A decade after The New Jim Crow was first published, Michelle Alexander’s seminal critique of the criminal justice system needs to be weighed against data from the Bureau of Justice Statistics and other official sources. In her book, she writes that “mass incarceration is, metaphorically, the New Jim Crow” (Alexander, 2010, p. 11): Black Americans continue to be subordinated compared to the rest of the country, even though slavery and Jim Crow laws ended in the 1960s (History, 2018). According to Alexander, the “war on drugs” has been the driving force of mass incarceration and is the mechanism by which society oppresses Black people and prevents them from living free, full lives – by locking them up in jail or prison, and through parole and probation. Although it does not fit the description of war in its most traditional sense, the “war on drugs” can best be understood as a set of policies set in motion during the 1970s that were designed to curb illegal use and the associated distribution and trade of drugs (History, 2017). These policies imposed harsh prison sentences for sellers, buyers, and users. End the war on drugs, her logic goes, and we will have corrected a major source of racial disparity in the criminal justice system while also addressing our country’s bloated prison population.
However, contrary to Alexander’s assertion, ending mass incarceration requires us to do much more than end the war on drugs. This is because the war on drugs is not the only contributor to this country’s current prison population. Only 1 in 5 people incarcerated in federal and state prisons are there because of drug charges (Sawyer & Wagner, 2020), and even the majority of these cases are not low-level drug crimes (Lopez, 2017), as Alexander suggests. At all levels of incarceration (federal, state, and local), violent and property crimes account for 56.9% of all charges against incarcerated persons (Sawyer & Wagner, 2020).
In John Pfaff’s 2017 text, Locked In, the scholar shows how drug convictions play a relatively minor role in increasing prison populations, when compared to violent and property crimes. According to Pfaff, the rates of incarceration grew beginning in the 1970s because of violent offense charges made in the 1960s. These rates of incarceration later reached their peak during the 1990s. Additionally, incentives placed on prosecutors, public defenders, and the accused have contributed to rising incarceration rates. Prosecutors have strong incentives to convict. Because most federal prosecutors are elected directly, they often benefit from appearing “tough on crime.” Their budgets come from the county, whereas states pay for the cost of prison: prosecutor offices are able to sentence as many people as they please without bearing the long-term cost of these sentences. Pfaff also highlights the fact that having little oversight allows prosecutors to make decisions with impunity.
In the case of public defenders, who are often overwhelmed by caseloads, they have an incentive to seek plea bargains to avoid going to trial. Given the opacity of the criminal justice system, defendants often lack the information necessary to evaluate their own cases and usually follow their public defenders’ advice to accept a plea bargain. On these perverse incentives, Pfaff and Alexander agree. It is important to note that the outsize influence of prosecutors is a large driver of mass incarceration and is not unique to the war on drugs.
In an interview published in The New Yorker earlier this year, Alexander acknowledged that “roughly half of the people who are held in state prisons today have been convicted of offenses that are labelled violent” and conceded that only “a small minority of people in prison today have been labelled drug offenders” (Remnick, 2020). But it would be remiss, according to Alexander, to consider the impact of the war on drugs only on the current prison population. She contends that to truly understand the impact of the war on drugs on mass incarceration, we must also consider the impact of parole and probation, as well as the lifelong stigma and restrictions that convicted persons face. In doing so, she distracts from her central argument – that the war on drugs has caused the prison population to skyrocket. Certainly, convicted persons face an uphill battle, often for life, in combating the stigma of a conviction. This is one reason why reforming the war on drugs is worthwhile. However, when it comes to the current prison population, reforms to the war on drugs will have little impact on reducing the prison population.
Even if we expand our analysis to include individuals on parole and probation, Alexander still equivocates. The effect is not as great as she leads us to believe. The Bureau of Justice Statistics reported in 2018 that of adults on parole, 26% were charged with a drug crime as the most serious offense. They make up far less than the majority. The parole system is certainly flawed, and technical violations lead to a fraction of people on parole being sent back to prison. Given the small number of people on parole sent back to prison, it is unlikely that reform will greatly impact overall prison populations.
Regardless of the motives behind the war on drugs, people convicted of drug crimes account for so little of the prison population that releasing all of them from prison would have a minimal effect on the racial makeup of prisons. Pfaff shows that “If we released everyone in prison in 2013 whose top charge was a drug offense, the white percentage would rise by one point (from 35 to 36 percent), the black percentage would fall by one point (from 38 to 37 percent), and the Hispanic percentage wouldn’t change” (Pfaff, 2017, p. 46). It’s clear Michelle Alexander overstates the role of the war on drugs on the racial disparity in prison, as well as on the prison population as a whole.
Despite the fact that the war on drugs has not been the driver of mass incarceration or vast racial differences among incarcerated people, our country is right to rethink its policies on drugs. Society’s views on drugs are shifting, and the legal system should reflect these changes. Harsh drug laws push the drug market underground (Miron, 2017), fail to take a public health approach to drug use (Pearl & Perez, 2018), and do not deter drug use (Pew Trusts, 2018). Drug reform will have a positive impact on those directly involved in the drug market as well as their families and society, but focusing on drug crimes alone will do little to resolve the crisis of mass incarceration.
Making real reform and reversing mass incarceration will require a serious look at how we deal with violent offenders as well as the role of prosecutors. Because violent offenders make up the majority of people in prison across the federal and state systems, we need to have difficult conversations about reducing sentences and reintegrating violent offenders into society. Prosecutors must be held accountable for their decisions on whom to prosecute and under which charges, and public defenders must have the resources necessary to fight these charges. Pushing for these changes may be less politically palatable than addressing low-level drug crimes, but without tackling the true cause of mass incarceration, the prison population in the U.S. is unlikely to change.
References
Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. The New Press.
History. (2017). War on drugs. https://www.history.com/topics/crime/the-war-on-drugs
History. (2018). Jim Crow laws. https://www.history.com/topics/early-20th-century-us/jim-crow-laws
Kaeble, D., & Alper, M. (2020, August). Probation and parole in the United States, 2017-2018. Bureau of Justice Statistics, U.S. Department of Justice. NCJ 252072. https://www.bjs.gov/content/pub/pdf/ppus1718.pdf
Lopez, G. (2017, May 30). Why you can’t blame mass incarceration on the war on drugs. Vox. https://www.vox.com/policy-and-politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in
Miron, J. (2014, January 27). Is the war on drugs over? Cato Institute. https://www.cato.org/publications/commentary/war-drugs-over
Pearl, B., & Perez, M. (2018, June 27). Ending the war on drugs. Center for American Progress. https://www.americanprogress.org/issues/criminal-justice/reports/2018/06/27/452786/ending-war-drugs/
Pew Trusts. (2018, March 8). More imprisonment does not reduce state drug problems. https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2018/03/more-imprisonment-does-not-reduce-state-drug-problems
Pfaff, J. F. (2017). Locked in: The true causes of mass incarceration and how to achieve real reform. Basic Books.
Remnick, D. (2020, January 17). Ten years after “The New Jim Crow.” The New Yorker. https://www.newyorker.com/news/the-new-yorker-interview/ten-years-after-the-new-jim-crow
Sawyer, W., & Wagner, P. (2020, March 24). Mass incarceration: The whole pie 2020. Prison Policy Initiative. https://www.prisonpolicy.org/reports/pie2020.html