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Michelle Alexander, author of "The New Jim Crow," speaks at the Miller Center Forum, December 3, 2010. (Miller Center/Flickr)

Revisiting "The New Jim Crow"

John P. Walters & David W. Murray

Note: The original version of this essay, under a slightly different title and without the source notes included below, was published August 30, 2015, on powerlineblog.com.

Michelle Alexander’s 2012 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness (hereafter, TNJC) is careless. The carelessness produces misdirection and it undermines the argument. Facts are stretched, the scholarly apparatus is weak, and the core argument is often contradicted by its own evidence.

Nonetheless, TNJC is a very popular book—rising to The New York Times best seller list, required reading for incoming students at Brown University, said by the San Francisco Chronicle to be “the Bible of a social movement.” Is its power rooted in a deeper truth or in a revealing lie that many of us want to believe or need to believe in the face of an ugly reality?

Full disclosure: We have lived through and remember the drug and crime problem of the 1980’s onward. We have done our best to make the problem smaller from positions within the White House, serving for at least a time in every Administration from Reagan to Obama. We know from personal experience that TNJC is built on falsehood. We also recognize that those who want to believe TNJC may view our experience as a cover-up of the great wrong alleged. But we write with the hope that open-minded readers can and will judge the facts for themselves.

In a nutshell, TNJC argues that “[w]e have not ended racial caste in America; we have merely redesigned it.” From the book jacket: “By targeting black men through the War on Drugs, and decimating communities of color, the U.S. criminal justice system functions as a contemporary system of racial control—relegating millions to permanent second-class status.” A primary concern is the loss of the right to vote.

The specific list of factual misstatements is long. For a book with scholarly pretentions, it is noteworthy that the book lacks a bibliography, and its endnote citations are woeful.

Consider that we are told: “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.” The point is not a minor one, since it is offered in support of a core thesis: when there really wasn’t a drug problem in our cities, in order to achieve “social control” over blacks through “mass incarceration,” President Ronald Reagan created and then hyped a crisis using the media. This claim is found in the Introduction. Turning to the endnote, however, one finds no documentation, but rather a simple line that Reagan’s action “is discussed in more depth in Chapter 1.”

That’s a bit cheesy, but what then happens in Chapter 1? There, after reading about “code words” for race, we find again that Reagan “launched a media offensive to justify the ‘War on Drugs.’” And there’s another endnote which, when pursued, leads nowhere. It is a reference to the 1992 National Drug Control Strategy—produced after the Reagan Presidency.

This is cat-and-mouse. It anticipates an unserious, unquestioning reader, one willing to be led.

What about the author’s claim that the “War on Drugs” was initiated by Reagan, (detractors of Richard Nixon will be disappointed), or the even more dramatic claim that Reagan’s “ambitious federal policy” in fact turned into “an actual war.” How are we to take this hyperbole?

The author cites fears “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.” She calls these “conspiracy theories,” but what does the professor actually believe? She tells us: “While the conspiracy theories were initially dismissed as far-fetched, if not loony, the word on the street [i.e., genocide] turned out to be right, at least up to a point.”

To forward the concept of a policy being “genocide up to a point” (that point being the intent to kill a race and actually trying to do so) is such extreme overstatement it should be self-discrediting.

Still TNJC plunges forward. Evidence that the crack epidemic was “genocidal” is supposed to be be contained in the claim that “[t]he CIA admitted in 1998 that guerilla armies that it actively supported in Nicaragua were smuggling illegal drugs into the United States.” The CIA further “admitted that . . . it blocked law enforcement efforts to investigate illegal drug networks” funding its covert war.1

Whatever the claimed involvement of the CIA, its actual significance—how much illegal drug supply this “conspiracy” dumped into American streets—is something the author tellingly declines to explain or quantify. If you are old enough to remember the Medellin and Cali cartels (which really did traffic massive amounts of cocaine into the United States during that period), you are supposed to forget them here.

Assumptions like these, in which every development suggests the existence of a full-scale “plot,” might incline us to dismissiveness when the author finally gets to actual data. Blacks are disproportionately incarcerated for drug crimes on a straight per-capita basis. That’s certainly true. But it’s not a phenomenon peculiar to drug statutes; blacks are incarcerated for (and, crucially, victims of) almost every Index crime at depressingly higher per capita rates.

Even though TNJC’s attack ostensibly focuses on drug laws, it’s argument ultimately embraces the whole of American criminal justice: it is all “a tightly networked system of laws, policies, customs, and institutions” that produces “mass incarceration” to achieve “social control.” Here, Ms. Alexander quotes Michael Tonry: “Governments decide how much punishment they want, and these decisions are in no way related to crime rates.”

But this claim that blacks are subordinated and controlled creates an obvious problem. TNJC must explain away the election of Barack Obama within a system allegedly dedicated to keeping blacks from power: “Many will wonder how a nation that just elected its first black president could have a racial caste system,” and “[i]t’s a fair question,” she acknowledges. Indeed, it is. But her answer is odd: “[T]here 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.” We have no idea what exactly that’s supposed to mean, but it does seem to suggest that for America, where Ms. Alexander is concerned, it’s damned when you do—and double-damned when you don’t.

Caste or Conduct?
TNJC opens with a compelling anecdote about a man named Jarvious Cotton:

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.

The idea that the state of Mississippi, home to Jarvious Cotton, has deliberately designed its laws to create a systematic racial caste system would have been undeniable 50 years ago. But has there been no progress since? Yes, Mississippi continues to deny the ballot to any person convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy.”2 If this is a caste system—unless you consider “murderer” and “arsonist” perfectly acceptable synonyms for “African American“—it’s an oddly leaky one.

On its face, instead, Mississippi voting status is determined by conduct. And while violent crimes may involve clear racial disparities of the sort TNJC is exercised about, disenfranchisement for typically white-collar offenses like “bribery,” financial fraud, and “embezzlement” would hardly seem consistent with a conscious “project” to create a race-based caste system.

Nor does actual voting behavior sustain Ms. Alexander’s case for the existence of such a project. As the Associated Press reported after the 2012 Presidential election, registered black voters in Mississippi went to the polls at a higher rate than did white voters.3 This is not what “systematic racism” looks like, as anyone old enough to have witnessed the Civil Rights Movement can confirm.

Then there is the problem of Ms. Alexander’s maddeningly slippery rhetoric. TNJC tells us only that Jarvious Cotton cannot vote because, “like many black men in America,” he “has been labeled a felon.” TNJC does not tell us why he has been so labeled. It’s as if “labels” descended willy-nilly, independent of conduct.

In fact, Jarvious Cotton was indicted in Mississippi for the shooting death of 17-year-old Robert Irby, escaped from prison while awaiting trial, and fled to New York where he was subsequently arrested for a marijuana violation—and where fingerprint analysis then “labeled” him a fugitive wanted for a capital crime. Mr. Cotton was later extradited back to Mississippi and convicted of murder by a jury of his peers.4

Jarvious Cotton is now out on parole and ineligible to vote in Mississippi, not because he is black, but because he killed someone—which is not the same thing, though TNJC consistently conflates these issues rather than wrestle with the messy and inconvenient details.

Conduct either matters or it doesn’t. New York City Police Commissioner William Bratton asserts that it does. Bratton argues that blacks and Hispanics “represent half of our city’s population, but 96.9 percent of those who are shot, and 97.6 percent of those who commit the shootings.”5 These are terrible, troubling numbers. Dismissing the underlying phenomenon as a matter of mere “labels” is an irresponsible evasion.

Or consider TNJC’s fable of the suburbs:

From the outset, the drug war could have been waged primarily in overwhelmingly white suburbs or on college campuses. SWAT teams could have rappelled from helicopters in gated suburban communities and raided the homes of high school lacrosse players known for hosting coke and ecstasy parties after their games.... Suburban homemakers could have been placed under surveillance and subjected to undercover operations designed to catch them violating laws regulating the use and sale of prescription ‘uppers.’ All of this could have happened as a matter of routine in white communities, but it did not. Instead, when police go looking for drugs, they look in the hood.

We are expected to ignore the fact that black and white middleclass suburbs are not, by any objective measure, the primary locus of the criminal conduct at issue: firearms discharges (detected by automated recorders, not subject to “implicit bias”), violent-crime-related 911 calls, actual homicide victims—all these things are significantly less common in suburbs, and every sensible person knows that already.

The Drug Data
Again we must dismiss actual data when we read that “The uncomfortable reality is that arrests and convictions for drug offenses—not violent crime—have propelled mass incarceration.” In state prisons, holding the largest number of incarcerated inmates, only 16 percent are drug offenders—54 percent of those incarcerated are violent offenders.6

In the substantially smaller federal system, the proportion of drug offenders does approach 50 percent, largely because federal enforcement focuses on major domestic and international traffickers—34 percent of the federal prison population is Hispanic and 23 percent are not U.S. citizens.7 TNJC’s argument that drug crime, particularly among blacks, has propelled incarceration rates simply does not add up.

But how strong is TNJC’s best case about the racial injustice of the drug war? The argument is that blacks are treated unjustly by disproportionate drug arrests when survey data show that their use of drugs is less than that of whites, and even their rate of drug dealing is surpassed by that of whites.8

One could refute the specific criminal justice and drug use claims, and we shall try in one case. But we suspect that this is a trap. Every effort to rebut will be seen as confirmation of denial, even complicity, in American injustice. Even invoking the differential victimization of blacks by crime can be dismissed as pretext sustaining the system of injustice.

The primary source for TNJC drug data is a 2006 report, “Juvenile Offenders and Victims,” authored by Howard Snyder and Melissa Sickmund (the author has her as “Sickman,” as do other prior sources).

It is worth examining these claims with care.

Specifically, the “stark racial disparities cannot be explained by rates of drug crime,” because blacks are said to not to use drugs disproportionately. In fact, the author argues, “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.” Finally, “white youth are more likely than black youth to engage in illegal drug sales.”

Do these counter-intuitive claims stand up when we look at the full battery of statistics, and not just those hand-picked?

First, the claims do not comport with the National Survey on Drug Use and Health, the principle data source for drug use among adults. Based on self-reports, it shows that every year since a re-design in 2002 until the most recent iteration (2013 data), black rates of current drug use are not lower than that of whites, Hispanics, and Asians—they
exceed them.9

TNJC receives more support for (some) youth drug use rates, but only for the unwary. The major long-term survey of youth drug use, the school-based Monitoring the Future (MTF) study run by the National Institute on Drug Abuse, shows that for high-school seniors, whites report generally higher illicit drug use rates than blacks.10

Caution is necessary, however, before accepting TNJC. MTF excludes by design youth who are school drop-outs, institutionalized, homeless, or runaways. Which is precisely the fate of many youth drug users. That is, given the large disproportion of black youth who have dropped out (especially drug users), they are simply not proportionately present in the sample measuring seniors.

Blacks also report, in this survey, only half the rate of alcohol use, and only one third the rates of tobacco use, compared to white youth, further suggesting some skewing by virtue of differential attrition.

Finally, there is the claim concerning drug sellers. The source for this is the National Longitudinal Survey of Youth, again based on self-reports, that asked whether between the ages of 12-16, youth had sold drugs.11

TNJC seizes on the fact that white youth answered yes in 17 percent of cases, Hispanics in 16 percent, but blacks in only 13 percent of cases. (The confidence intervals are +/- 2 percentage points, making the four points between black and white reports a pretty close thing.)

The case is stronger when asked of youth who sold drugs at ages 16-17, only. For these youth, the disparity does grow: whites reported being 42 percent of those who sold, blacks only 29 percent.

Case closed? TNJC leaves off, with the statistical cherry picked. But what does the next, unmentioned, table show? Move forward one year. For those who sold drugs at age 18-19, only, the data flip: blacks represent 44 percent, whites only 28 percent; an even greater disparity, but in the opposite direction.

And completely missing is the report’s summary of case rates, which subverts TNJC’s argument: “In 2002, case rates for black juveniles were substantially higher than rates for other juveniles in all offense categories. . . . [I]n 1991, the drug offense case rate for black juveniles was more than 5.5 times the rate for white juveniles.”12

Note that the critical exhibit for TNJC, that blacks are disproportionately imprisoned for drug trafficking crimes that they don’t differentially commit, hinges on the slender reed of a 2006 body of self-report data from juveniles which shows no such thing.

This, as we say, is the book’s strongest case. Once we actually incorporate the reality of criminal conduct, however, the book descends into self-deceptions, more and more difficult to believe. In fact, its claims contradict our shared experience.

The author should acknowledge that great political pressure for tough law enforcement has come from black communities that suffer disproportionate victimization. It has come from the fears, and hopes, of mothers of sons at risk of death from gang involvement. This decisive truth about law enforcement in America is the real refutation of TNJC.

If you’re not troubled yet, you should be. The popularity of TNJC risks engendering a cycle of violent victimization of our most vulnerable citizens, who must depend on the criminal justice system to be their protector. The reality of black victimization requires us to strengthen, not condemn and abandon, institutions of law and order. TNJC makes telling the truth about our struggle on the streets an urgent duty.

The new students at Brown University, required to confront untrue charges that criminal justice in America is no more than an exercise in deliberate “mass incarceration,” should beware lest we fall prey to yet another “low, dishonest decade.”

1 One can only imagine the umbrage if the CIA, instead of admitting, had denied these charges; perhaps it would have to be even stronger proof of genocidal intent. The primary source for these "admissions," by the way, is Alexander Cockburn, writing in The Nation.
2 Voting Rights Restoration Efforts in Mississippi, Brennan Center for Justice at New York University School of Law, March 27, 2014.
3 Hope Yen, "Black Voter Turnout Passes Whites In 2012 Election, A First In Census," Huffington Post, May 8, 2013.
4 "Top New York Court Refuses to Overturn A Man's Extradition," New York Times, April 3, 1988.
5 David W. Murray and John P. Walters, "'Broken Windows' Policing is Not Broken," Hudson.org, June 5, 2015.
6 E. Ann Carson, Ph.D, "Prisoners in 2013, Bureau of Justice Statistics, last modified September 30, 2014, p. 15. PDF available.
7 Inmate Ethnicity, Federal Bureau of Prisoners, last updated July 25, 2015 and Inmate Citizenship, Federal Bureau of Prisoners, last updated July 25, 2015.
8 TNJC, pp. 6-7, endnotes 10 and 11, and p. 17.
9 Substance Abuse and Mental Health Services Administration, Results from the 2013 National Survey on Drug Use and Health: Summary of National Findings, NSDUH Series H-48, HHS Publication No. (SMA) 14-4863. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2014. Figure 2.12 page 26 "Past Month Illicit Drug Use Among Persons 12 or older, by Race/Ethnicity: 2002-2013." PDF available.
10 Howard N. Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006, National Report. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, 2006. Page 76 of Juvenile Justice Report: Source: Authors’ adaptation of Johnston et al.’s Monitoring the Future: National survey on drug use, 1975–2003. PDF available.
11 Page 70 Bureau of Labor Statistics: BLS National Longitudinal Survey of Youth 1997-2001 Source: Authors’ adaptation of McCurley’s Self-reported law-violating behavior from adolescence to early adulthood in a modern cohort. See also: McCurley, C. 2005. Self-reported law-violating behavior from adolescence to early adulthood in a modern cohort. Unpublished manuscript. Pittsburgh, PA: National Center for Juvenile Justice. And: McCurley, C., and Snyder, H. Forthcoming. Risk, protection, and family structure. OJJDP Juvenile Justice Bulletin. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.
12 Synder and Sickman, Juvenile Offenders and Victims. Person offense case rate is found on page 165 of the Juvenile Justice report; Chapter: "A Disproportionate number of delinquency cases involved black juveniles." PDF available.

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