B. Political Expediency

Professor Bernard Harcourt, in his The Illusion of Free Markets: Punishment and the Myth of Natural Order, elegantly describes the political expediency in massively incarcerating poor individuals and the subtle connection between free-market advocacy and mass incarceration. Extrapolating from Harcourt, the War on Drugs is nothing more than a policy that fits seamlessly into a long global tradition of governments harshly imprisoning individuals while simultaneously freeing economic markets from regulation. Harcourt's The Illusion of Free Markets disabuses the notion that markets are free, as he demonstrates that capital markets require a significant degree of state and federal assistance --a fact that free-market fundamentalists conveniently ignore. Historically, across the world, nations that have emphasized unfettered markets, through working to preserve them or free them from regulation and oversight, have concurrently imposed upon their citizens harsh punishment regimes that increase imprisonment rates exponentially. It is as if the governing elite acknowledge that unfettered markets work to enrich the entrenched, while government-imposed incarceration both imprisons the society drag, and at the same time diverts the public attention away from the enriched entrenched and focuses it upon the incarcerated masses.

Harcourt's thesis is that governing elites rely upon notions of natural order in advocating for free markets while simultaneously using the construct of natural order to propound mass incarceration. If this is accurate, then the U.S. electoral and drug policy that began in the 1970s fits perfectly into this thesis Alexander described in The New Jim Crow. As incarceration rates exploded over the past two decades, politicians vigorously pursued efforts to deregulate the U.S. capital markets.

In the 1970s, Richard Nixon and his staff settled upon the Southern Strategy as an avenue to win elections and to perpetuate the United States's sordid racial past, including slavery and Jim Crow. By politically dividing blacks and poor southern whites purposely, Nixon began to forge a new Republican strategy that perseveres today. The division, coming upon the heels of the Civil Rights Act of 1964, began to use racial coding to subordinate African-American interests rather than the racist construction used in the Jim Crow era.

Racial coding has a long tradition in the United States. That it persists in the purportedly post-racial Obama era belies the very positioning of post-racialism and post-racialists. Racial coding entails engaging issues such as crime and welfare are now widely viewed as coded issues that play upon race--or more centrally, upon white Americans' negative views of black Americans--without explicitly raising the race card. By embracing coded issues, politicians and pundits are able to exploit white American's racial animosity and resentment toward minority Americans while diminishing the appearance of race hatred or race baiting.

Thus, in this new era of racial coding, politicians continue to paint African-Americans as undeserving recipients of welfare (the welfare queen), undeserving of mercy (Willie Horton ad), undeserving of education (backlash against affirmative action), undeserving of the right to vote (felon disenfranchisement and voting discrimination against the poor), and more deserving of prison than freedom (the crack epidemic and mandatory sentencing). This racial coding captured America's imagination and became the dominant political fascination of the country. Political figureheads primarily perpetuated these nefarious concepts, particularly Presidents Reagan, Bush, and Clinton, each of whom were intent on winning elections and simultaneously freeing the capital markets.

Fitting exactly into Harcourt's thesis and dating back to when legislatures punished crack cocaine offenses one hundred times more than powder cocaine, U.S. politicians have scrambled to win the title of toughest on crime. Meanwhile, these politicians voted often and repeatedly to deregulate the U.S. capital markets. When political power and entrenchment become intertwined with mass incarceration, the outcome is an increasing stream of prisoners, with little consideration given to reform or rehabilitation.

Conflict theory, or more accurately, conflict criminology as expanded in the 1970s by sociologists Austin Turk and William Chambliss among others, provides context for Harcourt's historical observations. Turk and Chambliss argue that those in power work diligently to maintain and increase their power by creating laws and policies that criminalize the powerless in order to ensure that the disaffected are unable to gain power. Alexander theorizes that the federalization and criminalization of the drug war was simply an instinctive response from the powerfully entrenched to the political gains that people of color made through the Civil Rights Movement in the 1960s. Harcourt theorizes that when elites in power work to maintain their influence and wealth (through rigged capital markets), the instinctive corollary is to develop ways to criminalize the powerless, all in order to maintain wealth, influence, and position. Simply stated, the War on Drugs perpetuates subordination of minority Americans, while it simultaneously enriches and protects the power of the elite.


. Tupac Shakur, All Eyez on Me, on All Eyez on Me (Death Row Records/Interscope Records 1996) (The Feds is watchin', n****z plottin' to get me; Will I survive, will I die?, Come on, let's picture the possibility; Givin' me charges, lawyers makin' a grip; I told the judge I was raised wrong, and that's why I blaze shit.).

[a1] . Associate Dean for Academic Affairs and Professor of Law, Indiana Tech Law School; former Professor of Law, West Virginia University College of Law (2003-2012); J.D., Howard University School of Law.