I. A Brief History of the New Jim Crow

Though I have not determined who first drew the analogy between today's criminal justice system and Jim Crow, a number of writers began using the term to describe contemporary practices in the late 1990s. In 1999, for example, William Buckman and John Lamberth declared:

Jim Crow is alive on America's highways, trains and in its airports. Minorities are suspect when they appear in public, especially when they exercise the most basic and fundamental freedom of travel. In an uncanny likeness to the supposedly dead Jim Crow of old, law enforcement finds cause for suspicion in the mere fact of certain minorities in transit.

Buckman and Lamberth argued that racial profiling was a byproduct of the nation's strategy to combat drugs, and criticisms of the War on Drugs have remained central to the Jim Crow analogy. That same year, in a widely-quoted speech to the American Civil Liberties Union (ACLU), Executive Director Ira Glasser argued that drug prohibition has become a replacement system for segregation. It has become a system of separating out, subjugating, imprisoning, and destroying substantial portions of a population based on skin color. Graham Boyd, who led the ACLU's Drug Policy Litigation Unit, made a similar claim in 2002:

The war on drugs subjects America to much of the same harm, with much of the same economic and ideological underpinnings, as slavery itself. Just as Jim Crow responded to emancipation by rolling back many of the newly gained rights of African Americans, the drug war is replicating the institutions and repressions of the plantation . . . .

At the same time that ACLU lawyers were promoting the Jim Crow analogy in the policy and advocacy world, the idea began to gain adherents in the scholarly community. In 2001, Temple University Beasley School of Law hosted a symposium entitled, U.S. Drug Laws: The New Jim Crow?, which featured a series of lectures and articles supporting the analogy. The Jim Crow analogy has gained adherents in the past decade --most prominently, Michelle Alexander in her recent book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Alexander reports that she initially resisted the analogy when she encountered it as a young ACLU lawyer in the Bay Area. Upon noticing a sign on a telephone pole proclaiming that THE DRUG WAR IS THE NEW JIM CROW, she remembers thinking: 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. Over the years, however, she has come to believe that the flyer was right. 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.