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March 7, 2012

"Drug Policy as Race Policy: Best Seller Galvanizes the Debate"

JP-JIMCROW2-popupThe title of this post is the headline of this interesting piece in today's New York Times concerning the public and scholarly discourse engendered by my OSU colleague Michelle Alexander's must-read book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.  Here are excerpts: 

Garry McCarthy, a 30-year veteran of law enforcement, did not expect to hear anything too startling when he appeared at a conference on drug policy organized last year by an African-American minister in Newark, where he was the police director.

But then a law professor named Michelle Alexander took the stage and delivered an impassioned speech attacking the war on drugs as a system of racial control comparable to slavery and Jim Crow — and received a two-minute standing ovation from the 500 people in the audience.  “These were not young people living in high-crime neighborhoods,” Mr. McCarthy, now police superintendent in Chicago, recalled in telephone interview. “This was the black middle class.”...

During the past two years Professor Alexander has been provoking such moments across the country — and across the political spectrum — with her book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” which has become a surprise best seller since its paperback version came out in January.  Sales have totaled some 175,000 copies after an initial hardcover printing of a mere 3,000, according to the publisher, the New Press.

The book marshals pages of statistics and legal citations to argue that the get-tough approach to crime that began in the Nixon administration and intensified with Ronald Reagan’s declaration of the war on drugs has devastated black America.  Today, Professor Alexander writes, nearly one-third of black men are likely to spend time in prison at some point, only to find themselves falling into permanent second-class citizenship after they get out.  That is a familiar argument made by many critics of the criminal justice system, but Professor Alexander’s book goes further, asserting that the crackdown was less a response to the actual explosion of violent crime than a deliberate effort to push back the gains of the civil rights movement.

For many African-Americans, the book — which has spent six weeks on the New York Times paperback nonfiction best-seller list — gives eloquent and urgent expression to deep feelings that the criminal justice system is stacked against them.  “Everyone in the African-American community had been seeing exactly what she is talking about but couldn’t put it into words,” said Phillip Jackson, executive director of the Black Star Project, an educational advocacy group in Chicago....

The book is also galvanizing white readers, including some who might question its portrayal of the war on drugs as a continuation of race war by other means.  “The book is helping white folks who otherwise would have simply dismissed that idea understand why so many people believe it,” said David M. Kennedy, director of the Center for Crime Prevention and Control at the John Jay College of Criminal Justice.  “It is making them take that seriously.”

“The New Jim Crow” arrives at a receptive moment, when declining crime rates and exploding prison budgets have made conservatives and liberals alike more ready to question the wisdom of keeping nearly 1 in 100 Americans behind bars....

Whatever Professor Alexander’s account of the origins of mass incarceration, her overall depiction of its human costs is resonating even with people who disagree with her politics.

Rick Olson, a state representative in Michigan, was one of the few whites and few Republicans in the room when Professor Alexander gave a talk sponsored by the state’s black caucus in January. “I had never before connected the dots between the drug war, unequal enforcement, and how that reinforces poverty,” Representative Olson said. “I thought, ‘Gee whiz, let me get this book.’ ” Reading it, he said, inspired him to draft a bill decriminalizing the use and possession of marijuana....

In an article to be published next month in The New York University Law Review, James Forman Jr., a clinical professor at Yale Law School and a former public defender, calls mass incarceration a social disaster but challenges what he calls Professor Alexander’s “myopic” focus on the war on drugs.

Painting the war on drugs as mainly a backlash against the gains of the civil rights movement, Professor Forman writes, ignores the violent crime wave of the 1970s and minimizes the support among many African-Americans for get-tough measures. Furthermore, he argues, drug offenders make up less than 25 percent of the nation’s total prison population, while violent offenders — who receive little mention in “The New Jim Crow” — make up a much larger share.  “Even if every single one of these drug offenders were released tomorrow,” he writes, “the United States would still have the world’s largest prison system.”

To Professor Alexander, however, that argument neglects the full scope of the problem. Our criminal “caste system,” as she calls it, affects not just the 2.3 million people behind bars, but also the 4.8 million others on probation or parole (predominately for nonviolent offenses), to say nothing of the millions more whose criminal records stigmatize them for life. “This system depends on the prison label, not just prison time,” she said.

In a telephone interview, Professor Forman, a son of the civil rights leader James Forman, praised the book’s “spectacular” success in raising awareness of the issue.  And some activists say their political differences with Professor Alexander’s account matter less than the overall picture she paints of a brutal and unjust system.

Craig M. DeRoche, director of external affairs at the Justice Fellowship, the advocacy arm of Prison Fellowship, a Christian ministry founded by the former Nixon aide Charles Colson, said he rejected the political history in “The New Jim Crow” but still considered it essential reading for conservatives. “The facts are the facts,” he said. “The numbers are the numbers.”

Some recent related posts:

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Comments

Those who carry on the drug war should hang their heads in shame and keep their authoritarian mindsets to themselves, or move to China or Iran. (Barack Obama and Eric Holder should hang their heads extra low. Obama used drugs in his younger days, but he now appoints a drug Nazi as his drug czar and sponsors raids of medical marijuana clinics.)

Drug warriors would have imprisoned Steve Jobs had they caught him using LSD.

Drug warriors would have imprisoned George W. Bush had they caught him snorting cocaine while cheerleading at Yale. (Well, OK, that might have been a good idea, in retrospect.)

Drug warriors commit Batson violations over and over again. Rarely do they suffer any consequences. Drug warriors didn't bat an eye at sending young black men and women off to prison for decades for non-violent crack offenses, particularly those who had the audacity not to cooperate with knuckle-dragging DEA agents who wanted them to give up their mothers, brothers, and close friends.

To hell with the drug war and its warriors. Better yet, put them in prison instead of those they have victimized. We'd be much better off.

Posted by: Calif. Capital Defense Counsel | Mar 7, 2012 4:25:35 PM

**Correction** Papa Bush would have probably bought/influence-peddled little George out of any real trouble.

Posted by: Calif. Capital Defense Counsel | Mar 7, 2012 4:29:02 PM

A serious topic, and an idiotic first two posts.

A prison bed is a scarce resource. Its use must be optimized. Are there people who have gotten exceedingly harsh sentences that, 10 years out, seem to call for some sort of intervention, yes.

A robust (but not overly lenient) clemency system should be in place. Also, people who have lived a clean life for 15-20 years after being released from prison should be considered for clemency as a matter of course.

However, people who sell poison to kids need to go away for a long time. Let's not forget what people do to get their fix.

Posted by: federalist | Mar 7, 2012 4:56:34 PM

'people who have lived a clean life for 15-20 years after being released from prison should be considered for clemency'

10 yes, 15-20 forget it the damage is done, just a hollow treat with no prospect for a successful professional career in anything but construction or the trades

Posted by: lax | Mar 7, 2012 5:32:16 PM

federalist --

You should understand that CCDC has admitted to favoring the legalization of all drugs, no matter how dangerous. This position is palpably so extreme that the other liberals on this board, with very few exceptions, wisely tend to hunker down rather than be associated with it.

Notice also the ad hominem quality of the posts. It's not just that Obama and Holder are mistaken or error-prone; it's that Obama and Holder should "hold their heads extra low" in shame and disgrace.

I wonder when, if ever, the anti-drug warriors will stop with the rote ascription to others (the majority) of base motives and just make business-like arguments. They might conceivably win (at least with respect to pot) by doing so, but will quite certainly continue to lose if they don't. Not that pragmatism is the principal reason to act like an adult with adult manners; the principle reason is simply that adult manners are virtuous per se.

Posted by: Bill Otis | Mar 7, 2012 5:36:55 PM

Doug --

I see that this is an unusually long entry. Are you of the view that anything close to the majority of those who favor keeping drugs illegal hold that view because of racial bigotry against blacks?

Posted by: Bill Otis | Mar 7, 2012 5:42:04 PM

Those who perpetuate the drug war feel as though they know better than intelligent adults what substances those intelligent adults should ingest.

And, by god, they'll put you and your loved ones in cages if you don't conduct yourself in accordance with their cramped, authoritarian views.

These are the folks that are responsible for marijuana being listed as a Schedule I controlled substance, despite the fact that scientists and doctors have told us of the medical value of cannabinoids. These folks are flat-earthers. Are they aware that their federal government, in conjunction with the Univ. of Mississippi, cultivates and distributes marijuana to seriously ill individuals for medical purposes?

Those who carry out the drug war need to be called out for their anti-libertarian, corrupt, dishonest perpetuation of a despicable, unjust, ignorant crusade. They ally themselves with snitches. They threaten the girlfriends of those who furnish drugs to willing purchasers/users. These drug warriors do not believe in free choice. They are the worst of the worst.

Posted by: Calif. Capital Defense Counsel | Mar 7, 2012 7:00:19 PM

People who use and sell illegal drugs frequently get tagged with the felony record that prevents them from voting for politicians that would legalize those drugs. Oh the irony!

Posted by: C | Mar 7, 2012 8:11:44 PM

When law enforcement ignore crime in minority neighborhoods, they are labeled as racist. When law enforcement arrest and prosecute criminals from minority neighborhoods, they are labeled as racist. Almost half of U.S. murder victims are black; and almost half of U.S. murderers are black. Violent crime, drug abuse, and drug dealing are what are destroying many black neighborhoods; not law enforcement's response to them. It isnthe cycle of disfunction that needs to stop; not any cycle of enforcement. Sure, incarceration is overused and sentencing policy ought to be modified. But Professor Alexander's argument distracts from the genuine problem. Does anyone believe that if we legalized all drugs and emptied the prisons that crime-ridden and drug-infested neighborhoods would become law-abiding? Do the people who actually live in those neighborhoods want that policy change?

Posted by: Concerned Citizen | Mar 7, 2012 8:16:50 PM

Concerned Citizen --

"Do the people who actually live in those neighborhoods want that policy change?"

Great question, and the answer is no, as I learned when I litigated US v. Olivis, 97 F.3d 739 (4th Cir. 1996). The feds initially declined the case, but after a meeting with outraged community leaders, agreed to take it.

Posted by: Bill Otis | Mar 7, 2012 8:31:17 PM

I agree that drugs laws are the new Jim Crow but that didn't happen because of animus towards blacks but because of favoritism towards rich, spoiled, party-hardy cocaine users. The problem with implementing the drug laws fairly always was that too many Harvard and Stanford and other Ivy League students would wind up behind bars. The great irony of the new Jim Crow is that it's a function of the fact that black communities have held themselves accountable while white communities have not. The correct solution is not to liberalize drugs laws. It's to take the entire communities of Bloomfield Hills (MI) and Rancho Santa Fe (CA) and throw their cocaine-snorting asses in prison. But alas, we all know that will never happen. I can dream though.

Posted by: Daniel | Mar 8, 2012 12:16:19 AM

The War on Drugs provides federal price support to the enemies of the USA, the Taliban, Al Qaeda, and the Mexican drug cartel. Aside from wrecking our balance of trade, it enriches these enemies to fund their war on our heroes.

If safety were the motivation, alcohol and cigarettes are the most addictive drugs, and the most damaging, killing 500,000 people year. Marijuana might kill 500 people a year, mostly in car crashes. This inconsistency brings contempt on the law.

I have proposed an adult pleasure license to address the problem of addiction. Most people do not have any trouble in social use. As problems accumulate, one gets points on the license. Past a certain number, one is offered treatment. Past another point, one loses the license.

Posted by: Supremacy Claus | Mar 8, 2012 2:22:19 AM

"They ally themselves with snitches."

Do you consider a grandmother who has watched her community turn into a violent mess calling and complaining about the crack den across the street a "snitch?"

"Those who perpetuate the drug war feel as though they know better than intelligent adults what substances those intelligent adults should ingest."

Do you suggest legalizing all drugs like Prozac, Xanax, Oxycodone, Bronchial Inhalers, Anabolic Steroids, "Bath Salts," Crystal Meth, etc ??? In your world can companies sell whatever they want to whatever adult wants it? Do you have an example where this has worked?

On point, do you believe that "drug warriors" do so to attack minorities? In my time prosecuting drug cases, I certainly didn't have this motive and I recall prosecuting and then defending drug users of all color, creed, and economic background.

Posted by: Robert Barnhart | Mar 8, 2012 11:17:26 AM

Additionally, should myself and my friends whom I used to work with be rounded and put into prison? I can't tell if you actually mean this or if it's a metaphor.

Posted by: Robert Barnhart | Mar 8, 2012 11:21:05 AM

"federalist --

. . .

Notice also the ad hominem quality of the posts. It's not just that Obama and Holder are mistaken or error-prone; it's that Obama and Holder should "hold their heads extra low" in shame and disgrace."


If "hold[ing] their heads extra low" is improper ad hominem, then what should we call federalist's perfunctory tirades?

Posted by: Res ipsa | Mar 8, 2012 11:40:35 AM

I have not finished reading Alexander's book, which I just picked up this weekend, so my comments do not reflect a response to her detailed arguments, but rather a gut reaction to the central premise. While I agree that our criminal justice policies have led to a new era of separateness and inequality perpetuating a lack of full access to citizenship on the part of many people of color, I am not sure I can take the next step and see it as deliberate. I think it's more akin to de facto versus de jure segregation. And as often as not, I think the policies that have led us to this point have been well-intentioned, if terribly misguided.

For this reason, I find strident name-calling (i.e., drug Nazi) wholly unhelpful in moving the discussion forward. It seems to me a far better thing to presume, at least for the sake of argument, that the participants in the argument come to it in good faith. I think it's fair to highlight the logical inconsistency of political leaders (including our last three presidents) who have used or at least experimented with drugs supporting or adopting programs that could have made them felons; but perhaps it is also fair to acknowledge that through the lens of age and responsibility, the behaviors most of us exhibited in youth appear to be less safe or tolerable. While that will no doubt raise the ire of the true libertarian, I'm ok with that. Because I'm not particularly interested in being run over by a drunk or high 17-year old. Call me crazy. Or Nazi?

The point is, Hobbes aside, I think most people believe it is appropriate to limit individual behavior in order to foster a good community. The question is whether we are instituting those controls with an overabundance of reliance on punishment as opposed to other positive or negative reinforcement tools. Moreover, where we must rely on punishment for enforcement, are we doing enough as a society to reintegrate and redeem those who earnestly wish to re-enter the community when their punishment has been satisfied?

In my experience, we are not. I encounter countless defendants (mostly black men) every year whose only crimes were non-violent drug crimes, many of which were committed before their 18th birthdays. They are strong and able-bodied, and for that reason get decent jobs that they lose as soon as their background checks come back labeling them with the scarlet "F" for felon. When they cannot get or maintain quality employment because of the stigma of their youthful indiscretions, they often return to the one trade where their social and money-management skills are beneficial: the drug trade. By the time they come to me, most of them are facing decades of imprisonment. Many are bright, if poorly educated. While many have a blind spot to their role in the social ills that plague them, most have the capacity to love and care for their children and community. But most came from neighborhoods that had been decimated by drugs, violence, and the war against them, long before they were born. Does the current state of affairs mean that racist lawmakers intended for this to happen? For the most part, I think the answer is no. But does the current state of affairs have a devastating, racially disparate impact? I think the clear answer is yes.

I think that identifying the causes of the current problem is a valid pursuit, but we ought not focus so much on rooting out the culprits that we fail to have meaningful conversations about what do do rather than whom to blame.

Posted by: AFPD | Mar 8, 2012 11:59:35 AM

The fact that the policies were not deliberately racist, if we accept as a given, only takes us so far. We are dealing with policies here, not just judicial action. De facto is enough to be upsetting and in the end, negligence in this area is a form of racism. Ugly name calling isn't the solution either way.

The first comment notes Obama just be ashamed for "raids of medical marijuana clinics" and the appointment of a "nazi" drug czar. The question, one I raise each time that issue is cited per the Rolling Stones article, is why? Why did he do it? The Rolling Stone article noted that the policy against clinics significantly changed the first two years. Why the change in the third? And, the article notes that the targeting went too far, but not always. Sometimes, the clinics blatantly broke the rules. And, targeting suppliers is not the same as targeting users.

Posted by: Joe | Mar 8, 2012 2:27:24 PM

Why should people like Bill Otis, Nancy Pelosi, and John Boehner be able to tell me or any of you what substances we can and cannot ingest?

Should they be able to prohibit me and you from ingesting sugar? After all, it's really bad for us. Once they outlaw sugar consumption, should they be able to imprison those who unlawfully ingest it?

Where do you draw the line? Is it OK, in your book, for government to criminalize use of heroin and LSD, but not sugar and marijuana? Why should you or government get to draw these lines and make these decisions for me and other people. It should be a matter of individual choice. If I want to sit in my backyard and smoke opium, shouldn't I be able to do so without fear of Bill Otis storming onto my property armed and in a raid jacket? Prosecute me if I drive under the influence, but leave me alone if I peacefully consume mushrooms in my home. I'm better than the government at deciding what to put in my body. Do some of you think you need the government to babysit you in matters of this nature?

I am thoroughly disgusted by those who participate in imprisoning people for voluntarily ingesting substances.

Posted by: Calif. Capital Defense Counsel | Mar 8, 2012 3:34:26 PM

"But does the current state of affairs have a devastating, racially disparate impact? I think the clear answer is yes."

The problem is that we will never break the cycle so long as we treat only the symptoms (the impact) and not the underlying causes. The drug laws would have been repealed a long time ago if they had been implemented equitably between blacks and whites. But so long as white people could skate through the system relatively unscathed there was no incentive to deal with the issue. Even now the only incentive is "lets show the world we aren't racists" when in fact the problem exists in the first place precisely because we are.

And to be clear, I don't blame the prosecutors for this mess. The racial discrimination takes place before it ever gets to the prosecutor: it's the beat cops and detectives who are to blame. When they let the white frat boy in his Mercedes go because they know that daddy will raise a stink who is going to complain about it. I'll repeat. The racial disparity is not because too many black people are in prison but to few actually guilty white people are out of prison.

Posted by: Daniel | Mar 8, 2012 4:19:59 PM

"I am thoroughly disgusted by those who participate in imprisoning people for voluntarily ingesting substances."

Sure, sugar, hallucinogens, same thing. The line drawn should be when the substance endangers others enough to make it dangerous to allow it to be sold.

You are also "disgusted" by those who "participate." So, some officer on the street doesn't resign on principle, you are disgusted by them arresting someone who uses heroin. By the way, forcing people into treatment, including "imprisoning" them into treatment centers would count too.

This all/nothing bit is not going to help the victims here.

Posted by: Joe | Mar 8, 2012 4:21:11 PM

Joe:

You state: "The line drawn should be when the substance endangers others enough to make it dangerous to allow it to be sold."

That is about as comprehensible as this country's drug policy/war.

Posted by: Calif. Capital Defense Counsel | Mar 8, 2012 4:28:26 PM

AFPD --

I hope you will be posting here more often.

Posted by: Bill Otis | Mar 8, 2012 8:26:25 PM

Calif. Capital Defender, I'm don't know what to make of your comment.

For instance, various testing is required before medicine can be sold because the alternative is deemed dangerous. What amount of testing? Well, policy makers set forth various guidelines.

Is this a problem? If someone wants to purchase untested upon drugs that in various might lead to violent episodes that endangers others, is it a problem to not allow them to do so and in fact make it a crime for them to use such drugs?

Posted by: Joe | Mar 9, 2012 10:57:41 PM

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