Between 1964 and 1969, the percentage of African American adults registered to vote in the South soared. In Alabama the rate leaped from 19.3 percent to 61.3 percent; in Georgia, 27.4 percent to 60.4 percent; in Louisiana, 31.6 percent to 60.8 percent; and in Mississippi, 6.7 percent to 66.5 percent.33 Suddenly black children could shop in department stores, eat at restaurants, drink from water fountains, and go to amusement parks that were once off-limits. Miscegenation laws were declared unconstitutional, and the rate of interracial marriage climbed.

While dramatic progress was apparent in the political and social realms, civil rights activists became increasingly concerned that, without major economic reforms, the vast majority of blacks would remain locked in poverty. Thus at the peak of the Civil Rights Movement, activists and others began to turn their attention to economic problems, arguing that socioeconomic inequality interacted with racism to produce crippling poverty and related social problems. Economic issues emerged as a major focus of discontent. As political scientists Frances Fox Piven and Richard Cloward have described, “blacks became more indignant over their condition —not only as an oppressed racial minority in a white society but as poor people in an affluent one.”34 Activists organized boycotts, picket lines, and demonstrations to attack discrimination in access to jobs and the denial of economic opportunity.

Perhaps the most famous demonstration in support of economic justice is the March on Washington for Jobs and Economic Freedom in August 1963. The wave of activism associated with economic justice helped to focus President Kennedy’s attention on poverty and black unemployment. In the summer of 1963, he initiated a series of staff studies on those subjects. By the end of the summer, he declared his intention to make the eradication of poverty a key legislative objective in 1964.35 Following Kennedy’s assassination, President Lyndon Johnson embraced the antipoverty rhetoric with great passion, calling for an “unconditional war on poverty,” in his State of the Union Address in January 1964. Weeks later he proposed to Congress the Economic Opportunities Bill of 1964.

The shift in focus served to align the goals of the Civil Rights Movement with key political goals of poor and working-class whites, who were also demanding economic reforms. As the Civil Rights Movement began to evolve into a “Poor People’s Movement,” it promised to address not only black poverty, but white poverty as well—thus raising the specter of a poor and working-class movement that cut across racial lines. Martin Luther King Jr. and other civil rights leaders made it clear that they viewed the eradication of economic inequality as the next front in the “human rights movement” and made great efforts to build multiracial coalitions that sought economic justice for all. Genuine equality for black people, King reasoned, demanded a radical restructuring of society, one that would address the needs of the black and white poor throughout the country. Shortly before his assassination, he envisioned bringing to Washington, D.C., thousands of the nation’s disadvantaged in an interracial alliance that embraced rural and ghetto blacks, Appalachian whites, Mexican Americans, Puerto Ricans, and Native Americans to demand jobs and income—the right to live. In a speech delivered in 1968, King acknowledged there had been some progress for blacks since the passage of the Civil Rights Act of 1964, but insisted that the current challenges required even greater resolve and that the entire nation must be transformed for economic justice to be more than a dream for poor people of all colors. As historian Gerald McKnight observes, “King was proposing nothing less than a radical transformation of the Civil Rights Movement into a populist crusade calling for redistribution of economic and political power. America’s only civil rights leader was now focusing on class issues and was planning to descend on Washington with an army of poor to shake the foundations of the power structure and force the government to respond to the needs of the ignored underclass.”36

With the success of the Civil Rights Movement and the launching of the Poor People’s Movement, it was apparent to all that a major disruption in the nation’s racial equilibrium had occurred. Yet as we shall see below, Negroes stood only a “brief moment in the sun.” Conservative whites began, once again, to search for a new racial order that would conform to the needs and constraints of the time. This process took place with the understanding that whatever the new order would be, it would have to be formally race-neutral—it could not involve explicit or clearly intentional race discrimination. A similar phenomenon had followed slavery and Reconstruction, as white elites struggled to define a new racial order with the understanding that whatever the new order would be, it could not include slavery. Jim Crow eventually replaced slavery, but now it too had died, and it was unclear what might take its place. Barred by law from invoking race explicitly, those committed to racial hierarchy were forced to search for new means of achieving their goals according to the new rules of American

democracy.

History reveals that the seeds of the new system of control were planted well before the end of the Civil Rights Movement. A new race-neutral language was developed for appealing to old racist sentiments, a language accompanied by a political movement that succeeded in putting the vast majority of blacks back in their place. Proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse, by demanding “law and order” rather than “segregation forever.”

The Birth of Mass Incarceration

The rhetoric of “law and order” was first mobilized in the late 1950s as Southern governors and law enforcement officials attempted to generate and mobilize white opposition to the Civil Rights Movement. In the years following Brown v. Board of Education, civil rights activists used direct-action tactics in an effort to force reluctant Southern states to desegregate public facilities. Southern governors and law enforcement officials often characterized these tactics as criminal and argued that the rise of the Civil Rights Movement was indicative of a breakdown of law and order. Support of civil rights legislation was derided by Southern conservatives as merely “rewarding lawbreakers.”

For more than a decade—from the mid-1950s until the late 1960s—conservatives systematically and strategically linked opposition to civil rights legislation to calls for law and order, arguing that Martin Luther King Jr.’s philosophy of civil disobedience was a leading cause of crime. Civil rights protests were frequently depicted as criminal rather than political in nature, and federal courts were accused of excessive “lenience” toward lawlessness, thereby contributing to the spread of crime. In the words of then-Vice President Richard Nixon, the increasing crime rate “can be traced directly to the spread of the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey and when to disobey them.”37 Some segregationists went further, insisting that integration causes crime, citing lower crime rates in Southern states as evidence that segregation was necessary. In the words of Representative John Bell Williams, “This exodus of Negroes from the South, and their influx into the great metropolitan centers of other areas of the Nation, has been accompanied by a wave of crime…. What has civil rights accomplished for these areas? . . . Segregation is the only answer as most Americans—not the politicians—have realized for hundreds of years.”38

Unfortunately, at the same time that civil rights were being identified as a threat to law and order, the FBI was reporting fairly dramatic increases in the national crime rate. Despite significant controversy over the accuracy of the statistics, these reports received a great deal of publicity and were offered as further evidence of the breakdown in lawfulness, morality, and social stability.39 To make matters worse, riots erupted in the summer of 1964 in Harlem and Rochester, followed by a series of uprisings that swept the nation following the assassination of Martin Luther King Jr. in 1968. The racial imagery associated with the riots gave fuel to the argument that civil rights for blacks led to rampant crime. Cities like Philadelphia and Rochester were described as being victims of their own generosity. Conservatives argued that, having welcomed blacks migrating from the South, these cities “were repaid with crime-ridden slums and black discontent.”40

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