When Barack Obama was elected in 2008, it was hailed by many as a final triumph over race, bringing tears to the eyes of the likes Oprah Winfrey and Jesse Jackson. Some people muttered at the time that the US remains a deeply racially divided country, and that Obama’s victory was one merely at the level of political symbols: it would mean little if it were not translated into a transformation of race-relations on the ground. Four years later, it is hard to overstate quite how vindicated the latter group have been.
In America today, a higher proportion of the black community are imprisoned than were imprisoned in apartheid South Africa. More African Americans are under some form of correctional control – probation, parole or jail – than were enslaved in 1850, a decade before the Civil War began. And despite constituting only 13% of the US population, African Americans account for 39% of all people incarcerated, either in prison or jail. In short, for African Americans today, the United States is one great Land of the Unfree.
As the legal scholar Michelle Alexander writes in her dynamite book The New Jim Crow: Mass Incarceration in the Age of Colorblindness the modern American criminal justice system functions, in reality, as a form of racial control: plucking hundreds of thousands of African Americans from their streets and communities, locking them in cages, and rendering them to a permanent second-class status where they can be legally discriminated against in employment, housing, and education. Her thesis is that racial caste in America never ended from the days of slavery and then Jim Crow: it was ‘merely redesigned’.
And there is one area, more than any other, that drives this stark racial disparity: the War on Drugs. Within the criminal justice system overall, blacks are 6.7 times more likely to end up incarcerated than whites. But for drug offences, blacks are 13 times more likely than whites to be incarcerated. In some states this disparity is more stark: in the likes of Maryland and Illinois (Obama’s home state), black men constitute a jaw-dropping 90% of all drug admissions. Indeed, black men are incarcerated for drug offences at a higher rate than for violent offences.
Before proceeding to explain how this modern form of racial control works it’s worth refuting two major misconceptions. The first is that African Americans constitute a higher proportion of drug users and sellers. In fact, drug use on the whole is almost precisely equal amongst all racial groups. Nor does the drug war target dealers: four out of five arrests are for possession, the majority for marijuana.
The second misconception is that prohibition is a sensible and effective way of dealing with the risks posed by drug use. Fundamentally, drug use is more adequately dealt with when treated as a health issue, rather than a criminal one, and the empirical evidence supports this. Indeed, a compelling theory has been put forward by the campaigner Richard Cowan termed the Iron Law of Prohibition: ‘the more intense the law enforcement, the more potent the drugs will become… It is good business to minimize the bulk of contraband. Tiny pieces of crack are easier to carry than cocaine powder.’ This theory fits with the facts: crack appeared on American streets in 1984, 3 years after Reagan turned the War on Drugs into a literal war under the Military Cooperation with Law Enforcement Act of 1981.
So, given that the Fourteenth Amendment of the US constitution explicitly guarantees ‘equal protection of the laws’, how has this come to pass? Racial discrimination informs each stage of the criminal justice system – from policing through to arrest through to court appearance, and what is key at all three stages of this process is the role of discretion in each. The first is in policing – given that at least 10% of the American population are drug users, the police have no end of the communities they can choose from, but they predominantly target poor, black, ghettos, to such an extent that its residents refer to the police presence as ‘The Occupation’. Why? Partly because they can get with it, partly because of conscious racism.
And not only conscious racism. Alexander cites a study from the Journal of Alcohol and Drug Addiction in which participants were asked to close their eyes and picture a drug dealer: 95% of them pictured someone black. Even African Americans displayed a similar level of cognitive bias. The chances of getting proper legal representation are slim to non-existent. Juries are often disproportionately white, who in turn will suffer from the cognitive bias cited above. Possession of crack was (until recently) punished 100 times more severely than possession of cocaine: 93% of convicted crack offenders are black, despite the fact crack use in absolute terms is far higher among whites.
No account of the racism of the American drug war would be complete without a description of the Supreme Court’s role in preserving discriminatory practices. The Supreme Court is designed to uphold the rights of ‘discrete and insular’ minorities. But in McCleskey v Kemp, for instance, it ruled that racial discrimination in sentencing is only relevant when evidence of conscious discrimination is demonstrable, even in the face of compelling statistical evidence. Purkett v Elm ruled that prosecutors need not provide ‘an explanation that is persuasive, or even plausible’ in their justification for juror strikes, paving the way for the elimination of minority representation on juries. And Alexander v Sandoval ruled that claims of racial discrimination could no longer be brought under Title VI of the Civil Rights Act 1964, which Alexander says ‘eliminated the last remaining avenue for challenging racial bias in the criminal justice system.’ These are three of only the most egregious examples.
Once jailed, those convicted can expect to remain incarcerated for a very long time. Thanks to the Anti-Drug Abuse Act of 1986, the typical mandatory sentence for a first-time drug offence in a federal court is five to ten years. And due to the ‘three-strikes’ laws (enacted under Clinton), all it takes is three drug offences and you are sentenced to life. Mass incarceration also exacerbates the spread of HIV infection, with African Americans suffering most. According to Just Detention International, over 200,000 people in US detention are raped or sexually abused - many of them repeatedly. At least 600,000 inmates are involved in prison labor throughout the US, producing products for the likes of Walmart and Lockheed Martin. This labour is either completely unpaid, or almost unpaid, as in the likes of Arizona, where workers are paid the princely sum of 50 cents an hour. Some states require all able-bodied inmates to work, meaning it is essentially coerced. And there is a word for coerced, unpaid labour: slavery.
Upon release, ex-offenders will enter into a world in which they have essentially been rendered second-class citizens, discriminated against in housing, employment, provision of food stamps, and voting rights. In housing, public housing associations are allowed to exclude or evict anyone convicted of any crime, no matter how small. In employment, all applicants are required to ‘check a box’ asking if they have ever been convicted of a crime – far less than half of employers say they would consider an ex-offender. Ex-offenders are also barred under federal law from receiving food stamps – and only a few states have opted-out of this rule.
Compounding all this is the level of disenfranchisement among felons: 11 states strip offenders from voting for life. As a result, 7% of the African American population are disenfranchised. Electorally, this makes an enormous difference. If the 600,000 ex-felons in Florida had been able to vote in 2000, it almost certainly would have tipped the result in favour of Gore. That could have meant the difference between an Iraq war, and no Iraq war.
There are two major ways in which the official incarceration statistics for ‘drug offences’ are deceptive. First, they do not account for the other 7.5 million citizens in another form of correctional community control – either on probation or parole. A disproportionate number are black, and many are supervised on drug-charges. Second, drug prohibition plays no small part in fostering what violence takes place in the United States – meaning that the 319,700 black offenders incarcerated for violent offences (almost equivalent to the number of people incarcerated for all reasons in 1980) can again be attributed (partly) to the War on Drugs. The relationship has been empirically demonstrated by Harvard academic Jeffrey Miron: when he plotted the relationship between law enforcement and homicide levels, there were two big spikes along the length of the graph, which both correlate precisely with the US’s two 20th century attempts at prohibition.
So what has Obama done about it? He has reduced the sentencing disparity between crack and cocaine from 100-to-1 to 18-to-1 under the Fair Sentencing Act of 2010, which vastly disproportionately affected African Americans. The absolute numbers of all those incarcerated has, for the first time since 1972, dropped – though only by a pitiful 0.3%. Needless to say, this is nothing like enough. Indeed, by some measures, he has turned out to be a more ferocious drug warrior than Bush – the ratio of federal funds going to prevention and treatment over enforcement has tipped even more heavily towards the latter. And his Stimulus Bill included a twelve-fold increase in funding for the Byrne Grant program, around of half of which goes towards drug enforcement.
The perpetuation of mass incarceration is attributable in no small part to what is described as the ‘prison-industrial complex’. The author of Lockdown America, Christian Parenti, explains that this is composed of a coalition of interests – the communities that benefit from the Keynesian stimulus of prison-building, the very well unionised sectors of prison guards and workers, the private prison industry, and those businesses which profit from prison labour. But the fundamental cause is, according to Parenti, the preservation of capitalism and the accumulation of profit. Capital requires large, surplus groups of the poor and unemployed in order to drive down wages. But it is also threatened by this large group of the poor and unemployed - who might rebel. Parenti argues that capital has come to understand that concessions to labor - in the form of a living wage and welfare state - run the risk of ‘subsidizing political rebellion’, making mass incarceration necessary to control and contain the ‘dangerous classes’.
There is one thing and one thing only which will bring this scandal to an end: a mass social movement which demands change. Softer drugs – including cannabis – should be legalized and regulated; harder drugs should medically prescribed. Personal possession of all drugs must – must – be decriminalised. Such a movement does not have to be built from scratch, it can be created from what there already is. The Drug Policy Alliance, the NAACP, Students for Sensible Drug Policy, and the November Coalition (and these are just four groups off the top of my head) must band together to decide how to proceed. We are dealing with deeply rooted vested interests, so such a movement will almost certainly need to utilise carefully co-ordinated direct action at points. It is crucial that such a movement targets all aspects of the American political system: Congress, the Supreme Court, and the interest groups that perpetuate mass incarceration, as well as the President.
In spite of all this, I think it is strategically important that all progressives vote Obama on November 6th. He is on record as having said a debate about alternatives to prohibition is ‘appropriate’ (progress by the standards of the American Presidency), and with his ties to the black community, he is likely to be more sensitive to public pressure. But ultimately, the American political process is so deeply corrupted by Big Money that Barack Obama is merely the lesser of two evils. The political change necessary in the US will only come from grassroots activists who shout louder than the vested interests that fund the candidates. The minute after you vote, be sure to join, campaign and volunteer with various organisations that will help end the American drug war – the New Jim Crow. Then – and only then - will the United States of America be described, with any shred of accuracy, as the Land of the Free.
- The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michelle Alexander
- The Sentencing Project: http://www.sentencingproject.org/template/index.cfm
- Human Rights Watch: Punishment and Prejudice, Racial Disparities in the War on Drugs http://www.hrw.org/reports/2000/usa/