Are We Done Punishing Black

Men?
IN THE LAST couple of years, important books such as On
the Run, Just Mercy, and Ghettoside have provided insights
on the odds stacked against black men. They have stripped
away decades-old hypotheses about race relations and
refocused the lens so we can better understand the
devastating impact of racism on black communities across
the United States. Already in 2012, legal scholar Michelle
Alexander had provided a comprehensive map to this
territory in The New Jim Crow, a book that bears looking at
again. The author traces the evolution of racism since
slavery and brings to light the covert ways in which it has
evolved. She argues that the War on Drugs became, not at
all accidentally, a systemic scourge that is largely
responsible for the explosion of the prison population from
under 350,000 people in 1972 to 2 million people today, a
majority of whom are blacks and Latinos. Alexander not only
challenges the notion that we live in a color-blind society, but
effectively shatters it.

Like many before her, Alexander suggests it is a mistake to

assume that Barack Obama’s presidency is the nation’s
“triumph over race.” During a campaign stop at a Chicago
church, Obama all but chided black men for not being better
fathers. He acknowledged that too many black fathers were
missing from their families’ lives and homes, without
addressing where those fathers might be found — in prisons.
In a talk I attended recently, Princeton professor Keeanga-
Yamahtta Taylor said that black politicians who transcend
race tend to scold the impoverished black population (in
ways non-blacks would never get away with) as though their
poverty were their fault and not worsened by the many
circumstances that disfavor them. Bill Cosby, of all people,
has said that black men “have no shame.” It turns out they
have plenty. Alexander recounts how black communities
struggle to cope with the stigma of incarceration, and often
hide the fact that a family member is behind bars from
neighbors and co-workers.

The War on Drugs has created a new racial caste system in

the country, Alexander explains, and the 10s of millions of
black men with a criminal record are the “undercaste.” Mass
incarceration not only continues the legacy of racism and
Jim Crow laws, but it has also become the new Jim Crow.
She goes as far as to call incarcerated black men
“untouchables” — at least to the extent that no politician will
speak for them: the black criminal is the most despised
group in our society.

Politicians have long spoken to their electorate in coded

language. Republican candidate Richard Nixon made “law
and order” a central theme of his campaign. He stoked the
country’s anxieties when he spoke of the “lawlessness of
civil rights activists” and about “domestic violence”;
privately, Nixon “reportedly remarked with glee” that his
hard-hitting TV ad about the problem of order in the United
States was “all about those damn Negro-Puerto Rican
groups out there.”

In the ’70s, black men in urban areas experienced high levels

of unemployment as manufacturing jobs were steadily lost
overseas. A decade earlier, Martin Luther King Jr. had
warned that the United States’s gains in race relations thus
far had come at “bargain basement prices” and that further
gains would require economic measures to provide such
basics as jobs and housing. King, influenced by M. K. Gandhi
who had championed the Indian “untouchables,” also
understood the importance of uplifting both the black and
the white poor, so that impoverished whites wouldn’t turn
against their black counterparts, as had happened in the
past.

But instead of economic stimulus measures, Ronald Reagan

found it more politically expedient to be tough on crime. He
translated Nixon’s race-coded rhetoric into action. At a time
when drugs were an insignificant contributor to violent crime
in the country, the Reagan administration launched the War
on Drugs, an initiative that bewildered local police
departments at the time, but was lapped up by the media
who splashed headlines about “welfare queens,” “crack
babies,” and predatory black men:

In September 1986, with the media frenzy at full throttle, the

House passed legislation that allocated $2 billion to the
antidrug crusade […] Among other harsh penalties, the
legislation included mandatory minimum sentences for the
distribution of cocaine, including far more severe
punishment for distribution of crack — associated with
blacks — than powder cocaine, associated with whites […]
The War on Drugs, cloaked in race-neutral language, offered
whites opposed to racial reform a unique opportunity to
express their hostility toward blacks and black progress,
without being exposed to the charge of racism.

Over the next three decades, generations of black and

brown men would be put away for drug possession — even
for small amounts of marijuana — and for drug dealing. The
resulting mass incarceration would tear apart the fabric of
close-knit families and communities, and create a haunting
legacy of helplessness and shame in black neighborhoods
that were already stricken with unemployment. Alexander
writes that Reagan’s successor, George Bush Sr., who also
employed “implicit racial appeals” in his election campaign,
embraced “the drug war with great enthusiasm” once he
was in office.
More black people are in jail for the crime of possessing or
dealing cocaine, even though white people commit these
crimes significantly more frequently than blacks. Alexander
notes that at least 10 percent of Americans violate drug laws
annually “and people of all races engage in illegal drug
activity at similar rates.” Recently, a heroin epidemic has
swept through parts of the country, impacting young white
adults from mainly middle-class families. The overwhelming
response to the addicts has been compassionate. Even the
police, for the first time, are focused on saving the lives of
heroin addicts — as they should be — and certainly not on
locking them up. But how can we square this double
standard?

The police generally deny racial profiling. But it is well known

that black neighborhoods are disproportionately targeted for
monitoring and raids. Alexander writes that black men are
also more likely than their white counterparts to be rerouted
to the federal court system where the mandatory sentencing
laws are harsher. These youths enter a Kafkaesque maze
where a defendant has meager access to legal aid, and what
legal aid there is, is spread thin among too many defendants
to be effective. This is not the romantic world of TV shows,
where, when a defendant wants to see a lawyer, legal aid
materializes almost instantly.
Prosecutors have seemingly unlimited power in the criminal
justice system; they can strike (usually) black jurors because
a man, for instance, has a “goatee type beard.” And the
Supreme Court has enabled this extraordinary breadth of
discretion and lack of scrutiny:

In Purkett v. Elm, in 1995, the Supreme Court ruled that any

race-neutral reason, no matter how silly, ridiculous, or
superstitious, is enough to satisfy the prosecutor’s burden of
showing that a pattern of striking a particular racial group is
not, in fact, based on race.

In the last three decades, the Supreme Court’s decisions

seem to have consistently not protected black men from all-
white juries or racially charged incarceration:

In 1987, when media hysteria regarding black drug crime was

at fever pitch and the evening news was saturated with
images of black criminals shackled in courtrooms, the
Supreme Court ruled in McCleskey v. Kemp that racial bias in
sentencing, even if shown through credible statistical
evidence, could not be challenged under the Fourteenth
Amendment in the absence of clear evidence of conscious,
discriminatory intent […] The real issue at hand was whether
— and to what extent — the Supreme Court would tolerate
racial bias in the criminal justice system as a whole. The
Court’s answer was that racial bias would be tolerated —
virtually to any degree — so long as no one admitted it.
Adolph Lyons was one of numberless young black men who
have been stopped by the LAPD while driving. Lyons got out
of his car and complied with the police pat down, but when
he complained that the car keys he was holding were
causing him pain, the police put him in a chokehold. Lyons
lost consciousness and suffered permanent damage to his
larynx. As Alexander explains, “Lyons sued the City of Los
Angeles for violation of his constitutional rights and sought,
as a remedy, a ban against future use of the chokeholds.” His
case eventually reached the Supreme Court, where it was
dismissed. The Supreme Court ruled that “Lyons lacked
‘standing’ to seek an injunction against the deadly practice.
In order to have standing, the Court reasoned, Lyons would
have to show that he was highly likely to be subject to a
chokehold again.” That was before instances of police
brutality against black men exploded into public view in
recent years. Alexander argues that the Supreme Court has
closed the doors to claims of racial bias at every stage of the
criminal justice process, “from stops and searches to plea
bargaining and sentencing.”

Alexander may be right to suggest that mass incarceration

be considered a civil rights or a racial justice issue rather
than a criminal justice issue. The root of today’s police
brutality traces back to the end of slavery, when anxiety
among plantation owners skyrocketed — what would a great
mass of free, angry black men do to them? A new system of
control was needed. “As expressed by one Alabama planter:
‘We have the power to pass stringent police laws to govern
the Negroes — this is a blessing — for they must be
controlled in some way or white people cannot live among
them.’”

Alexander cites the work of author Howard Winant to argue

that race has become a modern concept. He writes: “Only in
the past few centuries, owing largely to European
imperialism, have the world’s people been classified along
racial lines.”

Here, in America, the idea of race emerged as a means of

reconciling chattel slavery — as well as the extermination of
American Indians — with the ideals of freedom preached by
whites in the new colonies.

The concept of race is divisive, to say the least; historically, it

has allowed even well-meaning people to adopt grossly
divergent double standards. Alexander argues that today,
our indifference toward the incarceration of black men may
be more damaging than we realize. Where, for instance, is
the national conversation about whether we should choose
to put additional resources into affordable housing or prison
construction? The expert opinion in the ’70s was that no new
institutions should be built to imprison people because
studies showed that such institutions increase the incidence
of crime instead of decreasing it. Studies also recommended
that such institutions for juveniles be closed. Instead, we
took a different approach:

The dramatic shift toward punitiveness resulted in a massive

reallocation of public resources […] [F]unding that had once
been used for public housing was being redirected to prison
construction. During Clinton’s tenure, Washington slashed
funding for public housing by $17 billion (a reduction of 61
percent) and boosted corrections by $19 billion (an increase
of 171 percent), “effectively making the construction of
prisons the nation’s main housing program for the urban
poor.”

There are 2 million people in prison, but there are many more
— 65 million — who have a criminal record, which can
exclude them from public assistance. That includes “tens of
millions of Americans who have been arrested but never
convicted of any offense, or convicted only of minor
misdemeanors, and they too are routinely excluded from
public housing.” You don’t have to serve time, you only need
to be in the database in order to be treated like a second-
class citizen. Alexander gives examples of people who were
at a friend’s house when a drug raid occurred. That is
grounds enough to brand them with a criminal record and
cast a dark shadow over all future employment
opportunities, close the door to public assistance, and even
strip them of their constitutional right to vote (for former
prisoners, depending on the state, it can take several years
and the payment of prohibitive fines and court costs to get
voting rights restored).

In On the Run: Fugitive Life in an American City (2014), Alice

Goffman brought this conundrum to life. Goffman illustrated
how when a young black man has entered the criminal
justice system (sometimes for a crime as minor as a
schoolyard fight), the system traps him in a maze of prison,
parole, and probation, all but zeroing out his future job
prospects. The book was initially well received, but the
sociology community, perhaps in a case of schadenfreude,
defocused the attention from this important work by using it
to discuss the question of who is entitled to write about
whom (Goffman is a white woman), or whether she
committed a crime herself by accompanying a subject in a
car when the subject’s motive was to avenge the gang-
related killing of a mutual friend.

After Alexander’s measured assessment of mass

incarceration, it is no longer possible to look the other way.
She urges us to be compassionate and to care about our
country’s mass incarceration problem. She suggests that
even civil rights groups have lost touch with the black
community and its true needs, and she urges those groups
to move the focus away from issues such as affirmative
action and instead build a grassroots movement to address
mass incarceration. Inexplicably, President Obama has done
little to alleviate this tragic problem, except to sign a law that
reduces the severity of the punishment associated with the
distribution of crack compared to powder cocaine. A
grassroots movement may well be the best hope for black
communities for whom, in the end, a black president was not
able to provide hope.

Priyanka Kumar is an author and a filmmaker. She has a

degree in International Relations from the University of
Toronto.