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School of Business and Social Sciences, Aarhus Universitet
Rikke Berg Thomsen, 303054
Bachelor Afhandling Maj 2014
Mass Incarceration: A Study of Racial Discrimination
within the American Justice System
By Rikke Berg Thomsen
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School of Business and Social Sciences, Aarhus Universitet
Rikke Berg Thomsen, 303054
Bachelor Afhandling Maj 2014
Abstract
The United States of America has the highest incarceration rate in the world. This has created the
term mass incarceration, which is a big problem with many consequences. These consequences are
not only economic but societal as well. The problem of mass incarceration is of vast concern to
many scholars, and many of these fight to create awareness of this problem. One of these scholars is
Michelle Alexander who has written a book called The New Jim Crow. This book gives an account
of the origin of mass incarceration and why it has become such a big problem in America.
Alexander argues that mass incarceration is a result of the War on Drugs and the continuous
discrimination of African Americans within the American justice system. She furthermore argues
that the justice system has created an undercaste, like the one under Jim Crow, not only consisting
of African Americans, but of all ex-felons. This thesis examines whether there is a link between
race and mass incarceration in the prisons of America and whether discrimination exists within the
American justice system, as Michelle Alexander argues in The New Jim Crow. To answer this
problem statement, an overview of African American history, the justice system and policing will
be given. Moreover, theories of mass incarceration will be accounted for. In this section scholars
such as James Forman and Marc Mauer will be introduced. These scholars plus other scholars are
then used in the analysis to analyze Alexander‘s arguments. The analysis will review and discuss
The New Jim Crow. Alexander‘s arguments will then be analyzed within four different topics.
These topics are: policing, prosecutor power, re-entering society as a felon, and the public‘s
ignorance and denial towards the problem of mass incarceration and discrimination. This is done
by examining the works of other scholars who study mass incarceration and discrimination. The
analysis reveals that the arguments in The New Jim Crow are based exclusively on drug related
crimes and offenders, which give an inaccurate image of the origin of mass incarceration. An
important factor to mention is violent crime which according to Forman has played an important
role in the origin of mass incarceration. Furthermore, the analysis reveals that racial discrimination
does exist within the American justice system, and that poor black people are targeted by the police.
The analysis also reveals that the people, who are discriminated against the most, are ex-felons. All
the scholars used in this thesis agree that the American justice system should spend their resources
on rehabilitation in preference to building more prisons.
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Table of content
1. Introduction and problem statement ................................................................................................ 5
1.1. Method and structure ................................................................................................................. 6
2. History of African Americans in the US .......................................................................................... 7
3. The American justice system and policing ...................................................................................... 8
4. Theory .............................................................................................................................................. 9
4.1. Theories of mass incarceration .................................................................................................. 9
4.2. Michelle Alexander‘s arguments............................................................................................. 10
4.2.1. Policing ............................................................................................................................. 10
4.2.2. Prosecution and plea bargaining ....................................................................................... 11
4.2.3. Consequences of signing a plea bargain ........................................................................... 12
4.2.4. Re-entering society ........................................................................................................... 13
4.2.5. Public ignorance and denial .............................................................................................. 15
4.3. Critical Race Theory ............................................................................................................... 15
5. Analysis .......................................................................................................................................... 16
5.1. Review and discussion of The New Jim Crow ........................................................................ 16
5.2. Policing.................................................................................................................................... 21
5.3. Prosecutor power ..................................................................................................................... 23
5.4. Re-entering society .................................................................................................................. 24
5.5. Public ignorance and denial .................................................................................................... 26
6. Conclusion ..................................................................................................................................... 27
7. List of References .......................................................................................................................... 29
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Rikke Berg Thomsen, 303054
Bachelor Afhandling Maj 2014
1. Introduction and problem statement
In 2011 the US had the highest incarceration rate in the world. It was 716 people per 100,000
people. Furthermore, between 2000 and 2012, the number of people incarcerated in state and
federal prison increased by 13 % (The Sentencing Project, 2014). The American population makes
up 5 % of the world‘s population, and its prison population makes up 25 % of the world‘s prison
population (NAACP). These numbers suggest that mass incarceration is a growing problem in the
US today. The consequences are not just economic, but also societal. Furthermore, in 2011, 93 % of
the prison population was male and 38 % of people in prison were black and 35 % were white (The
Sentencing Project, 2014). The number of black people in state and federal prisons is disturbingly
high compared to the percentage of black people living in the US, which is only about 14 % of the
total American population (Alexander, 2010).
These numbers prompt a number of questions, which scholars have sought to answer. One of these
scholars is Michelle Alexander, who has written a book on mass incarceration and discrimination
within the American justice system. This book is called The New Jim Crow and it has received a lot
of attention from the public and the media, both positive and negative, because of its very blunt and
provocative arguments (Osel, 2012). This book is one of the most recent books on the subject of
race and mass incarceration and it is thus very relevant in this thesis, when examining the
relationship between race and mass incarceration, and discussing whether discrimination exists
within the American justice system.
Alexander‘s main argument is that black people are highly discriminated against in the American
justice system today. Not only are they discriminated against in court, but also on the streets before
they are even arrested (Alexander, 2010). In The New Jim Crow Alexander gives a detailed
description of how all parts of law enforcement agencies and the court systems act in a
discriminatory fashion, not only towards black people, but all minority groups (Alexander, 2010).
This thesis will only examine the aspect of discrimination against African Americans since it is the
largest minority group represented in prison today.
Furthermore, Alexander argues that the problem of mass incarceration only exists because of the
discriminatory prejudices of law enforcement agencies and the justice system, and that black people
are arrested in massive numbers on small accusations (Alexander, 2010).
Alexander‘s book makes a good foundation for discussion, and we thus have to ask:
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Is there a link between race and mass incarceration in the prisons of the United States of America,
and does discrimination exist within the American justice system as Michelle Alexander argues in
her book The New Jim Crow?
1.1. Method and structure
This thesis consists of different chapters that all aim to answer the problem statement. The first
chapter contains a brief historical overview of African American history from slavery to today‘s
overrepresentation of them in American prisons. The second chapter gives a short account of the
American justice system, policing and the development in incarceration rates over the past thirty
years. The third chapter introduces the term mass incarceration, and gives a few different theoretical
perspectives on how mass incarceration became a large problem for American society. This chapter
furthermore introduces a few of the scholars whose works will be used in the analysis. It will
provide an overview of the theoretical literature on this issue, giving the reader an understanding of
the various perspectives on incarceration as a political, social and legal issue. As well as a
foundation for the discussion of Alexander‘s book and what it brings to this debate. These first
three chapters aim to provide the reader of this thesis with a general basis for understanding the
analysis of this thesis. The fourth chapter gives an account of Michelle Alexander‘s main
arguments, which will form the basis of the analysis. This chapter is fundamental to the fifth
chapter, which is the analysis, where Alexander‘s arguments will be discussed and analyzed by
including other authorities on the subject, and using their arguments to determine whether
Alexander‘s arguments reveal important truths about the contentious issue of mass incarceration
and discrimination. Lastly, a conclusion will be given where the results of the analysis will be
summarized and the problem statement will be answered.
Since this is a literature-based thesis, the analysis will rely mainly on books on mass incarceration
and discrimination, and other publications from authors who are considered experts on the subject.
The arguments in The New Jim Crow are the main theory that the analysis will be based on and they
are the arguments that will be discussed. Thus it is important to mention that The New Jim Crow is
a work of advocacy and therefore should be read and reviewed very critically. Many people view
Alexander as an expert on the subject (Osel, 2012), and her arguments will form a good basis for
the analysis and discussion of this thesis. The other scholars presented in this thesis are, like
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Bachelor Afhandling Maj 2014
Alexander, influenced by their own views on mass incarceration and discrimination. Thus their
publications cannot be considered completely objective. However their arguments will be very
useful in the analysis and discussion of mass incarceration and discrimination. These scholars are
drawn on because they have been present in the forum of mass incarceration and discrimination for
a long time, and can thus be viewed as reliable sources.
2. History of African Americans in the US
From 1619 to 1865, the criminal law and procedures were full of slave codes which were codes
made to regulate slave life and prescribe the social boundaries for slaves (African Americans made
up the majority of slaves) (Russell-Brown, 2009). For African Americans, the Civil War came as a
needed change along with the adoption of the Thirteenth Amendment in 1865, which abolished
slavery. Furthermore, the Fifteenth Amendment was adopted in 1869, allowing all citizens to vote
regardless of race, color or previous experience of being a slave (Tuck, 2010). This was supposed
to be the end of black suppression, but even though the Constitution now allowed black people to
vote, many states found other ways to keep black people from voting and it was not until the 1960s
that black people were allowed to vote in all states of America (Tuck, 2010). In the years following
the abolition of slavery, a number of new black codes were enacted. These codes, for instance,
allowed black people to get married legally, but they also allowed that black people could be
arrested for not having a job. These laws made sure that black people would stay suppressed by
whites (Tuck, 2010).
In the beginning of the 20th century, the Jim Crow segregation statutes were introduced. These
statutes became known as Jim Crow in the early 1900s, but had existed for a while before they
became known as Jim Crow, just not in the same extent. Jim Crow was a set of laws that mandated
separate public facilities for blacks and whites. Jim Crow was introduced to give the impression that
black people were treated as equals to white people, but the reality was a different one. Jim Crow
laws secured white and black segregation by creating separate schools, institutions and restaurants
for black people. These facilities were all in much worse condition than the facilities for white
people (Russell-Brown, 2009).
Black people did not want to accept this suppression and segregation. Thus a number of human
rights advocates appeared, who demanded that black people should have access to facilities of the
same standards as whites. One of these advocates was Martin Luther King who changed a lot of
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people‘s attitude towards black people, before he was killed in 1968 (Russell-Brown, 2009). Along
with the many human rights advocates came a large number of demonstrations all over the United
States, where black people demanded equal treatment and opportunities as whites.
In 1971, President Nixon declared a war on drugs. He increased the presence of federal drug control
agencies and introduced mandatory sentencing (Drug Policy Alliance, n.d.). When Reagan was
elected President, incarceration rates increased dramatically due to his expansion of the drug war.
He furthermore introduced harder sentencing for crack cocaine offenders (which were mostly black
people) than powder cocaine offenders (which were mostly white people) (Drug Policy Alliance,
n.d.). The current War on Drugs, as described in this thesis, is a result of these events combined
with President Clinton‘s further expansion of the War on Drugs and his tough on crime policies,
such as minimum sentencing for non-violent drug offenders (Alexander, 2010).
In 2008, Barack Obama, an African American man, was elected President of the United States of
America. His election would lead many people to believe that Americans now live in a post-racial
society.
3. The American justice system and policing
The American justice system consists of two court systems, which are the federal court system and
the state court system. They are each concerned with certain types of cases, but they often interact
and they are not completely independent of the other. The U.S. Constitution is the foundation of the
justice system, and it gives specific powers to the federal government, and the rest remains with the
states. The federal court system deals with cases involving federal laws, and the state court system
deals with most family law matters, such as divorce cases (Federal Judicial Center, n.d.). The
federal court system consists of The Supreme Court and two levels of federal courts below the
Supreme Court. These two levels are the U.S. district courts and the U.S. circuit courts of appeals.
The district courts are the first court a case will be brought to within the federal court system
(Federal Judicial Center, n.d.). If there is any appeal to the verdict in the district courts, the case will
be brought to the circuit courts of appeal, and if a case is still undetermined or there is any reason to
doubt the verdict in the circuit courts of appeal, the case will be brought to the Supreme Court,
which is the highest court in the American legal system. Both the state courts and the federal courts
deal with criminal cases which usually involve violence or drugs (Federal Judicial Center, n.d.).
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Criminal cases involving drugs are the type of cases examined in this thesis, as these cases often
involve black people (Alexander, 2010).
When the police carry out actions to preserve law and order, it is called policing (Russell-Brown,
2004). This term though, has a negative meaning to a lot of people, especially black people.
Policing is often associated with police brutality and racial profiling where the majority of the
victims are black. Racially biased policing exists when the police target a specific racial stereotype,
such as African American men, when looking for drug offenders for instance. Thus many scholars,
including Russell-Brown and Alexander, describe policing as a negative thing because they believe
that police target certain types of people, and that this leads to the problem of mass incarceration.
The term mass incarceration originates from the fact that the U.S. has the highest number of
incarcerated people in the world. Approximately 2.2 million people are currently incarcerated either
in prison or jail, which is an increase of 500 % over the past 30 years (The Sentencing Project, n.d.).
This massive explosion of the prison population has resulted in overcrowding in prisons, and state
governments are in need of funds to rapidly expand the penal system (The Sentencing Project, n.d.).
4. Theory
4.1. Theories of mass incarceration
There are a lot of theories of when and how mass incarceration became an important phenomenon.
One of the organizations that have created awareness about mass incarceration and inequities in the
criminal justice system is The Sentencing Project. Founded in 1986, the Sentencing Project works
to change people‘s attitude towards crime and punishment. A key argument is that black men are
imprisoned at much higher rates than white men due to the War on Drugs and the discrimination
against black drug offenders (The Sentencing Project, n.d.). The Sentencing Project wanted to
provide defense lawyers with sentencing advocacy training with the hope to reduce the high
incarceration rates of the prison boom that started during the early 1970s and still continues today
(The Sentencing Project, n.d.). The executive director of The Sentencing Project, Marc Mauer, is
one of the leading experts on the topic of mass incarceration (The Sentencing Project, n.d.). Mauer
obviously shares the general view of The Sentencing Project and he elaborates on what he believes
are the reasons for mass incarceration. Mauer argues that the War on Drugs played a large part in
the origins of mass incarceration. He argues that the policies that came from the War on Drugs are
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the main contributors to mass incarceration and that this ―far outweighs any change in crime rates as
a contributing factor‖ (Mauer, 2001: 6). Thus Mauer blames the War on Drugs, not for creating
mass incarceration, but for creating the policies that contribute to mass incarceration such as the
tough on crime policies, mandatory sentencing and the emergence of private corrections (Mauer,
2001).
James Forman has also written extensively on mass incarceration and discrimination within the
American justice system. As a Clinical Professor of Law at Yale Law School, Foreman believes
that the rise in crime (especially violent crime) between the mid 1960s and the mid 1970s played a
significant role in the origin of mass incarceration and that the War on Drugs is only one in many
contributing factors in the birth of mass incarceration (Forman, 2012). Furthermore, Forman has
been very active in the discussion of mass incarceration and discrimination against black people. He
believes that black people are disproportionately being arrested and convicted of drug offenses.
However, he stresses that in the discussion of mass incarceration, one cannot rely solely on the
statistics of drug offenses. He argues that violent crime has had a big influence on mass
incarceration, and that black people are not being targeted for violent offenses as they are for drug
offenses (Forman, 2012).
Michelle Alexander shares many of the arguments of Marc Mauer. The New Jim Crow argues that
mass incarceration is a result of the War on Drugs which targeted African Americans and still does
today (Alexander, 2010). These arguments will be accounted for in the following chapter of this
thesis.
4.2. Michelle Alexander’s arguments
Michelle Alexander is an African American civil rights lawyer, an advocate, and a legal scholar.
She has taught at a number of different universities, including Stanford Law School, where she was
an associate professor of law (Alexander, 2010). She is a graduate at Stanford Law School herself,
and has always been very active in the discussion about race and discrimination. Alexander began
writing The New Jim Crow, because she wanted to create awareness about the problem of mass
incarceration and discrimination in the American justice system (Alexander, 2010).
4.2.1. Policing
Alexander argues that black people are targeted disproportionately in policing. Police have a very
high level of discretion when it comes to drug-law enforcement. They have discretion regarding
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which people to target and where to target (Alexander, 2010). Alexander argues that this racially
biased police discretion is a very important factor when it comes to understanding why so many
black people are being arrested and sent to prison in the War on Drugs.
When the police decide where to target their drug raids, they are more likely to choose
impoverished urban areas. When carrying out their actions in these areas, the risk of a political
backlash is much lower, than if they had targeted a white suburban community, according to
Alexander. The fact that illegal drug activity takes place in white suburban areas at the same rate as
in poor black communities does not seem to make a difference (Alexander, 2010). Sociologists have
pointed out that access to private space, such as a private room for you in the house you live in, has
big influence on who will get stopped and searched (Alexander, 2010). Black people in poor
communities do not have access to a lot of private space, meaning that they share their home with
many other people, and are not able to do their ―negotiations‖ behind closed doors. This means that
they are forced to spend a lot of time on the streets, whereas middleclass white people usually do
their ―negotiations‖ inside behind closed curtains. Alexander argues that this makes it much easier
for the police to target poor black people, because it does not take the same amount of work to catch
people engaging in illegal drug activity on the streets, as it does to bust into someone‘s house and
hopefully catch them in the act of illegal drug activity (Alexander, 2010).
As mentioned earlier, Alexander says that the Supreme Court has allowed police to discriminate.
―The Supreme Court has indicated that in policing, race can be used as a factor in discretionary
decision making.‖ (Alexander, 2010: 128) The Supreme Court has authorized police to use race as a
factor when stopping and searching people (Alexander, 2010). But according to Alexander, they
believe that racial profiling only exists when race is the only factor that a person is being stopped
and it does not exist if race is just one of more factors. These other factors can be things like age,
gender, and location, which means that race is almost never the only factor, it is just the deciding
factor. Thus Alexander argues that it is almost impossible to prove racially biased policing
(Alexander, 2010).
4.2.2. Prosecution and plea bargaining
When entering the criminal justice system, black people meet their first obstacle, which is the
prosecutor. Prosecutors have the most power in the criminal justice system. They can file as many
charges against a defendant as they want, as ―long as probable cause arguably exists‖ (Alexander,
2010: 112).They can also transfer drug defendants to the federal system where the penalties are far
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more severe than in state systems. Prosecutors decide how good a plea deal is offered to the
defendant (Alexander, 2010).
Furthermore, a study carried out by San Jose Mercury News ―reviewed 700,000 criminal cases that
were matched by crime and criminal history of the defendant‖ (Plea Bargaining Favors Whites, as
Blacks, Hispanics Pay Price, as cited in Alexander, 2010: 115). The study showed that white
defendants who were charged with a similar crime and had similar crime history as black
defendants were much more successful in the plea bargaining process and in almost all other stages
of pretrial negotiation. In the case of juveniles, young black people are far more likely to be arrested
and transferred to adult court than young white people (Alexander, 2010). ―African American youth
account for 16 % of all youth, 28 % of all juvenile arrests, 35 % of the youth waived to adult
criminal court, and 58 % of youth admitted to state adult prison‖ (Alexander, 2010: 115).
Alexander argues that when tried in court, black people are mostly tried by an all white jury, which
can have a negative impact on the verdict. One of the reasons that many juries are all white, she
says, is that 31 states and the federal government exclude felons from serving as a juror the rest of
their lives, and a result of this is that 30 % of black men are banned from jury service for life.
Moreover, prosecutors have the power to strike black jurors from juries if they can come up with a
non-racially biased explanation for why that person should not serve as a juror. These explanations
can be as simple as, the juror is too young, too old, to conservative, too liberal, too comfortable, too
uncomfortable, or even the clothes they wear can get them eliminated from the jury (Alexander,
2010).
4.2.3. Consequences of signing a plea bargain
Most criminal defendants who accept ―generous‖ plea bargains to reduce their sentences, are most
likely not aware of what they are agreeing to. Even though the defendant will receive a reduced
sentence or punishment for signing a plea bargain, he is not told of the consequences that comes
with pleading guilty and being registered as a felon. When felons re-enter society after completing
their sentence they are discriminated against in a way similar to the way blacks were discriminated
against during the period of the Jim Crow laws (Alexander, 2010). When signing a plea bargain,
most defendants are not aware that they might be excluded from ever serving as a juror, or they
might even lose their right to vote. These are two of the most fundamental rights that a person can
have in modern day American democracy, but that is not all, Alexander argues. When registered a
felon, you are also banned from receiving food stamps, living in public housing. Furthermore, it is
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near to impossible to get a proper paying job when your criminal record is not clean. So for many
felons it is very difficult, if not impossible, to re-enter society and escape prison for the rest of their
lives (Alexander, 2010).
Moreover, if you have been sentenced to parole or probation you are most likely to end up in prison
again within the first year of your parole or probation time. This is because you will be subject to
countless searches by law enforcement, and if you violate any of the conditions of your probation or
parole, you will be sent back to prison. Alexander argues that many of these consequences are
unknown to the defendants who agree to sign a plea bargain. Even when they are innocent, some
people sign a plea bargain in fear that they might receive an even worse sentence if they cannot
prove their innocence in court (Alexander, 2010). Furthermore, many defendants cannot afford a
long and costly case or proper legal representation and for them the only way to avoid this, is to
sign a plea bargain, even if they are innocent, says Alexander. The problem here, Alexander argues,
is that when excluding felons from society they will probably end up in prison again putting more
pressure on the existing problem of mass incarceration, and the more people who are in prison, the
more expensive it is for the government and the people who pay taxes to have them there
(Alexander, 2010).
4.2.4. Re-entering society
Even though black people are discriminated against in the criminal justice system, white felons also
suffer when trying to enter the job market, argues Alexander.
Alexander argues that there are no rules or laws that prohibit discrimination against ex-felons in the
job market. Because of this, as mentioned earlier, it is almost impossible for ex-felons to get a job.
One of the conditions of a parole or probation usually is that the ex-felon must find a job within a
certain amount of time. If they fail to do so, they will be sent back to prison which once again
means that most ex-felons go back to prison within the first year of their probation or parole
(Alexander, 2010). Moreover, if you have ever been arrested but not convicted of a crime, you are
also very likely to be discriminated against in the job market. Only ten states have laws that
―prohibit all employers and licensing agencies from considering arrests‖ (Alexander, 2010: 146)
and only three states have laws that ―prohibit some employers and occupational and licensing
agencies from doing so‖ (Alexander, 2010: 146). Jobs such as dog-catcher, bus driver or Burger
King cashier are jobs that ex-felons might apply for, since it is jobs where few or no skills are
required. But even in such jobs, Alexander argues, it is hard for an ex-felon to even get an interview
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because they have checked yes in the box on the application that asks if they have ever been
arrested or convicted of a crime. A survey showed that 90 % of employers will consider hiring a
welfare recipient, but only 40 will consider hiring an ex-offender (Employment of Ex-Offenders: A
Survey of Employers’ Policies and Practices, as cited in Alexander, 2010). In addition, ex-felons
who hope to be self-employed, for example by becoming a hairdresser, gardener, or manicurist,
might be denied a professional license on the ground that they have a criminal record even though
the crime they have been arrested or convicted for will have no effect on their ability to do a good
job in their chosen profession (Alexander, 2010).
Alexander argues that ex-felons have the best opportunities of finding jobs within construction or
manufacturing because these jobs do not require a lot of customer contact. The only problem here is
that today, due to globalization and deindustrialization, it is near to impossible for ex-felons to find
work here as well because manufacturing jobs have disappeared from the urban core during the past
thirty years (Alexander, 2010). Many felons are financially burdened when they are released from
prison, and thus cannot afford to spend a lot of money on transportation to and from work
(Alexander, 2010). Since the few manufacturing jobs that are available are mostly located in
industrial areas away from the communities, ex-felons have to find a way to get to and from work in
order to get a job and in most cases, the cost of transportation and other bills exceeds their monthly
paycheck from work (Alexander, 2010).
Alexander argues that the few ex-felons who are lucky enough to find a decent job that pays
enough, and is fairly close to their residence, still have not escaped the consequences of having been
convicted of a crime or spent time in prison. Many ex-offenders are burdened with large debts due
to the fact that they might have to make payments to a host of agencies, such as probation
departments, courts, and child-support enforcement officers, and in some jurisdictions ex-offenders
have to pay for drug testing and the drug treatment they are supposed to receive as a condition of
their parole (Alexander, 2010). If the ex-offender is not able to pay the fines and expenses right
away, they might be sent back to prison (Alexander, 2010).
In the case of black ex-felons it is even worse, continues Alexander. ―Not only are African
Americans far more likely to be labeled criminals, they are also more strongly affected by the
stigma of a criminal record. Black men convicted of felonies are the least likely to receive job offers
of any demographic group, and suburban employers are the most unwilling to hire them.‖
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(Alexander, 2010: 148). Almost one-third of young black men in the US are unemployed
(Alexander, 2010).
4.2.5. Public ignorance and denial
The fact that most people ignore what they cannot see is one of the problems with the justice system
in the United States according to Alexander. The system is made so that from the outside it looks as
if no discrimination is taking place because we have all of these laws saying that we are all equal,
and that racial discrimination is an unconstitutional action (Alexander, 2010).
Alexander argues that the civil rights community and the general public‘s collective denial is part of
the problem when it comes to changing the attitude towards black people being discriminated
against in the American justice system. Alexander explains that civil rights advocates are not
indifferent to racial bias in the criminal justice system, and have in recent years launched important
reforms in regards to challenging felon disenfranchisement laws, crack-sentencing policies and
racial profiling by law enforcement. But despite these efforts, the civil rights community has been
relatively quiet when it comes to the problem of mass incarceration (Alexander, 2010). Alexander
says that if the War on Drugs had been top priority to the civil rights advocates, they would have
held strategy sessions, and debates on how they could best destroy the new caste system. The civil
rights community is better funded than ever, and Alexander believes that the general public
consensus on race affects everyone, including the civil rights advocates. No person can be
completely immune to the racial stereotypes that are portrayed in the media every single day, and as
a black woman and civil rights advocate, Alexander adds: ―Like most people, we tend to resist
believing that we might be part of the problem.‖ (Alexander, 2010: 212). Alexander argues that to
end mass incarceration and racial discrimination within the justice system, it is important to inform
people of the problem, and to find a way to change people‘s attitude towards black people
(Alexander, 2010).
4.3. Critical Race Theory
Some scholars who study race and discrimination support the study of critical race theory. The
study of critical race theory began in the period after the Civil Rights Movement because scholars
believed that the reconstruction of that era had failed to end racism. One of the main concerns to
these scholars is the US Supreme Court‘s jurisprudence of race, and the fact that the state should
ideally be colorblind. In America today, it is widely accepted that racism should be eliminated, and
that the law has moral obligations to ensure that no racist acts are committed against a member of a
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minority group, and provide a fair trial for people who have been racially discriminated against.
People who study and associate themselves with critical race theory often believe that racism is
prevalent in American society, and that the law sometimes facilitates racism (Harris, 2012).
Furthermore, they argue that people have to accept that racism can never really be eliminated from
American society, and challenging it is going to be a long and hard struggle for civil rights activist.
Derrick Bell, who was a professor of law and worked to dismantle the relics of Jim Crow (Bell,
2011), ―has urged civil rights activists to accept that, although there is a moral duty to challenge
racism, racism is a permanent feature of American society‖ (Harris, 2012: 7). However, other
scholars influenced by critical race theory believe that there is still hope that antidiscrimination law
can function as a tool against racism (Harris, 2012).
5. Analysis
5.1. Review and discussion of The New Jim Crow
Joseph D. Osel is a research sociologist, writer and editor (Osel, 2012), who has written two critical
reviews on The New Jim Crow that have given some very good arguments to the discussion of mass
incarceration and discrimination.
At first Osel thought that Alexander‘s stand-alone statements were ―accurate, important and worthy
of discussion‖ (Osel, 2012: 1), but he has a problem with the context in which they are being used.
Osel agrees with Alexander‘s statement that mass incarceration should be of massive concern to the
government, and that it is highly influenced by the current political, economic and societal situation.
His negative attitude towards The New Jim Crow is rooted in the fact that he thinks that the
seriousness of the problem of mass incarceration is being misled by Alexander. He believes that she
is highlighting the wrong problems, and he is deeply concerned with the fact that this book has such
success among students and other scholars when it focuses on the wrong problems. He argues that
Alexander‘s book is missing the voices of the people who are most concerned with the problem,
such as other advocates, and the (black) people who are under the control of the American justice
system. In other words, Alexander does not back up her claims with the voices of the people who
actually matter in this discussion (Osel, 2012).
The book has been praised because of its new and provocative view on mass incarceration and
discrimination in the American justice system. People are reading the book with enthusiasm and
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they have no problem agreeing with Alexander‘s statements. However, Osel believes that
Alexander‘s arguments and statements have all been heard before, and thus does not deserve the
praise that the book is getting. If this is true, why do people believe that this information presented
by Alexander is new? Osel argues that ―the entire book operates on a falsehood designed to
massage the reader‘s ―enlightened‖ sense of self‖ (Osel, 2012).
One of the reasons people agree with Alexander could be that she has written the book in a very
subjective language. When reading the book, it is easy to understand how so many people are
convinced by her arguments that mass incarceration is a big problem caused by discrimination
against black people in the justice system, as well as discrimination of ex-felons in society.
―We have not ended racial caste in America; we have merely redesigned it.‖ (Alexander, 2010: 2).
This statement is an example of the fact that Alexander does not have a problem with criticizing the
American society. People have a tendency to either agree or disagree strongly with statements that
are provocative in some sort, such as the previous statement. These statements and strong language
are used throughout the entire book, and it seems like a conscious choice to use a language such as
this, because it is sure to raise awareness, and thus attract more readers. As an opponent of mass
incarceration and racial discrimination, it is very easy to agree with all of Alexander‘s arguments.
She has done a lot of research and backs up all of her arguments with statistical facts and historical
examples of discrimination and racial bias.
In the preface of The New Jim Crow, Alexander says that it is not for everyone. The book is
intended for people who ―care deeply about racial justice but who […] do not yet appreciate the
magnitude of the crisis faced by communities of color as a result of mass incarceration‖ (Alexander,
2010). Additionally, she has written the book for people who have tried to persuade their families,
friends, co-workers etc. that there is something very wrong about the way the justice system works,
but who have lacked the data and facts to back up their claims. With this announcement, Alexander
says that the book is for people who already agree with her, or for people who do not know much
about the subject and are looking to learn more. Thus these people could (and some do, (Osel,
2012)) see the book as a Bible on the topic of mass incarceration and racial injustice. Most people
who do not know much about this issue, lack the ability to read the book critically, and therefore are
more likely to agree with all of Alexander‘s statements and arguments. People who already agree
with her, will read the book agreeing with Alexander, while finding arguments that they can use
when trying to persuade other people to agree with them. This is worrying to Osel, since he does not
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believe that The New Jim Crow paints an accurate picture of mass incarceration and the justice
system (Osel, 2012).
Osel says that ―The New Jim Crow is a book about a modern American ―caste system‖ without a
single reference to the modern economic paradigm.‖ (Osel, 2012). Moreover, he says that it should
be read ―as a protest which allows its readers to vent their outrage about the ―caste
system‖ of mass incarceration while simultaneously minimizing actual disruption of the system,
personal
responsibility
and
sacrifice—that
is,
maximizing
personal
comfort
through
counterrevolutionary protest—a protest whose actual operational function is to make sure nothing
really changes‖ and he argues that ―The New Jim Crow… sadly is a book that happily implies the
annihilation of its own thesis‖ (Osel, 2012).
When reading the book, it is easy to get caught in Alexander‘s ―web‖ of persuasive arguments and
it is thus important to remain critical when reading The New Jim Crow so that you do not rely
entirely on her arguments, but rather see them as a basis for further discussion. The book only
reflects one in many views on mass incarceration and discrimination. Osel‘s reviews of The New
Jim Crow help the reader remain critical of the arguments, without obliterating Alexander‘s
credibility.
Another reason people would agree with Alexander, is the fact that she has focused mainly on drug
offenders and drug related crimes, which is the area where the majority of black people are arrested
(Forman, 2012). Thus she has a lot of statistics to back up her arguments that black people are
discriminated against in the justice system. When looking at an area in the criminal justice system
that focuses mainly on fighting drug related crimes in poor black neighborhoods, one can only see
that part of the system where blacks are arrested at higher rates than whites. Most of Alexander‘s
arguments that the justice system is racially biased are based on examples of cases involving drug
offenses. If she had focused on a different area of crime and offenders, different results might have
come up, and her arguments might not have been as persuasive as they seem to be now.
In his article Racial Critiques of mass incarceration: Beyond the new Jim Crow, James Forman
critiques not only Michelle Alexander, but the general view that mass incarceration is a result of the
War on Drugs. He refers to this phenomenon as the Jim Crow analogy (Forman, 2012).
Forman critiques the Jim Crow analogy for focusing mainly on drug offenders and minimizing the
role that violent crimes played in the prison boom and mass incarceration. Alexander argues that
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mass incarceration is a result of the War on Drugs and the targeting of black people in poor
communities. She furthermore argues that the current system does not prevent crime, but causes
more crime. America has the lowest crime rates in years, but the incarceration rate is at its highest.
Imprisonment is what tears apart families and societies, and creates a permanent class of
unemployables (Alexander, 2010). Many people believe that poverty and joblessness leads to crime,
but Alexander argues that ―the War on Drugs is the major cause of poverty, chronic unemployment,
broken families, and crime today‖ (Alexander, 2010: 224). She believes that it is a system of social
control, specifically racial control. Forman however argues that crime increased dramatically just
before the prison boom began: ―Reported street crime quadrupled in the twelve years from 1959 to
1971. Homicide rates doubled between 1963 and 1974, and robbery rates tripled.‖ (Forman, 2012:
114) These numbers suggest that it was in fact not the War on Drugs that was the sole contributor to
mass incarceration, but that violent crime in fact did increase and thus so did the prison population.
Felons convicted of violent crimes make up one-half of the state prison population in the United
States (Forman, 2012), and are thus very important to include in the discussion of mass
incarceration. Felons convicted of drug related crimes only make up about 20 % of the state prison
population. It is however worth mentioning that felons convicted of drug related crimes make up
about 52 % of the federal prison population, even though federal prisons hold many fewer people
than state prisons (Forman, 2012). In the case of drug offenses, the rates are almost the same for
white people and black people. However, with the rates for violent crimes, black people are
overrepresented: ―The African American arrest rate for murder is seven to eight times higher than
the white arrest rate; the black arrest rate for robbery is ten times higher than the white arrest rate.―
(Forman, 2012: 125). Violent crime offenders are overwhelmingly black, which is a big reason for
why the incarceration rate for black people is so high compared to white people, considering that
black people do not make up as big a part of the population as white people do. Forman argues that
the problem with the New Jim Crow analogy is that it frames mass incarceration as a new form of
Jim Crow, and does not include all the contributing factors to mass incarceration. This, he argues,
leads to an unsatisfactory understanding of mass incarceration (Forman, 2012).
What is important to mention, is that in the beginning of the 1990s, violent crime rates began to
decrease, and have been decreasing ever since. In 1991, the violent crime rate in the US was 729.6
offenses per 100,000 inhabitants (Federal Bureau of Investigation, 2010), compared to 2012 were it
was 386.9 offenses per 100,000 inhabitants (Federal Bureau of Investigation, 2013). So even though
the American population increased, the crime rate decreased. When looking at the rate for
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incarceration, one would think that it had decreased along with crime rates. However, since 1972
the number of incarcerated people has increased from under 200,000 to more than 1,500,000 (The
Sentencing Project, n.d.). These numbers suggest that even though the increase in crime rates during
the 1960s and early 1970s contributed to mass incarceration, it is not the reason incarceration rates
continued to increase. It is however important to mention that these crime rates do not include drug
related crimes. The number of drug offenders has risen from 41,000 in 1980 to approximately
501,500 in 2011 (The Sentencing Project, n.d.). These numbers suggest that drug related crimes
have had a large impact on mass incarceration. Forman argues that the focus on drug crimes is a
necessary byproduct when arguing that mass incarceration is a new form of Jim Crow, because it is
within this area of the justice system that discrimination is worst (Forman, 2012). So to prove
discrimination in the American justice system one is almost obligated to use drug crime statistics
when persuading an audience. However, when speaking of mass incarceration, it is not enough to
mention drug crimes because there are so many other crimes contributing to mass incarceration.
The Professor of Law and Director of the Earl Warren Legal Institute at the University of California
and Berkeley (Garland, 2001), Franklin Zimring (as quoted in Simon, 2011), has a different view on
how mass incarceration was created. He identifies three phases of how mass incarceration started.
The first, he argues, was from the late 1970s through the mid-1980s. This phase was driven by
prosecutors who started using their discretion to send more and more felons to state prisons, rather
than sending them to local jails or on probation (Simon, 2011). The second phase took place in the
late 1980s through the mid-1990s. During these years Reagan expanded the War on Drugs, and
introduced the infamous five-year minimum mandatory sentence for possession of more than five
grams of crack cocaine. In this period, prosecutors sought longer prison sentences and due to
mandatory minimum sentences, more and more people were sent to prison for a long time (Simon,
2011). The third phase began in the late 1990s, and with the help from Congress, many laws were
introduced locking long sentences in place and minimizing the chances of early release.
Furthermore, California introduced the ―three strikes‖ law which mandated courts to impose harsher
sentences on defendants with prior convictions (Simon, 2011).
Zimring agrees with Alexander on the notion that the War on Drugs played a large role in creating
mass incarceration. However, he argues that there are many different factors that contributed to
mass incarceration (Simon, 2011). This view is shared by Forman and Garland, who also believe
that mass incarceration is not a result of a single event or policy, but rather a result of a series of
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events and policies that have all contributed to the phenomenon of mass incarceration (Forman,
2012; Garland, 2001).
5.2. Policing
Roy Kaplan, a professor who teaches in the Department of Africana Studies at the University of
South Florida in Tampa, agrees with Alexander on the subject of racial profiling in drug trafficking.
He mentions that sociologist Brian Withrow‘s analysis of racial profiling studies continuously show
that blacks are no more likely than whites to commit drug related crimes (Kaplan, 2011). Two
studies of racial profiling carried out in New Jersey and Maryland showed that whites were more
likely to carry illegal drugs or contraband in their vehicles than black people, but still the majority
of the people who were stopped and arrested were black (Alexander, 2010). This can be explained
by Kaplan‘s argument that ―[the American society] is built on a foundation of racial stereotypes that
perpetuate the image of dark-skinned people as dangerous, untrustworthy, and violent― (Kaplan,
2011: 161). This statement supports Alexander‘s argument that as long as these stereotypes exist,
police and law enforcement will always be putting their efforts, in regard to fighting drug related
crimes, into the black communities where it is easier to find and arrest drug offenders. A Seattle
study showed that residents were ―far more likely to report suspected narcotics in residences – not
outdoors- but police devoted their resources to open-air drug markets and to the one precinct that
was least likely to be identified as the site of suspected drug activity in citizen complaints‖
(Alexander, 2010: 124). The police carried out their drug enforcement efforts in the one of the
racially mixed parts of town where drug activity was very low, and black dealers were more likely
to be arrested than white dealers, because black dealers were more present on the streets. Even
though heroin was the cause of a lot more hospitalized people than crack and powder cocaine
combined, the police mainly focused on arresting crack dealers (who are usually black) rather than
putting effort into arresting heroin dealers (Alexander, 2010).
Loïc Wacquant is a sociology researcher and a professor of sociology, who shares many of the same
views as Alexander. One of these shared views is the fact that black people are disproportionately
targeted in policing. Wacquant is convinced that the government has labeled black people as
criminals and that ―‘Young + Black + Male‘ is now openly equated with ‗probable cause‘ justifying
the arrest, questioning, bodily search and detention of millions of African American males every
year‖ (Wacquant, 2001: 104). He furthermore argues that the public‘s description of a criminal is
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usually a black person, which supports Alexander‘s argument that black people are viewed as
criminals by society (Wacquant, 2001; Alexander, 2010).
Forman however, has a different view on this topic. He agrees that black people are being targeted
in police profiling and policing. However, he argues that it is not all black people who are targeted
(Forman, 2012). The statement made by Alexander that racially biased policing is contributing to
the phenomenon of the new Jim Crow is criticized by Forman. Forman argues that there is a large
difference between the old and the new Jim Crow, which is the fact that the old Jim Crow targeted
all black people, no matter what social class they came from. Both poor rich, educated and illiterate
black people were discriminated against and locked out of the white superior society. Today‘s
racially biased policing is mostly taking place in the communities of poor black people from lower
class society (Forman, 2012). Forman argues that ―mass incarceration does not impact middle- and
upper-class educated African Americans in the same way that it impacts lower-income African
Americans‖ (Forman, 2012: 132). Forman argues that social class and education have a large
impact on who will be discriminated against in today‘s American society. Unfortunately there are
no recent surveys supporting Forman‘s statement. The most recent federal survey is from 1997, and
it found that college graduates only comprised 2,4 % of state prisons, which is a very low
percentage taking into consideration that college graduates comprised 22 % of the American
population (Bureau of Justice Statistics, Education and Correctional Population as cited in Forman,
2012). Looking at these numbers one can perhaps assume that education and social class does
indeed have an impact on who goes to prison and who does not. However, Forman agrees that when
it comes to racial profiling on the roads and highways, as mentioned earlier, black people are
targeted only because of their skin color, and not based on their wealth (Forman, 2012).
Returning to the Jim Crow analogy, Alexander argues that ―slavery defined what it meant to be
black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today
mass incarceration defines the meaning of blackness in America: black people, especially black
men, are criminals. That is what it means to be black.‖ (Alexander, 2010: 192). With this,
Alexander is saying that slavery, Jim Crow and mass incarceration have all been attempts to define
race in America. This is where Forman disagrees. Alexander might not be wrong that a new form of
Jim Crow exists, but she fails to mention how much of a different version it is and that this time,
black people are not the only ones suffering from the control of the system (Forman, 2012).
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Forman argues that Alexander‘s focus on black people and drug crimes, is contributing to the
misunderstanding of mass incarceration. Forman critiques Alexander for not including, for instance,
Hispanics in her discussion of discrimination. Today Hispanics make up 20 % of American
prisoners, and are thus important to mention when it comes to mass incarceration (Forman, 2012).
Black people are not the only ones discriminated against, and Alexander fails to include this fact in
her book. Furthermore, Forman argues that ―although whites remain relatively underrepresented as
drug offenders, the percentage of drug offenders who are white has risen since 1999, while the
percentage of drug offenders who are black has declined‖ (Forman, 2012: 137). This fact is not
mentioned in The New Jim Crow, and it shows us that even though there are still disproportionately
many black people in prison compared to white people, it may be going in the right direction in
regards to discrimination against black people.
5.3. Prosecutor power
As mentioned in a previous chapter of this thesis, Alexander argues that the prosecutors in the
American justice system bear a large part of the responsibility for mass incarceration and
discrimination against black people in the justice system. This argument is supported by the Adrian
Kragen Professor of Law at UC Berkeley, Jonathan Simon, who argues that the rise in incarceration
rates can be linked to the increased degree of prosecutorial discretion and that ―the rise of the
prosecutor has been underwritten by legislators who are able to reap electoral rewards for laws that
promise to solve broad social problems by handing more powers to prosecutors (Simon, 2011). This
shows us how prosecutors ―receive‖ their power. They have supporters within the legal system who
believe in solving social problems through prosecutors. This mentioning of social problems might
be interesting in the discussion of discrimination. As Alexander argues social problems are usually
problems in minority communities, often related to violence or drugs (Alexander, 2010). So when
Simon argues that the prosecutors have the ability to solve these problems (Simon, 2011), one
might presume that prosecutors are in some way influenced by these legislators. By this means,
prosecutors can crack down on these minorities, such as African Americans, through the laws that
protect the prosecutors from being accused of racial discrimination. Furthermore, it is almost
impossible for a defendant to prove that he has been treated in a racially discriminatory fashion.
Alexander argues that the American justice system has found a way to discriminate against black
people and especially black men by interpreting the law, and simply shooting down any allegations
that the justice system is racially biased. An example of a black man trying to prove racial bias can
be found in the widely known McCleskey case. Warren McCleskey was a black man charged with
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the murder of a white policeman during an armed robbery in Georgia, and he was sentenced to
death. With the help of the NAACP Legal Defense and Education Fund, McCleskey challenged the
verdict saying that Georgia‘s death penalty scheme was racially biased and thus violated the
Fourteenth and Eight Amendments. To support his claim, he presented a large study of more than
two thousand murder cases in Georgia which found that ―defendants charged with killing white
victims received the death penalty eleven times more often than defendants charged with killing
black victims‖ (Alexander, 2010: 107). McCleskey believed that the prosecutors were to blame
because evidence showed that ―they [the prosecutors] sought the death penalty in 70 % of cases
involving black defendants and white victims, but only 19 % of cases involving white defendants
and black victims‖ (Alexander, 2010: 107). Even though McCleskey presented the strongest
evidence ever brought to court regarding race and criminal sentencing, the court rejected
McCleskey‘s claim because he failed to prove conscious racial bias (Alexander, 2010).
As David Cole, a legal scholar, quoted in The New Jim Crow has said: ―The Court has imposed
nearly insurmountable barriers to persons challenging race discrimination at all stages of the
criminal justice system.‖ (Alexander, 2010: 126). People have stopped litigation challenging racial
profiling practices, because they have realized that they simply cannot win such a case or lawsuit,
because there is always some kind of little loophole that the court can use to dismiss any sign of
racial profiling (Alexander, 2010).
5.4. Re-entering society
Forman agrees that ex-felons are discriminated against in American society once they have been
released from prisons: ―Our mantra is ―Do the Crime, Do the Time.‖ But, increasingly, ―the time‖ is
endless, as people with criminal records are permanently locked out of civil society.‖ (Forman,
2012: 107) Moreover, he says that a comparison to Jim Crow is not entirely wrong: ―Like a black
person living under the Old Jim Crow, a convicted criminal today becomes a member of a
stigmatized caste, condemned to a lifetime of second-class citizenship.‖ (Forman, 2012: 110). By
saying this, Forman agrees with Alexander that the current justice system has created a type of
undercaste in America, which Alexander argues resembles that of Jim Crow. Forman however, as
mentioned earlier, stresses that they are two very different kinds of undercaste and that the
comparison to Jim Crow does not mean that American society has returned to Jim Crow (Forman,
2012).
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Wacquant agrees with Alexander and argues that ex-felons are excluded from society and thus have
a much harder time returning to society. He argues that ex-felons do not have the ability to receive
most grants and other student aids because of their conviction (Wacquant, 2001). This makes it
even harder for ex-felons to become contributing members of society since, as argued by
Alexander, most felons are in large debt when being released from prison (Alexander, 2010). Thus
the chances of ex-felons getting a higher education are very small, and they are less likely to get a
well paying job that will give them a better chance of staying out of prison. Wacquant furthermore
agrees with Alexander that ex-felons are excluded from any welfare benefits that might help them
get back on their feet. He says that ―laws deny welfare payments, veterans benefit and food stamps
to anyone in detention for more than 60 days‖ (Wacquant, 2001: 106). With the minimum
sentencing in the United States today, drug offenders (who are mainly black) receive much longer
sentences than 60 days and can thus be sure to never receive any financial aid, once they are
released from prison.
Marc Mauer argues that felon disenfranchisement is another way of eliminating a certain group of
people from society. He believes that racially biased policing, mandatory minimum sentencing, and
felon disenfranchisement are all laws and policies made to unconsciously keep minorities from
gaining too much power in society (Mauer, 2004). He thus agrees with Alexander that
discrimination within the American justice system does exist, and that it functions as a system of
social control. Mauer argues that when a prisoner is released from prison, they should have the
ability to become a participating member of society and not be excluded from it (Mauer, 2004).
Wacquant believes that today´s American prison system operates to neutralize offenders by
incarcerating them for a long period of time, with the hopes that the offenders will become well
behaved people from spending time in prison away from the criminal temptations in society
(Wacquant, 2001). He furthermore compares the current prison system with a ghetto by saying that
the two have the same mission which is ―to quarantine a polluting group from the urban body‖
(Wacquant, 2001: 98). Wacquant argues that many prisoners are far from ready to re-enter society
just because they have served their sentence. There is so much violence and abuse among the
prisoners that the only way to gain respect among your fellow inmates is to exude strength by
fighting violence with more violence (Wacquant, 2001). Wacquant argues that this only makes
prisoners more prone to violence once they are released, because they have solved their problems
with violence instead of learning how to deal with these problems in a more appropriate and
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constructive way. It is the survival of the fittest in prison, just as it is in the ghettos (Wacquant,
2001).
Jeanne Woodford, the former warden of San Quentin prison, (as quoted in Forman, 2010) supports
Wacquant‘s argument: ―I think it‘s unbelievable […] that [when] we have the kind of overcrowded
conditions that we have; that we do little or nothing to prepare people for the return to society in
spite of the fact that we parole 10,000 people a month from our prison system‖ (Forman, 2010:
1008). Mauer is of the same opinion as Wacquant and Woodford who believe that prisons do
nothing to help prisoners prepare for what will happen after they are released (Mauer, 2004).
Mauer, Forman, Alexander, Woodford and Wacquant are all of the opinion that the justice system
and the government should indeed spend more resources on the rehabilitation of felons rather than
building more prisons to hold more prisoners (Mauer, 2004; Forman, 2012; Alexander, 2010;
Forman, 2010; Wacquant, 2001).
5.5. Public ignorance and denial
When asked about racial discrimination today, people say that no such thing exists. Just look at
people like Barack Obama, and Oprah Winfrey. They are some of the most influential people in our
society today and they are black (Alexander, 2010). But these two people are just two examples.
They are just a small percentage of the black people in the US, who have had success with what
they do. Just because a few or even hundreds of black people are successful, does not mean that
discrimination has ended or does not exist. It just means that some are lucky enough to escape the
racial discrimination that exists, not only within the communities, but within the justice system as
well (Alexander, 2010).
As noted previously, critical race theory suggests that racism is part of society and that it is
impossible to eliminate it. The theory also suggests that law sometimes facilitates racism. As
mentioned earlier, it is almost impossible to prove racial bias, because only conscious bias is
considered unconstitutional (Harris, 2012). This supports Alexander‘s statement that we have not
eliminated racism and that there is no easy fix to the problem (Alexander, 2010). It demands a
change in attitude towards black people, and how they are treated in the justice system.
Alexander argues that from the time of slavery until today, people have tended to be in denial when
it comes to acknowledging racial oppression and other forms of human suffering that have occurred
or are occurring. People sometimes only see what they want to see and they are blind to the
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―suffering‖ of other people. But, as Stanley Cohen emphasizes in Alexander‘s book, ―Denial may
be neither a matter of telling the truth nor intentionally telling a lie. There seems to be states of
mind, or even whole cultures, in which we know and don‘t know at the same time.‖ (Alexander,
2010: 177). By this Cohen means that people can know and not know at the same time. In the case
of mass incarceration and discrimination against ex-felons, most Americans know that people
released from prison are excluded from a lot of things in society, such as public housing, voting,
welfare benefits, and other services. However, according to Alexander, people refuse to
acknowledge that this discrimination against ex-felons creates an undercaste in American society
that is very similar to that of the Jim Crow era (Alexander, 2010). She critiques the general public
and the civil rights community of ignoring the problem of mass incarceration, and believes that
much more should be done to inform people of the racial discrimination within the American justice
system (Alexander, 2010).
Forman does not challenge this view on mass incarceration in particular, but says that one of the
reasons mass incarceration is being put aside, is that people have grown tired of listening to cases of
racial discrimination (Forman, 2010). Forman argues that white people tend to feel guilty when
cases of racial discrimination against black people are being brought to the public‘s attention.
Obama (as quoted in Forman, 2010) exemplifies this by saying: ―Rightly or wrongly, white guilt
has largely exhausted itself in America; even the most fair-minded of whites, […] tend to push back
against suggestions of racial victimization‖ (Forman, 2010: 997). Obama‘s statement is supported
by Forman, who believes that there has been so much attention given to racial discrimination that it
is no longer news to people, and therefore not interesting (Forman, 2010). Forman argues that to
bring more focus on the problem of mass incarceration, the racial factor should not be the main
persuader, but rather the fact that mass incarceration is a huge burden on American society, and that
it affects all people and not just people of color (Forman, 2010).
6. Conclusion
The analysis and discussion of this thesis reveal that discrimination within the American justice
system does exist, and that this has played a role in creating the current situation of mass
incarceration that the US has today. Black people are targeted by police and law enforcement on the
streets, because it has become a stereotype that black people are criminals. Furthermore, the high
level of discretion that the justice system has makes it very easy to discriminate against black
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Rikke Berg Thomsen, 303054
Bachelor Afhandling Maj 2014
people. This high level of discretion also makes it near to impossible for black people to make a
case challenging racial discrimination.
The one thing that all the scholars in this thesis agree on is the fact that ex-felons are discriminated
against in society. Ex-felons are becoming a continuously growing group of people, who are viewed
and treated as outcasts by society (Forman, 2012). This discrimination should be of vast concern to
the American government. When excluding a certain group of people from society, it creates an
undercaste that will just keep getting bigger, unless measures are taken to rehabilitate and help
prisoners re-enter society. This proves that Americans do not live in post-racial society, and that
discrimination will, most likely, not be ended in the near future.
The most important thing that can be done to change the current situation with mass incarceration is
to make people see how big of a problem it really is. Mass incarceration does not only affect people
of color or people who have been to prison. It is a huge burden on American society that affects
everybody, regardless of color or social status.
Mass incarceration, as Forman, Wacquant and Mauer argue, is the result of many different events.
The rise in crime during the late 1960s resulted in the prison boom, and then the tough on crime
policies were introduced (such as the War on Drugs) which resulted in more arrests and convictions,
and even though crime rates began to decrease in the 1990s, more and more people were put behind
bars. When looking at drug related offenses, the number has increased since the 1990s, and this
might explain why prison population did not decrease along with the crime rates. However, drug
offenders do not constitute as big a part of the penal system as violent offenders, and thus cannot
bear the sole responsibility of mass incarceration today.
The New Jim Crow is a book that should be read critically. The book gives a good overview of the
problem of mass incarceration and some of the causes. However, the book is, as mentioned earlier,
written very subjectively. Alexander puts emphasis on the racially discriminative treatment of black
drug offenders in the justice system, and leaves out all other criminal offenders in order to easier
persuade her reader of the fact that black people are discriminated against in all parts of the justice
system. Alexander‘s book gives a good base for discussion and has many interesting points worthy
of discussion, as those discussed in this thesis.
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Rikke Berg Thomsen, 303054
Bachelor Afhandling Maj 2014
7. List of References
Alexander, M. (2010) The New Jim Crow - Mass Incarceration in the Age of Colorblindness. New
York: The New Press.
Bell, J. D. (2011) Home
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Drug Policy Alliance (n.d.). [Online]
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[Accessed 28 04 2014].
FBI National Press Office (2013) FBI Releases 2012 Crime Statistics.
Available at: http://www.fbi.gov/news/pressrel/press-releases/fbi-releases-2012-crime-statistics
[Accessed 29 04 2014].
Federal Bureau of Investigation (2010) Crime in the United States Table 1.
Available at: http://www2.fbi.gov/ucr/cius2009/data/table_01.html [Accessed 29 04 2014].
Federal Judicial Center (n.d.). [Online]
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http://www.fjc.gov/public/pdf.nsf/lookup/U.S._Legal_System_English07.pdf/$file/U.S._Legal_Syst
em_English07.pdf [Accessed 15 03 2014].
Forman, J. (2010) Why Care About Mass Incarceration. Michigan Law Review 108, 993-1010.
Forman, J. (2012) Racial Critiques of Mass Incarceration: Beyond The New Jim Crow. Racial
Critiques, 101-146.
Garland, D. (2001) List of contributors. In D. Garland (ed.) Mass Imprisonment - Social Causes and
Consequences. London: Sage Publications, V-VI.
Harris, A. P. (2012). Critical Race Theory. International Encyclopedia of the Social & Behavioral
Sciences.
Kaplan, H. R. (2011) The Myth of Post-Racial America. Plymouth: Rowman & Littlefield
Education.
Mauer, M. (2001) The causes and consequences of prison growth in the United States. In D.
Garland (ed.) Mass Imprisonment - Social Causes and Consequences. London: Sage Publications,
4-14.
Mauer, M. (2004) Race, Class, and the Development of Criminal Justice Policy. Review of Policy
Research 21, 79-92. Available at: http://onlinelibrary.wiley.com/doi/10.1111/j.15411338.2004.00059.x/full [Accessed 16 04 2014]
NAACP (n.d.) Criminal Justice Fact sheet. [Online]
Available at: http://www.naacp.org/pages/criminal-justice-fact-sheet [Accessed 24 04 2014].
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Bachelor Afhandling Maj 2014
Osel, J. D. (2012) Black Out: Michelle Alexander's Operational Whitewash. International Journal
of Radical Critique.
Osel, J. D. (2012). Toward Détournement of The New Jim Crow or The Strange Career of The New
Jim Crow. International Journal of Radical Critique.
Russell-Brown, K. (2004) Underground Codes : Race, Crime and Related Fires. New York: New
York University Press.
Russell-Brown, K. (2009). The Color of Crime. 2. edn. New York: New York University Press.
Simon, J. (2011) Mass Incarceration: From Social Policy to Social Problem. In J. Petersilla and K.
R. Reitz (eds) The Oxford Handbook of Sentencing and Corrections. Oxford Handbooks, 23-52.
The New Jim Crow (2010) [Photograph Online] Available at: http://thenewjimcrow.com/
The Sentencing Project (2014) [Online]
Available at:
http://www.sentencingproject.org/doc/publications/inc_Facts%20About%20Prisons.pdf
[Accessed 11 03 2014].
The Sentencing Project (n.d.). [Online]
Available at: http://www.sentencingproject.org/template/page.cfm?id=107 [Accessed 13 03 2014].
The Sentencing Project (n.d.). [Online]
Available at: http://www.sentencingproject.org/template/page.cfm?id=128 [Accessed 24 04 2014].
The Sentencing Project (n.d.). [Online]
Available at: http://www.sentencingproject.org/template/page.cfm?id=2 [Accessed 14 04 2014].
Tuck, S. (2010) We Ain't What We Ougt To Be - The Black Freedom Struggle From Emancipation
to Obama. London: The Belknap Press of Harvard University Press.
Wacquant, L. (2001) Deadly Symbiosis: When ghetto and prison meet and mesh. In D. Garland
(ed.) Mass Imprisonment - Social Causes and Consequences. London: Sage Publications, 82-120.
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