Are We Done Punishing Black Men?

By Priyanka KumarApril 24, 2016

Are We Done Punishing Black Men?

The New Jim Crow by Michelle Alexander

IN THE LAST couple of years, important books such as On the Run, Just Mercy, and Ghettoside have provided insights on the odds stacked against black men. They have stripped away decades-old hypotheses about race relations and refocused the lens so we can better understand the devastating impact of racism on black communities across the United States. Already in 2012, legal scholar Michelle Alexander had provided a comprehensive map to this territory in The New Jim Crow, a book that bears looking at again. The author traces the evolution of racism since slavery and brings to light the covert ways in which it has evolved. She argues that the War on Drugs became, not at all accidentally, a systemic scourge that is largely responsible for the explosion of the prison population from under 350,000 people in 1972 to 2 million people today, a majority of whom are blacks and Latinos. Alexander not only challenges the notion that we live in a color-blind society, but effectively shatters it.

Like many before her, Alexander suggests it is a mistake to assume that Barack Obama’s presidency is the nation’s “triumph over race.” During a campaign stop at a Chicago church, Obama all but chided black men for not being better fathers. He acknowledged that too many black fathers were missing from their families’ lives and homes, without addressing where those fathers might be found — in prisons. In a talk I attended recently, Princeton professor Keeanga-Yamahtta Taylor said that black politicians who transcend race tend to scold the impoverished black population (in ways non-blacks would never get away with) as though their poverty were their fault and not worsened by the many circumstances that disfavor them. Bill Cosby, of all people, has said that black men “have no shame.” It turns out they have plenty. Alexander recounts how black communities struggle to cope with the stigma of incarceration, and often hide the fact that a family member is behind bars from neighbors and co-workers.

The War on Drugs has created a new racial caste system in the country, Alexander explains, and the 10s of millions of black men with a criminal record are the “undercaste.” Mass incarceration not only continues the legacy of racism and Jim Crow laws, but it has also become the new Jim Crow. She goes as far as to call incarcerated black men “untouchables” — at least to the extent that no politician will speak for them: the black criminal is the most despised group in our society.

Politicians have long spoken to their electorate in coded language. Republican candidate Richard Nixon made “law and order” a central theme of his campaign. He stoked the country’s anxieties when he spoke of the “lawlessness of civil rights activists” and about “domestic violence”; privately, Nixon “reportedly remarked with glee” that his hard-hitting TV ad about the problem of order in the United States was “all about those damn Negro-Puerto Rican groups out there.”

In the ’70s, black men in urban areas experienced high levels of unemployment as manufacturing jobs were steadily lost overseas. A decade earlier, Martin Luther King Jr. had warned that the United States’s gains in race relations thus far had come at “bargain basement prices” and that further gains would require economic measures to provide such basics as jobs and housing. King, influenced by M. K. Gandhi who had championed the Indian “untouchables,” also understood the importance of uplifting both the black and the white poor, so that impoverished whites wouldn’t turn against their black counterparts, as had happened in the past.

But instead of economic stimulus measures, Ronald Reagan found it more politically expedient to be tough on crime. He translated Nixon’s race-coded rhetoric into action. At a time when drugs were an insignificant contributor to violent crime in the country, the Reagan administration launched the War on Drugs, an initiative that bewildered local police departments at the time, but was lapped up by the media who splashed headlines about “welfare queens,” “crack babies,” and predatory black men:

In September 1986, with the media frenzy at full throttle, the House passed legislation that allocated $2 billion to the antidrug crusade […] Among other harsh penalties, the legislation included mandatory minimum sentences for the distribution of cocaine, including far more severe punishment for distribution of crack — associated with blacks — than powder cocaine, associated with whites […] The War on Drugs, cloaked in race-neutral language, offered whites opposed to racial reform a unique opportunity to express their hostility toward blacks and black progress, without being exposed to the charge of racism.

Over the next three decades, generations of black and brown men would be put away for drug possession — even for small amounts of marijuana — and for drug dealing. The resulting mass incarceration would tear apart the fabric of close-knit families and communities, and create a haunting legacy of helplessness and shame in black neighborhoods that were already stricken with unemployment. Alexander writes that Reagan’s successor, George Bush Sr., who also employed “implicit racial appeals” in his election campaign, embraced “the drug war with great enthusiasm” once he was in office.

More black people are in jail for the crime of possessing or dealing cocaine, even though white people commit these crimes significantly more frequently than blacks. Alexander notes that at least 10 percent of Americans violate drug laws annually “and people of all races engage in illegal drug activity at similar rates.” Recently, a heroin epidemic has swept through parts of the country, impacting young white adults from mainly middle-class families. The overwhelming response to the addicts has been compassionate. Even the police, for the first time, are focused on saving the lives of heroin addicts — as they should be — and certainly not on locking them up. But how can we square this double standard?

The police generally deny racial profiling. But it is well known that black neighborhoods are disproportionately targeted for monitoring and raids. Alexander writes that black men are also more likely than their white counterparts to be rerouted to the federal court system where the mandatory sentencing laws are harsher. These youths enter a Kafkaesque maze where a defendant has meager access to legal aid, and what legal aid there is, is spread thin among too many defendants to be effective. This is not the romantic world of TV shows, where, when a defendant wants to see a lawyer, legal aid materializes almost instantly.

Prosecutors have seemingly unlimited power in the criminal justice system; they can strike (usually) black jurors because a man, for instance, has a “goatee type beard.” And the Supreme Court has enabled this extraordinary breadth of discretion and lack of scrutiny:

In Purkett v. Elm, in 1995, the Supreme Court ruled that any race-neutral reason, no matter how silly, ridiculous, or superstitious, is enough to satisfy the prosecutor’s burden of showing that a pattern of striking a particular racial group is not, in fact, based on race.

In the last three decades, the Supreme Court’s decisions seem to have consistently not protected black men from all-white juries or racially charged incarceration:

In 1987, when media hysteria regarding black drug crime was at fever pitch and the evening news was saturated with images of black criminals shackled in courtrooms, the Supreme Court ruled in McCleskey v. Kemp that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the Fourteenth Amendment in the absence of clear evidence of conscious, discriminatory intent […] The real issue at hand was whether — and to what extent — the Supreme Court would tolerate racial bias in the criminal justice system as a whole. The Court’s answer was that racial bias would be tolerated — virtually to any degree — so long as no one admitted it.

Adolph Lyons was one of numberless young black men who have been stopped by the LAPD while driving. Lyons got out of his car and complied with the police pat down, but when he complained that the car keys he was holding were causing him pain, the police put him in a chokehold. Lyons lost consciousness and suffered permanent damage to his larynx. As Alexander explains, “Lyons sued the City of Los Angeles for violation of his constitutional rights and sought, as a remedy, a ban against future use of the chokeholds.” His case eventually reached the Supreme Court, where it was dismissed. The Supreme Court ruled that “Lyons lacked ‘standing’ to seek an injunction against the deadly practice. In order to have standing, the Court reasoned, Lyons would have to show that he was highly likely to be subject to a chokehold again.” That was before instances of police brutality against black men exploded into public view in recent years. Alexander argues that the Supreme Court has closed the doors to claims of racial bias at every stage of the criminal justice process, “from stops and searches to plea bargaining and sentencing.”

Alexander may be right to suggest that mass incarceration be considered a civil rights or a racial justice issue rather than a criminal justice issue. The root of today’s police brutality traces back to the end of slavery, when anxiety among plantation owners skyrocketed — what would a great mass of free, angry black men do to them? A new system of control was needed. “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.’”

Alexander cites the work of author Howard Winant to argue that race has become a modern concept. He writes: “Only in the past few centuries, owing largely to European imperialism, have the world’s people been classified along racial lines.”

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.

The concept of race is divisive, to say the least; historically, it has allowed even well-meaning people to adopt grossly divergent double standards. Alexander argues that today, our indifference toward the incarceration of black men may be more damaging than we realize. Where, for instance, is the national conversation about whether we should choose to put additional resources into affordable housing or prison construction? The expert opinion in the ’70s was that no new institutions should be built to imprison people because studies showed that such institutions increase the incidence of crime instead of decreasing it. Studies also recommended that such institutions for juveniles be closed. Instead, we took a different approach:

The dramatic shift toward punitiveness resulted in a massive reallocation of public resources […] [F]unding that had once been used for public housing was being redirected to prison construction. During Clinton’s tenure, Washington slashed funding for public housing by $17 billion (a reduction of 61 percent) and boosted corrections by $19 billion (an increase of 171 percent), “effectively making the construction of prisons the nation’s main housing program for the urban poor.”

There are 2 million people in prison, but there are many more — 65 million — who have a criminal record, which can exclude them from public assistance. That includes “tens of millions of Americans who have been arrested but never convicted of any offense, or convicted only of minor misdemeanors, and they too are routinely excluded from public housing.” You don’t have to serve time, you only need to be in the database in order to be treated like a second-class citizen. Alexander gives examples of people who were at a friend’s house when a drug raid occurred. That is grounds enough to brand them with a criminal record and cast a dark shadow over all future employment opportunities, close the door to public assistance, and even strip them of their constitutional right to vote (for former prisoners, depending on the state, it can take several years and the payment of prohibitive fines and court costs to get voting rights restored).

In On the Run: Fugitive Life in an American City (2014), Alice Goffman brought this conundrum to life. Goffman illustrated how when a young black man has entered the criminal justice system (sometimes for a crime as minor as a schoolyard fight), the system traps him in a maze of prison, parole, and probation, all but zeroing out his future job prospects. The book was initially well received, but the sociology community, perhaps in a case of schadenfreude, defocused the attention from this important work by using it to discuss the question of who is entitled to write about whom (Goffman is a white woman), or whether she committed a crime herself by accompanying a subject in a car when the subject’s motive was to avenge the gang-related killing of a mutual friend.

After Alexander’s measured assessment of mass incarceration, it is no longer possible to look the other way. She urges us to be compassionate and to care about our country’s mass incarceration problem. She suggests that even civil rights groups have lost touch with the black community and its true needs, and she urges those groups to move the focus away from issues such as affirmative action and instead build a grassroots movement to address mass incarceration. Inexplicably, President Obama has done little to alleviate this tragic problem, except to sign a law that reduces the severity of the punishment associated with the distribution of crack compared to powder cocaine. A grassroots movement may well be the best hope for black communities for whom, in the end, a black president was not able to provide hope.


Priyanka Kumar is an author and a filmmaker. She has a degree in International Relations from the University of Toronto.

LARB Contributor

Priyanka Kumar is the author of the widely acclaimed book Conversations with Birds (2022). Her essays and criticism have appeared in The New York TimesThe Washington Post, the Los Angeles Review of BooksOrion, and The Rumpus.


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