One example of the way in which a well established racial order easily absorbs legal challenges is the infamous aftermath of the Brown v. Board of Education decision. After the Supreme Court declared separate schools inherently unequal in 1954, segregation persisted unabated. One commentator notes: “The statistics from the Southern states are truly amazing. For ten years, 1954-1964, virtually nothing happened.”23 Not a single black child attended an integrated public grade school in South Carolina, Alabama, or Mississippi as of the 1962-1963 school year. Across the South as a whole, a mere 1 percent of black school children were attending school with whites in 1964—a full decade after Brown was decided.24 Brown did not end Jim Crow; a mass movement had to emerge first—one that aimed to create a new public consensus opposed to the evils of Jim Crow. This does not mean Brown v. Board was meaningless, as some commentators have claimed.25 Brown gave critical legitimacy to the demands of civil rights activists who risked their lives to end Jim Crow, and it helped to inspire the movement (as well as a fierce backlash).26 But standing alone, Brown accomplished for African Americans little more than Abraham Lincoln’s Emancipation Proclamation. A civil war had to be waged to end slavery; a mass movement was necessary to bring a formal end to Jim Crow. Those who imagine that far less is required to dismantle mass incarceration and build a new, egalitarian racial consensus reflecting a compassionate rather than punitive impulse toward poor people of color fail to appreciate the distance between Martin Luther King Jr.’s dream and the ongoing racial nightmare for those locked up and locked out of American society.
The foregoing should not be read as a call for movement building to the exclusion of reform work. To the contrary, reform work is the work of movement building, provided that it is done consciously as movement-building work. If all the reforms mentioned above were actually adopted, a radical transformation in our society would have taken place. The relevant question is not whether to engage in reform work, but how. There is no shortage of worthy reform efforts and goals. Differences of opinion are inevitable about which reforms are most important and in what order of priority they should be pursued. These debates are worthwhile, but it is critical to keep in mind that the question of how we do reform work is even more important than the specific reforms we seek. If the way we pursue reforms does not contribute to the building of a movement to dismantle the system of mass incarceration, and if our advocacy does not upset the prevailing public consensus that supports the new caste system, none of the reforms, even if won, will successfully disrupt the nation’s racial equilibrium. Challenges to the system will be easily absorbed or deflected, and the accommodations made will serve primarily to legitimate the system, not undermine it. We run the risk of winning isolated battles but losing the larger war.
Let’s Talk About Race—Resisting the Temptation of Colorblind Advocacy
So how should we go about building this movement to end mass incarceration? What should be the core philosophy, the guiding principles? Another book could be written on this subject, but a few key principles stand out that can be briefly explored here. These principles are rooted in an understanding that any movement to end mass incarceration must deal with mass incarceration as a racial caste system, not as a system of crime control. This is not to say crime is unimportant; it is very important. We need an effective system of crime prevention and control in our communities, but that is not what the current system is. This system is better designed to create crime, and a perpetual class of people labeled criminals, rather than to eliminate crime or reduce the number of criminals.
It is not uncommon, however, to hear people claim that the mere fact that we have the lowest crime rates, at the same time that we have the highest incarceration rates, is all the proof needed that this system works well to control crime. But if you believe this system effectively controls crime, consider this: standard estimates of the amount of crime reduction that can be attributable to mass incarceration range from 3 to 25 percent.27 Some scholars believe we have long since passed a tipping point where the declining marginal return on imprisonment has dipped below zero. Imprisonment, they say, now creates far more crime than it prevents, by ripping apart fragile social networks, destroying families, and creating a permanent class of unemployables. 28 Although it is common to think of poverty and joblessness as leading to crime and imprisonment, this research suggests that the War on Drugs is a major cause of poverty, chronic unemployment, broken families, and crime today. But even assuming 25 percent is the right figure, it still means that the overwhelming majority of incarceration—75 percent—has had absolutely no impact on crime, despite costing nearly $200 billion annually. As a crime reduction strategy, mass incarceration is an abysmal failure. It is largely ineffective and extraordinarily expensive.
Saying mass incarceration is an abysmal failure makes sense, though, only if one assumes that the criminal justice system is designed to prevent and control crime. But if mass incarceration is understood as a system of social control—specifically, racial control—then the system is a fantastic success. 29 In less than two decades, the prison population quadrupled, and large majorities of poor people of color in urban areas throughout the United States were placed under the control of the criminal justice system or saddled with criminal records for life. Almost overnight, huge segments of ghetto communities were permanently relegated to a second-class status, disenfranchised, and subjected to perpetual surveillance and monitoring by law enforcement agencies. One could argue this result is a tragic, unforeseeable mistake, and that the goal was always crime control, not the creation of a racial undercaste. But judging by the political rhetoric and the legal rules employed in the War on Drugs, this result is no freak accident.
In order to make this point, we need to talk about race openly and honestly. We must stop debating crime policy as though it were purely about crime. People must come to understand the racial history and origins of mass incarceration—the many ways our conscious and unconscious biases have distorted our judgments over the years about what is fair, appropriate, and constructive when responding to drug use and drug crime. We must come to see, too, how our economic insecurities and racial resentments have been exploited for political gain, and how this manipulation has caused suffering for people of all colors. Finally, we must admit, out loud, that it was because of race that we didn’t care much what happened to “those people” and imagined the worst possible things about them. The fact that our lack of care and concern may have been, at times, unintentional or unconscious does not mitigate our crime—if we refuse, when given the chance, to make amends.
Admittedly, though, the temptation to ignore race in our advocacy may be overwhelming. Race makes people uncomfortable. One study found that some whites are so loath to talk about race and so fearful of violating racial etiquette that they indicate a preference for avoiding all contact with black people.30 The striking reluctance of whites, in particular, to talk about or even acknowledge race has led many scholars and advocates to conclude that we would be better off not talking about race at all. This view is buttressed by the fact that white liberals, nearly as much as conservatives, seem to have lost patience with debates about racial equity. Barack Obama noted this phenomenon in his book, The Audacity of Hope: “Rightly or wrongly, white guilt has largely exhausted itself in America; even the most fair-minded of whites, those who would genuinely like to see racial inequality ended and poverty relieved, tend to push back against racial victimization—or race-specific claims based on the history of race discrimination in this country.”
Adding to the temptation to avoid race is the fact that opportunities for challenging mass incarceration on purely race-neutral grounds have never been greater. With budgets busting, more than two dozen states have reduced or eliminated harsh mandatory minimum sentences, restored early-release programs, and offered treatment instead of incarceration for some drug offenders.31 The financial crisis engulfing states large and small has led to a conversion among some legislators who once
were “get tough” true believers. Declining crime rates, coupled with a decline in public concern about crime, have also helped to create a rare opening for a productive public conversation about the War on Drugs. A promising indicator of the public’s receptivity to a change in course is California’s Proposition 36, which mandated drug treatment rather than jail for first-time offenders, and was approved by more than 60 percent of the electorate in 2000.32 Some states have decriminalized marijuana, including Massachusetts, where 65 percent of state voters approved the measure.33 Taken together, these factors suggest that, if a major mobilization got underway, impressive changes in our nation’s drug laws and policies would be not only possible, but likely, without ever saying a word about race.
This is tempting bait, to put it mildly, but racial justice advocates should not take it. The prevailing caste system cannot be successfully dismantled with a purely race-neutral approach. To begin with, it is extremely unlikely that a strategy based purely on costs, crime rates, and the wisdom of drug treatment will get us back even to the troubling incarceration rates of the 1970s. As indicated earlier, any effort to downsize dramatically our nation’s prisons would inspire fierce resistance by those faced with losing jobs, investments, and other benefits provided by the current system. The emotion and high anxiety would likely express itself in the form of a racially charged debate about values, morals, and personal responsibility rather than a debate about the prison economy. Few would openly argue that we should lock up millions of poor people just so that other people can have jobs or get a good return on their private investments. Instead, familiar arguments would likely resurface about the need to be “tough” on criminals, not coddle them or give “free passes.” The public debate would inevitably turn to race, even if no one was explicitly talking about it. As history has shown, the prevalence of powerful (unchallenged) racial stereotypes, together with widespread apprehension regarding major structural changes, would create a political environment in which implicit racial appeals could be employed, once again, with great success. Failure to anticipate and preempt such appeals would set the stage for the same divide-and-conquer tactics that have reliably preserved racial hierarchy in the United States for centuries.
Even if fairly dramatic changes were achieved while ignoring race, the results would be highly contingent and temporary. If and when the economy improves, the justification for a “softer” approach would no longer exist. States would likely gravitate back to their old ways if a new, more compassionate public consensus about race had not been forged. Similarly, if and when crime rates rise—which seems likely if the nation’s economy continues to sour—nothing would deter politicians from making black and brown criminals, once again, their favorite whipping boys. Since the days of slavery, black men have been depicted and understood as criminals, and their criminal “nature” has been among the justifications for every caste system to date. The criminalization and demonization of black men is one habit America seems unlikely to break without addressing head-on the racial dynamics that have given rise to successive caste systems. Although colorblind approaches to addressing the problems of poor people of color often seem pragmatic in the short run, in the long run they are counterproductive. Colorblindness, though widely touted as the solution, is actually the problem.
Against Colorblindness
Saying that colorblindness is the problem may alarm some in the civil rights community, especially the pollsters and political consultants who have become increasingly influential in civil rights advocacy. For decades, civil rights leaders have been saying things like “we all want a colorblind society, we just disagree how to get there” in defense of race-conscious programs like affirmative action or racial data collection.34 Affirmative action has been framed as a legitimate exception to the colorblindness principle—a principle now endorsed by the overwhelming majority of the American electorate. Civil rights leaders are quick to assure the public that when we reach a colorblind nirvana, race consciousness will no longer be necessary or appropriate.
Far from being a worthy goal, however, colorblindness has proved catastrophic for African Americans. It is not an overstatement to say the systematic mass incarceration of people of color in the United States would not have been possible in the post-civil rights era if the nation had not fallen under the spell of a callous colorblindness. The seemingly innocent phrase, “I don’t care if he’s black ...” perfectly captures the perversion of Martin Luther King Jr.’s dream that we may, one day, be able to see beyond race to connect spiritually across racial lines. Saying that one does not care about race is offered as an exculpatory virtue, when in fact it can be a form of cruelty. It is precisely because we, as a nation, have not cared much about African Americans that we have allowed our criminal justice system to create a new racial undercaste.
The deeply flawed nature of colorblindness, as a governing principle, is evidenced by the fact that the public consensus supporting mass incarceration is officially colorblind. It purports to see black and brown men not as black and brown, but simply as men—raceless men—who have failed miserably to play by the rules the rest of us follow quite naturally. The fact that so many black and brown men are rounded up for drug crimes that go largely ignored when committed by whites is unseen. Our collective colorblindness prevents us from seeing this basic fact. Our blindness also prevents us from seeing the racial and structural divisions that persist in society: the segregated, unequal schools, the segregated, jobless ghettos, and the segregated public discourse—a public conversation that excludes the current pariah caste. Our commitment to colorblindness extends beyond individuals to institutions and social arrangements. We have become blind, not so much to race, but to the existence of racial caste in America.
More than forty-five years ago, Martin Luther King Jr. warned of this danger. He insisted that blindness and indifference to racial groups is actually more important than racial hostility to the creation and maintenance of racialized systems of control. Those who supported slavery and Jim Crow, he argued, typically were not bad or evil people; they were just blind. Even the Justices who decided the infamous Dred Scott case, which ruled “that the Negro has no rights which the white man is bound to respect,” were not wicked men, he said. On the contrary, they were decent and dedicated men. But, he hastened to add, “They were victims of a spiritual and intellectual blindness. They knew not what they did. The whole system of slavery was largely perpetuated through spiritually ignorant persons.” He continued:This tragic blindness is also found in racial segregation, the not-too-distant cousin of slavery. Some of the most vigorous defenders of segregation are sincere in their beliefs and earnest in their motives. Although some men are segregationists merely for reasons of political expediency and political gain, not all of the resistance to integration is the rearguard of professional bigots. Some people feel that their attempt to preserve segregation is best for themselves, their children, and their nation. Many are good church people, anchored in the religious faith of their mothers and fathers.... What a tragedy! Millions of Negroes have been crucified by conscientious blindness.... Jesus was right about those men who crucified him. They knew not what they did. They were inflicted by a terrible blindness.35
Could not the same speech be given about mass incarceration today? Again, African Americans have been “crucified by conscientious blindness.” People of good will have been unwilling to see black and brown men, in their humanness, as entitled to the same care, compassion, and concern that would be extended to one’s friends, neighbors, or loved ones. King recognized that it was this indifference to the plight of other races that supported the institutions of slavery and Jim Crow. In his words, “One of the great tragedies of man’s long trek along the highway of history has been the limiting of neighborly concern to tribe, race, class or nation.” The consequence of this narrow, insular attitude “is that one does not really mind what happens to the people outside his group.”36 Racial indifference and blindness—far more than racial h
ostility—form the sturdy foundation for all racial caste systems.
Abandoning the quest for a colorblind society is easier said than done, of course. Racial justice advocates, if they should choose this path, will be required to provide uncomfortable answers to commonly asked questions. For example, advocates are frequently asked, When will we (finally) become a colorblind society? The pursuit of colorblindness makes people impatient. With courage, we should respond: Hopefully never. Or if those words are too difficult to utter, then say: “Not in the foreseeable future.”
More than a little patience will be needed when explaining the complete about-face. Probably around the same number of people think the Earth is flat as think race consciousness should be the rule in perpetuity, rather than the exception. It would be a mistake, though, to assume that people are incapable of embracing a permanent commitment to color consciousness. The shift may, in fact, come as something of a relief, as it moves our collective focus away from a wholly unrealistic goal to one that is within anyone’s reach right now. After all, to aspire to colorblindness is to aspire to a state of being in which you are not capable of seeing racial difference—a practical impossibility for most of us. The shift also invites a more optimistic view of human capacity. The colorblindness ideal is premised on the notion that we, as a society, can never be trusted to see race and treat each other fairly or with genuine compassion. A commitment to color consciousness, by contrast, places faith in our capacity as humans to show care and concern for others, even as we are fully cognizant of race and possible racial differences.
If colorblindness is such a bad idea, though, why have people across the political spectrum become so attached to it? For conservatives, the ideal of colorblindness is linked to a commitment to individualism. In their view, society should be concerned with individuals, not groups. Gross racial disparities in health, wealth, education, and opportunity should be of no interest to our government, and racial identity should be a private matter, something best kept to ourselves. For liberals, the ideal of colorblindness is linked to the dream of racial equality. The hope is that one day we will no longer see race because race will lose all of its significance. In this fantasy, eventually race will no longer be a factor in mortality rates, the spread of disease, educational or economic opportunity, or the distribution of wealth. Race will correlate with nothing; it will mean nothing; we won’t even notice it anymore. Those who are less idealistic embrace colorblindness simply because they find it difficult to imagine a society in which we see race and racial differences yet consistently act in a positive, constructive way. It is easier to imagine a world in which we tolerate racial differences by being blind to them.
The New Jim Crow: Mass Incarceration in the Age of Colorblindness Page 30
