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.
First, he argues that African Americans themselves seem generally supportive of tough-on-crime policies. If true, this would sharply distinguish New Jim Crow from Old. In support of the point, Forman cites public-opinion surveys and also points to Washington, D.C. Though not a state, majority-black D.C. has much the same power as a state to set its own sentencing laws and other criminal-justice policies. And the black-dominated political institutions of D.C. have not been immune from some of the same sorts of punitive policies adopted elsewhere in the country. Indeed, D.C. has a higher black incarceration rate than Detroit, another high-crime, majority-black city, even though the Motor City’s sentencing policies are set by a white-dominated state political system. Forman also notes the interesting fact that black activists in New York City were enthusiastic supporters of the notoriously harsh Rockefeller drug sentencing laws adopted in the 1970s.
Second, Forman criticizes the New Jim Crow theorists for focusing on drug crime and downplaying the significance of violent crime. Although there is good evidence that the war on drugs has been waged in unjustifiable, racially disparate ways, there do seem to be genuine differences in the propensities of blacks and whites to commit violent crimes, and these differences may provide a good justification for at least some of the observed racial disparities in prison populations. Forman hedges on this point, but suggests that there is at least a need for more of a conversation about the proper responses to violence in black communities – a conversation that the New Jim Crow theorists seem to want to avoid.
Finally, Forman argues that the New Jim Crow theorists are obscuring the role of class in the criminal-system. Indeed, some evidence suggests that class disparities may be more significant than racial disparities. Notably, the war on crime has not escalated incarceration rates for all black men; those with college education have actually seen their chances of going to prison decrease since the 1970s. Forman notes that the black middle class has grown considerably in size since the Old Jim Crow era, and that this group has managed to avoid some of the negative effects that the war on crime has had on lower-class blacks. Meanwhile, incarceration risks for whites without college education have grown considerably since the 1960s, and even states without appreciable black populations have joined the war on crime with gusto.
I think that all of Forman’s points are well-taken, but it also strikes me that the New Jim Crow analogy has enough truth to it to make it a worthy topic of discussion. As Forman’s own article demonstrates, there is much that can be gained by thinking carefully about the similarities and differences between Old and New Jim Crow. As for political effectiveness, I suppose time will tell. But it’s hard for me to see how a thoughtful conversation about the particular effects of the war on crime in black communities necessarily crowds out the development of other sorts of critiques focusing on other groups. Indeed, the reverse may happen. One group of concern to Forman, for instance, is Hispanics, who are also incarcerated at rates disproportionate to their numbers. Hispanics may be turned off by the New Jim Crow analogy, but they might instead be prompted by the analogy to reflect on the continuities in their own experience between historic discrimination and contemporary law enforcement practices. The Jim Crow analogy might thereby contribute to, not detract from, the formation of a multiracial movement against mass incarceration.