Over the past two decades, several astute commentators have observed that the contemporary American criminal-justice system seems like a revival of the old Jim Crow system of racial subordination in the South. It’s hard to deny that there are at least a few grains of truth to the analogy. African Americans have borne the brunt of the “war on crime” that was launched in this country in the late 1960’s and dramatically escalated in the 1980’s – a time period that also happened to coincide with major political backlashes against school desegregation, affirmative action, and other civil-rights initiatives that were intended to dismantle Jim Crow. Indeed, leaders of the same political party led the charge on both fronts, and, as illustrated by the infamous Willie Horton ad, were hardly above playing on racial fears in advancing their “tough-on-crime” positions. It is understandable that critics might see the mass incarceration of blacks, the related mass disenfranchisement of blacks, disproportionately high stop-and frisk rates for black males, and so forth as something other than merely the incidental byproducts of a crackdown on crime.
Now comes an interesting rejoinder from James Forman, Jr.: “Racial Critiques of Mass Incarceration: Beyond the New Jim Crow,” 87 N.Y.U. L. Rev. 21 (2012). Forman is perhaps a surprising critic of the “New Jim Crow” thesis, for he is an unabashed opponent of mass incarceration, and the Jim Crow analogy seems a rhetorically powerful way to challenge this phenomenon. In part, what seems to motivate his critique is the sense that a particular focus on black grievances may impede the emergence of a larger, more effective multiracial movement against mass incarceration.
Three of Forman’s points strike me as particularly interesting.
