V. Ignoring Violence

To this point, I have focused principally on crimes of violence and the state's response to such crimes. I part company with the New Jim Crow writers in this regard. They focus almost exclusively on the War on Drugs. This approach made sense for early ACLU advocates such as Glasser and Boyd, whose only objective was to curtail the drug war. It makes less sense for more recent proponents of the analogy, who attack the broader phenomenon of mass incarceration but restrict their attention to punishments for drug offenders. Other crimes--especially violent crimes--are rarely mentioned.

The choice to focus on drug crimes is a natural--even necessary--byproduct of framing mass incarceration as a new form of Jim Crow. One of Jim Crow's defining features was that it treated similarly situated blacks and whites differently. For writers seeking analogues in today's criminal justice system, drug arrests and prosecutions provide natural targets, along with racial profiling in traffic stops. Blacks and whites use drugs at roughly the same rates, but African Americans are significantly more likely to be arrested and imprisoned for drug crimes. As with Jim Crow, the difference lies in government practice, not in the underlying behavior. The statistics on selling drugs are less clear-cut, but here too the racial disparities in arrest and incarceration rates exceed any disparities that might exist in the race of drug sellers.

But violent crime is a different matter. While rates of drug offenses are roughly the same throughout the population, blacks are overrepresented among the population for violent offenses. For example, the African American arrest rate for murder is seven to eight times higher than the white arrest rate; the black arrest rate for robbery is ten times higher than the white arrest rate. Murder and robbery are the two offenses for which the arrest data are considered most reliable as an indicator of offending.

In making this point, I do not mean to suggest that discrimination in the criminal justice system is no longer a concern. There is overwhelming evidence that discriminatory practices in drug law enforcement contribute to racial disparities in arrests and prosecutions, and even for violent offenses there remain unexplained disparities between arrest rates and incarceration rates. Instead, I make the point to highlight the problem with framing mass incarceration as a new form of Jim Crow. Because the analogy leads proponents to search for disparities in the criminal justice system that resemble those of the Old Jim Crow, they confine their attention to cases where blacks are like whites in all relevant respects, yet are treated worse by law. Such a search usefully exposes the abuses associated with racial profiling and the drug war. But it does not lead to a comprehensive understanding of mass incarceration.

Does it matter that the Jim Crow analogy diverts our attention from violent crime and the state's response to it, if it gives us tools needed to criticize the War on Drugs? I think it does, because contrary to the impression left by many of mass incarceration's critics, the majority of America's prisoners are not locked up for drug offenses. Some facts worth considering: According to the Bureau of Justice Statistics, in 2006 there were 1.3 million prisoners in state prisons, 760,000 in local jails, and 190,000 in federal prisons. Among the state prisoners, 50% were serving time for violent offenses, 21% for property offenses, 20% for drug offenses, and 8% for public order offenses. In jails, the split among the various categories was more equal, with roughly 25% of inmates being held for each of the four main crime categories (violent, drug, property, and public order). Federal prisons are the only type of facility in which drug offenders constitute a majority (52%) of prisoners, but federal prisons hold many fewer people overall. Considering all forms of penal institutions together, more prisoners are locked up for violent offenses than for any other type, and just under 25% (550,000) of our nation's 2.3 million prisoners are drug offenders. This is still an extraordinary and appalling number. But even if every single one of these drug offenders were released tomorrow, the United States would still have the world's largest prison system.

Moreover, our prison system has grown so large in part because we have changed our sentencing policies for all offenders, not just drug offenders. We divert fewer offenders than we once did, send more of them to prison, and keep them in prison for much longer. An exclusive focus on the drug war misses this larger point about sentencing choices. This is why it is not enough to dismiss talk of violent offenders by saying that violent crime is not responsible for the prison boom. It is true that the prison population in this country continued to grow even after violent crime began to decline dramatically. However, the state's response to violent crime--less diversion and longer sentences--has been a major cause of mass incarceration. Thus, changing how governments respond to all crime, not just drug crime, is critical to reducing the size of prison populations.

I am sympathetic to the impulse to avoid discussing violent crime. Like other progressives, the New Jim Crow writers are frustrated by decades of losing the crime debate to those who condemn violence while refusing to acknowledge or ameliorate the conditions that give rise to it. As a society, Alexander writes, our decision to heap shame and contempt upon those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them. Since it is especially difficult to suspend moral judgment when the discussion turns to violent crime, progressives tend to avoid or change the subject.

To see how reticent mass incarceration's critics can be regarding the subject of violence, consider how Alexander describes Jarvious Cotton, whose story opens The New Jim Crow:

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.

Cotton is like his ancestors in that he cannot vote. But there is one salient difference between Cotton and his ancestors. They couldn't vote because they were black; Cotton lost his right to vote when he was convicted of murder. But Alexander nowhere mentions Cotton's crime, and her passive construction--Cotton has been labeled a felon--suggests that he had no choice in the matter. Now, I agree with Alexander that even though Cotton was convicted of murder, his status as a felon should not carry with it a lifetime of disenfranchisement. But Alexander does not strengthen her case, or help us understand the problem of mass incarceration in all of its dimensions, by declining to acknowledge his violent offense.

Avoiding the topic of violence in this manner is a mistake, not least because it disserves the very people on whose behalf the New Jim Crow writers advocate. After all, the same low-income young people of color who disproportionately enter prisons are disproportionately victimized by crime. And the two phenomena are mutually reinforcing.

I had long known this as an intellectual matter, but it was driven home for me in 1997, when I helped to open an alternative school for teens from the juvenile court system. Our application asked students to tell us the best and worst aspects of their last school. Too many fights was the most common response to the question about the worst aspects, and many students reported that too many people get jumped, school is chaos, and the environment was too hectic! The kids we served were typically considered to be the troublemakers; a good portion had been kicked out of school for fighting. They had been arrested for drug dealing, auto theft, gun possession, aggravated assault, robbery, and, in one case, murder. Yet their applications reminded us that even the tough kids seek safety and security. Their acts of violence, we came to understand, had often been closely connected to being in an environment that felt unsafe.

Over time, as we got to know our students better, we began to appreciate the toll that violence had taken, and continued to take, in their lives. For example, Bobby, one of our very first students, described being robbed and watching his friend get killed:

I try not to always do my best too much because I know, why do your best when it can all be taken away from you in mere seconds, over something stupid? Because my friend that got killed in front of me, I mean he didn't do nothing, he didn't do nothing, he was always good, he got killed for his jacket, because he didn't want to give up his jacket. . . .

When he was shot, I was lucky I didn't get shot. I got stabbed. Stabbed with an ice pick. . . . Lost a lot of blood and everything, passed out, blood clogged up. . . .

All I kept doing was looking at him, looking at him, and wondering was we both going to be all right, was we gonna be able to think about this, and get back at our person. . . .

That right there I think, inspired me to say man, what the fuck man, if a nigger can get away with killing somebody cold blood straight like that, what can't they get away with? What can't you get away with?

If people can do stuff like that and get away with it, and not be caught, not be arrested, not be locked up, not be killed, or suffer in no type of way, why can't I do that? Why can't I do that? If somebody can take my friend's life from me, somebody that I cared about, if they can take that from me, why can't I do that to about anybody else, to anybody else, and not care about it? Not care about who I hurt, who I make feel my pain. Just don't even care, don't have no sympathy for nobody.

There are no easy answers to the tragedy conveyed by Bobby's story. But those who write about mass incarceration from a racial justice perspective should not avoid the questions it raises. The attack terribly damaged Bobby's psyche. As educators who fervently believed that studying hard was key to a better life for our students, we were haunted by the question, Why do your best when it can all be taken away from you in mere seconds? Bobby pleads for accountability; if he is not able to get back at our person himself, he wants him arrested and punished. It is this part of Bobby's plea, I suspect, that causes many of the New Jim Crow writers to avoid the topic of violent crime. After all, won't discussing it simply reinforce the case for more punitive crime policy?

But allowing ourselves to hear Bobby's painful story need not mandate harsh justice as a response. Instead it might lead us to ask: What does accountability mean? Bobby's assailant should surely be locked up, but for how long? One in eleven American prisoners are serving life sentences, and about a third of those sentences are life without parole. In what conditions? What might we have done to reduce the likelihood that Bobby would be attacked in the first place? And what might we do to reduce the likelihood that Bobby will retaliate against his assailant (get back at our person) or some future innocent party (why can't I do that to anybody else, to anybody else, and not care about it)? These are supremely difficult questions that I do not attempt to answer in this Article. I raise them to highlight their importance and to suggest that, in focusing exclusively on the drug war, the New Jim Crow writers take themselves out of a discussion to which they might make important contributions.