Once you're labeled a felon, the old forms of discrimination––employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service––are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.
In some states, black men have been admitted to prison on drug charges at rates twenty to fifty times greater than those of white men. And in major cities wracked by the drug war, as many as 80 percent of young African American men now have criminal records and are thus subject to legalized discrimination for the rest of their lives. These young men are part of a growing undercaste, permanently locked up and locked out of mainstream society.
For me, the new caste system is now as obvious as my own face in the mirror. Like an optical illusion––one in which the embedded image is impossible to see until its outline is identified––the new caste system lurks invisibly within the maze of rationalizations we have developed for persistent racial inequality. It is possible––quite easy, in fact––never to see the embedded reality. Only after years of working on criminal justice reform did my own focus finally shift, and then the rigid caste system slowly came into view. Eventually it became obvious. Now it seems odd that I could not see it before.
The concept of race is a relatively recent development. 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.
It may be impossible to overstate the significance of race in defining the basic structure of American society. The structure and content of the original Constitution was based largely on the effort to preserve a racial caste system––slavery––while at the same time affording political and economic rights to whites, especially propertied whites.
Under the terms of our country's founding document, slaves were defined as three fifths of a man, not a real, whole human being. Upon this racist fiction rests the entire structure of American democracy.
Genuine equality for black people, King reasoned, demanded a radical restructuring of society, one that would address the needs of the black and white poor throughout the country. Shortly before his assassination, he envisioned bringing to Washington, D.C. thousands of the nation's disadvantaged, in an interracial alliance that embraced rural and ghetto blacks, Appalachian whites, Mexican Americans, Puerto Ricans, and Native Americans, to demand jobs and income––the right to live. In a speech delivered in 1968, King acknowledged there had been some progress for blacks since the passage of the Civil Rights Act of 1964, but insisted that the current challenges required even greater resolve and that the entire nation must be transformed for economic justice to be more than a dream for poor people of all colors.
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.”
Few legal rules meaningfully constrain the police in the War on Drugs. This may sound like an overstatement, but upon examination it proves accurate. The absence of significant constraints on the exercise of police discretion is a key feature of the drug war's design. It has made the roundup of millions of Americans for nonviolent drug offenses relatively easy.
Anyone driving more than a few blocks is likely to commit a traffic violation of some kind, such as failing to track properly between lanes, failing to stop at
precisely the correct distance behind a crosswalk, failing to pause for precisely the right amount of time at a stop sign, or failing to use a turn signal at the appropriate distance from an intersection. Allowing the police to use minor traffic violations as a pretext for baseless drug investigations would permit them to single out anyone for a drug investigation without any evidence of illegal drug activity whatsoever. That kind of arbitrary police conduct is precisely what the Fourth Amendment was intended to prohibit.
As legal scholar David Cole has observed, “in practice, the drug-courier profile is a scattershot hodgepodge of traits and characteristics so expansive that it potentially justifies stopping anybody and everybody.” The profile can include traveling with luggage, traveling without luggage, driving an expensive car, driving a car that needs repairs, driving with out-of-state license plates, driving a rental car, driving with “mismatched occupants,” acting too calm, acting too nervous, dressing casually, wearing expensive clothing or jewelry, being one of the first to deplane, being one of the last to deplane, deplaning in the middle, paying for a ticket in cash, using large-denomination currency, using small-denomination currency, traveling alone, traveling with a companion, and so on.
Property or cash could be seized based on mere suspicion of illegal drug activity, and the seizure could occur without notice or hearing, upon an ex parte showing of mere probable cause to believe that the property had somehow been “involved” in a crime. The probable cause showing could be based on nothing more than hearsay, innuendo, or even the paid, self-serving testimony of someone with interests clearly adverse to the property owner.
It is the genius of the new system of control that it can always be defended on nonracial grounds, given the rarity of a noose or a racial slur in connection with any particular criminal case. Moreover, because blacks and whites are almost never similarly situated (given extreme racial segregation in housing and disparate life experiences), trying to “control for race” in an effort to evaluate whether the mass incarceration of people of color is really about race or something else––anything else––is difficult.
Today a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave or a black person living “free” in Mississippi at the height of Jim Crow. Those released from prison on parole can be stopped and searched by the police for any reason––or no reason at all––and returned to prison for the most minor of infractions, such as failing to attend a meeting with a parole officer. Even when released from the system's formal control, the stigma of criminality lingers. Police supervision, monitoring, and harassment are facts of life not only for all those labeled criminals, but for all those who “look like” criminals. Lynch mobs may be long gone, but the threat of police violence is ever present. A wrong move or sudden gesture could mean massive retaliation by the police.
The churning of African Americans in and out of prisons today is hardly surprising, given the strong message that is sent to them that they are not wanted in mainstream society.
No other country in the world disenfranchises people who are released from prison in a manner even remotely resembling the United States. In fact, the United Nations Human Rights Committee has charged that U.S. disenfranchisement policies are discriminatory and violate international law.
One need not be formally convicted in a court of law to be subject to this shame and stigma. As long as you "look like" or "seem like" a criminal, you are treated with the same suspicion and contempt, not just by police, security guards, or hall monitors at your school, but also by the woman who crosses the street to avoid you and by the store employees who follow you through the aisles, eager to catch you in the act of being the “criminalblackman”––the archetypal figure who justifies the New Jim Crow.
Poor people of color, like other Americans––indeed like nearly everyone around the world––want safe streets, peaceful communities, healthy families, good jobs, and meaningful opportunities to contribute to society. The notion that ghetto families do not, in fact, want those things, and instead are perfectly content to live in crime-ridden communities, feeling no shame or regret about the fate of their young men is, quite simply, racist.
The clock has been turned back on racial progress in America, though scarcely anyone seems to notice. All eyes are fixed on people like Barack Obama and Oprah Winfrey, who have defied the odds and risen to power, fame, and fortune.
In ghetto communities, nearly everyone is either directly or indirectly subject to the new caste system. The system serves to redefine the terms of the relationship of poor people of color and their communities to mainstream, white society, ensuring their subordinate and marginal status. The criminal and civil sanctions that were once reserved for a tiny minority are now used to control and oppress a racially defined majority in many communities, and the systematic manner in which the control is achieved reflects not just a difference in scale. The nature of the criminal justice system has changed. It is no longer concerned primarily with the prevention and punishment of crime, but rather with the management and control of the dispossessed. Prior drug wars were ancillary to the prevailing caste system. This time the drug war is the system of control.
Who is more blameworthy: the young black kid who hustles on the street corner, selling weed to help his momma pay the rent? Or the college kid who deals drugs out of his dorm room so that he'll have cash to finance his spring break? Who should we fear? The kid in the ‘hood who joined a gang and now carries a gun for security, because his neighborhood is frightening and unsafe? Or the suburban high school student who has a drinking problem but keeps getting behind the wheel?
Colorblindness, though widely touted as the solution, is actually the problem... colorblindness has proved catastrophic for African Americans.