THE NEW JIM CROW

The New Jim Crow Michelle Alexander December 6, 2010

How mass incarceration turns people of color into permanent second-class citizens

The first time I encountered the idea that our criminal-justice system functions much like a racial caste system, I dismissed the notion. It was more than 10 years ago in Oakland when I was rushing to catch the bus and spotted a bright orange sign stapled to a telephone pole. It screamed in large, bold print: "The Drug War is the New Jim Crow." I scanned the text of the flyer and then muttered something like, "Yeah, the criminal-justice system is racist in many ways, but making such an absurd comparison doesn't help. People will just think you're crazy." I then hopped on the bus and headed to my new job as director of the Racial Justice Project for the American Civil Liberties Union of Northern California.

What a difference a decade makes. After years of working on issues of racial profiling, police brutality, and drug-law enforcement in poor communities of color as well as working with former inmates struggling to "re-enter" a society that never seemed to have much use for them, I began to suspect that I was wrong about the criminal-justice system. It was not just another institution infected with racial bias but a different beast entirely. The activists who posted the sign on the telephone pole were not crazy, nor were the smattering of lawyers and advocates around the country who were beginning to connect the dots between our current system of mass incarceration and earlier forms of racial control. Quite belatedly, I came to see that mass incarceration in the United States has, in fact, emerged as a comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow. What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify severe inequality. In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as justification for discrimination, exclusion, or social contempt. Rather, we use our criminal-justice system to associate criminality with people of color and then engage in the prejudiced practices we supposedly left behind. Today, it is legal to discriminate against ex-offenders in ways it was once legal to discriminate against African Americans. Once you're labeled a felon, depending on the state you're in, the old forms of discrimination -- employment discrimination, housing discrimination, denial of the right to vote, and exclusion from jury service -- are suddenly legal. As a criminal, you have scarcely more rights and arguably less respect than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

More than two million African Americans are currently under the control of the criminal-justice system -- in prison or jail, on probation or parole. During the past few decades, millions more have cycled in and out of the system; indeed, nearly 70 percent of people released from prison are re-arrested within three years. Most people appreciate that millions of African Americans were locked into a second-class status during slavery and Jim Crow, and that these earlier systems of racial control created a legacy of political, social, and economic inequality that our nation is still struggling to overcome. Relatively few, however, seem to appreciate that millions of African Americans are subject to a new system of control -- mass incarceration -- which also has a devastating effect on families and communities. The harm is greatly intensified when prisoners are released. As criminologist Jeremy Travis has observed, "In this brave new world, punishment for the original offense is no longer enough; one's debt to society is never paid."

The scale of incarceration-related discrimination is astonishing. Ex-offenders are routinely stripped of essential rights. Current felon-disenfranchisement laws bar 13 percent of African American men from casting a vote, thus making mass incarceration an effective tool of voter suppression -- one reminiscent of the poll taxes and literacy tests of the Jim Crow era. Employers routinely discriminate against an applicant based on criminal history, as do landlords. In most states, it is also legal to make ex-drug offenders ineligible for food stamps. In some major urban areas, if you take into account prisoners -- who are excluded from poverty and unemployment statistics, thus masking the severity of black disadvantage -- more than half of working-age African American men have criminal records and are thus subject to legalized discrimination for the rest of their lives. In Chicago, for instance, nearly 80 percent of working-age African American men had criminal records in 2002. These men are permanently locked into an inferior, second-class status, or caste, by law and custom. The official explanation for this is crime rates. Our prison population increased sevenfold in less than 30 years, going from about 300,000 to more than 2 million, supposedly due to rising crime in poor communities of color.

Crime rates, however, actually have little to do with incarceration rates. Crime rates have fluctuated during the past 30 years and today are at historical lows, but incarceration rates have consistently soared. Most sociologists and criminologists today will acknowledge that crime rates and incarceration rates have moved independently of each other; incarceration rates have skyrocketed regardless of whether crime has gone up or down in any particular community or in the nation as a whole.

What caused the unprecedented explosion in our prison population? It turns out that the activists who posted the sign on the telephone pole were right: The "war on drugs" is the single greatest contributor to mass incarceration in the United States. Drug convictions accounted for about two-thirds of the increase in the federal prison system and more than half of the increase in the state prison system between 1985 and 2000 -- the period of the U.S. penal system's most dramatic expansion.

Contrary to popular belief, the goal of this war is not to root out violent offenders or drug kingpins. In 2005, for example, four out of five drug arrests were for possession, while only one out five were for sales. A 2007 report from Sentencing Project found that most people in state prison for drug offenses had no history of violence or significant selling activity. Nearly 80 percent of the increase in drug arrests in the 1990s, when the drug war peaked, could be attributed to possession of marijuana, a substance less harmful than alcohol or tobacco and at least as prevalent in middle-class white communities and on college campuses as in poor communities of color.

The drug war, though, has been waged almost exclusively in poor communities of color, despite the fact that studies consistently indicate that people of all races use and sell illegal drugs at remarkably similar rates. This is not what one would guess by peeking inside our nation's prisons and jails, which are overflowing with black and brown drug offenders. In 2000, African Americans made up 80 percent to 90 percent of imprisoned drug offenders in some states.

The extraordinary racial disparities in our criminal-justice system would not exist today but for the complicity of the United States Supreme Court. In the failed war on drugs, our Fourth Amendment protections against unreasonable searches and seizures have been eviscerated. Stop-and-frisk operations in poor communities of color are now routine; the arbitrary and discriminatory police practices the framers aimed to prevent are now commonplace. Justice Thurgood Marshall, in a strident dissent in the 1989 case of Skinner v. Railway Labor Executive Association, felt compelled to remind the Court that there is "no drug exception" to the Fourth Amendment. His reminder was in vain. The Supreme Court had begun steadily unraveling Fourth Amendment protections against stops, interrogations, and seizures in bus stops, train stations, schools, workplaces, airports, and on sidewalks in a series of cases starting in the early 1980s. These aggressive sweep tactics in poor communities of color are now as accepted as separate water fountains were several decades ago.

If the system is as rife with conscious and unconscious bias, many people often ask, why aren't more lawsuits filed? Why not file class-action lawsuits challenging bias by the police or prosecutors? Doesn't the 14th Amendment guarantee equal protection of the law?

What many don't realize is that the Supreme Court has ruled that in the absence of conscious, intentional bias -- tantamount to an admission or a racial slur -- you can't present allegations of race discrimination in the criminal-justice system. These rulings have created a nearly insurmountable hurdle, as law-enforcement officials know better than to admit racial bias out loud, and much of the discrimination that pervades this system is rooted in unconscious racial stereotypes, or "hunches" about certain types of people that come down to race. Because these biases operate unconsciously, the only proof of bias is in the outcomes: how people of different races are treated. The Supreme Court, however, has ruled that no matter how severe the racial disparities, and no matter how overwhelming or compelling the statistical evidence may be, you must have proof of conscious, intentional bias to present a credible case of discrimination. In this way, the system of mass incarceration is now immunized from judicial scrutiny for racial bias, much as slavery and Jim Crow laws were once protected from constitutional challenge.

As a nation, we have managed to create a massive system of control that locks a significant percentage of our population -- a group defined largely by race -- into a permanent, second-class status. This is not the fault of one political party. It is not merely the fault of biased police, prosecutors, or judges. We have all been complicit in the emergence of mass incarceration in the United States. In the so-called era of colorblindness, we have become blind not so much to race as to the re-emergence of caste in America. We have turned away from those labeled "criminals," viewing them as "others" unworthy of our concern. Some of us have been complicit by remaining silent, even as we have a sneaking suspicion that something has gone horribly wrong. We must break that silence and awaken to the human-rights nightmare that is occurring on our watch. We, as a nation, can do better than this.

BRENDA HARDAWAY VICTIM OF POLICE BRUTALITY

Impossible choices: Brenda Hardaway pleads guilty to assault in the second degree

Submitted by T. Forsyth on Sat, 2014-01-18 16:46

On Friday, January 17, 2014, Brenda Hardaway, between five and seven days past her due date, stood before state Supreme Court Justice Francis A. Affronti and plead guilty to felony second degree assault with the understanding that she would get a reduced sentence of six months in jail and five years of probation.

The Friday appearance was meant to be a Huntley hearing before the start of a trial on February 10, until Assistant District Attorney Brian Green said that he had spoken to several parties—his boss—District Attorney Sandra Doorley, the injured officer, Justice Affronti, and the defendant's attorney Eric Teifke—and felt that “a resolution in this matter is appropriate.”

Ms. Hardaway's case went viral on YouTube, when a video surfaced on August 27, 2013. The video showed an RPD officer—Lucas Krull—attempting to arrest her after it was alleged that she interfered with the arrest of her younger brother (a minor) Romengeno Hardaway. The video starts with her screaming that she's pregnant; officer Krull is behind her attempting to handcuff her. Eventually, she is thrown into a railing, punched in the back of the head multiple times, dropped to the ground belly first, and then kneed by the officer. While she is being attacked, her brother can be seen in the background with three or four officers attempting to subdue him. At one point during this attack, Romengeno expressed at a later date, the side of his head was smashed against a railing with an exposed nail causing the nail to be driven into the side of his temple. The video ends with Brenda and Romengeno being lead away in handcuffs with family members and friends protesting to more than 10 police officers. What began as a domestic dispute between family members escalated into a full-scale RPD brawl against the Hardaways.

Part of the plea deal involves Ms. Hardaway explaining and acknowledging her actions on the day in question. After Justice Affronti checked in with Ms. Hardaway about her first, late pregnancy, the judge acknowledged that ADA Green's statements in favor of a resolution were accurate. He said that he had had conversations with the different parties on December 17, 2013. He then posed a question to ADA Green: “I'm also asking, at this time, about the police officer. What is his medical status?” Earlier in the proceeding, the judge identified the officer as “the victim in this case.” ADA Green replied, “He's on light duty right now—he has a shoulder injury and is scheduled for exploratory surgery because it has not healed right.”

Justice Affronti acknowledged the statement and moved on. “The court is deciding whether it is legally and procedurally appropriate to allow this resolution.” Mr. Teifke reminded the judge that aside from the incident on August 27, Ms. Hardaway has no prior criminal record and that she has had no interactions with law enforcement since. The judge agreed with Mr. Teifke's comments and then proceeded to ask Ms. Hardaway questions about her age and schooling; if she knew about the hearing today; that her case could go to trial before 12 people that would decide the outcome and where she would not be obligated to testify, offer evidence, or call witnesses. She acknowledged all of the questions asked of her. He asked if she was under the influence of alcohol or drugs. She responded in the negative. “If you tell me today that you are guilty of assault in the second degree then you won't have a trial,” the judge said. “Do you understand that?” “Yes,” Ms. Hardaway said. The judge acknowledged that she was “clear minded” and able to enter into a plea deal. “Do you know what your sentence will be?” the judge asked. “Yes. Six months in Monroe County and five years probation,” she responded. “What happened on August 27, 2013 Ms. Hardaway? What did you do? I want you to be as specific as possible,” the judge said. “The officers were trying to arrest my little brother and i got involved with the arrest and I had pepper spray on me. I tried to stop the arrest,” she started. “Wait a minute,” said Justice Affronit, “Where did it happen?” “It happened at 384 Selye Terrace.” “And where did it happen? Was it inside that address? Outside?” “Outside in the front yard.” “What is your brother's name?” “Romengeno Hardaway.” “Go on Ms. Hardaway.” “I was trying to get them off my brother. I was trying to break them up. I didn't do anything with the pepper spray—we were grabbing and pulling at each other as I tried to break up the fight.” “Did you hit or strike one of the officers, Ms. Hardaway?” “I did not strike a police officer,” she said. She continued, “As I tried to break the fight up I was pulled away from them and I fell to the ground. When I got up, then they arrested me. When the two of us fell to the ground, that's when the shoulder injury happened to the officer. I was pushing away from him—I never hit him. Could I show you?” she asked. “Assault in the second degree requires that we know what if any part of your body came in contact with the officer causing injury,” said the judge. “This needs to be on the record, so you cannot show me.” “I was telling him that I was five months pregnant and I was trying to get away from him.” Mr. Teifke interjected here, “When her arms were pulled behind her back, she complained about the pain and then proceeded to try to bring her arms forward when the pain did not cease. At that point, they were moving forward together and fell to the ground. That's when the injury to the officer occurred. Assault in the second degree requires only that an officer was injured without any indication of her intent to injure. We do not dispute the injuries.” The judge accepted this. ADA Green then asked Ms. Hardaway, “how do you plead to assault in the second degree?” “Guilty,” she said.

Her plea was entered into the record. “This matter will be adjourned until her sentencing which will be on March 18, 2014, at 9:30AM,” said the judge. Justice Affronti then looked at Ms. Hardaway and said, “Between now and March 18, you are to have contact with the Monroe County probation office. You must make all your appointments with them so that I can have their report on March 18. Between now and then you are not to be arrested for any violation of the law. If you don't keep your appointments or have involvement with the police, I can't keep my promise regarding your sentence.” Court was adjourned.

After court I asked Mr. Teifke about the plea deal. “It's a deal she can live with. Going to trial always has risks and in this case, all the prosecution has to prove to get a conviction for assault in the second degree, is that the officer was injured during the arrest.” He told me that the statue is “extremely police friendly” and joked that it seems like every year a new type of civil servant is added to the list of the protected. Reading the statute, you get a sense of that: sanitation workers, first responders, police officers, and everyone in between is protected by this law. He also told me that the maximum sentence is seven years in jail. “You could be running from the police, two blocks ahead of them, and one of the cops chasing you trips and wrecks his elbow. Once arrested, you can be charged with assault in the second degree because that's the way the statue is written,” said Mr. Teifke. “There doesn't have to be intent to injure—just that an injury has occurred.”

The plea deal says six months of jail and five years of probation. Mr. Teifke thinks that she will be out in two months because of time served and good behavior. There was no misdemeanor offered by the DA, so his client went with the next best thing—pleading to a felony conviction with minimal time in jail. Part of that decision was influenced by her impending delivery.

Impossible choices Michelle Alexander in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness makes the argument that “mass incarceration in the United States has, in fact, emerged as a comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.” Under this “well-disguised system” people are forced to make impossible choices that may lessen their bodily punishment now (shortened jail sentences), but in the end, creates a life-time of punishment (a felony conviction) where there is no way to atone for one's transgressions.

Eric Teifke, a lawyer with the Monroe County Public Defender Office and Ms. Hardaway's lawyer, told me that a trial was risky and that this was a deal that Ms. Hardaway could live with. It seems to me that this is an impossible choice: have your child and then go to jail for two months with a felony conviction, or take your case to trial where your chances of being found not guilty are slim compounded by a heavy amount of anxiety that is neither good for you nor your newborn. On top of that, if you are in fact found guilty, be prepared to be sentenced to a potential seven years in jail with a felony conviction.

The way Justice Affronti talks about police being victims in this case makes me think he would not have much compassion for Ms. Hardaway. Neither choice is appealing when police go crazy by storming the front lawn of the Hardaways' home, escalating instead of de-escalating a verbal dispute, and then arresting a minor after smashing his head into a post driving a nail into his temple and then punching and dropping a pregnant woman to the ground. This kind of insanity would never fly in the suburbs of Rochester, NY so why is it allowed to flourish in the city? (It's a rhetorical question; one doesn't have to look far beyond race and class.)

The life-time punishment of being convicted of a felony is listed in Alexander's book as well as the article published in The American Prospect: http://prospect.org/article/new-jim-crow-0 ...we use our criminal-justice system to associate criminality with people of color and then engage in the prejudiced practices we supposedly left behind. Today, it is legal to discriminate against ex-offenders in ways it was once legal to discriminate against African Americans. Once you're labeled a felon, depending on the state you're in, the old forms of discrimination -- employment discrimination, housing discrimination, denial of the right to vote, and exclusion from jury service -- are suddenly legal. As a criminal, you have scarcely more rights and arguably less respect than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

She calls the system colorblind because instead of it being an explicitly racially discriminatory system, it is predicated on one's criminal status—and it doesn't just happen to be a coincidence that people most targeted by law enforcement are people of color. (Thanks, War on Drugs!) The lack of confidence in the public defender's office by many people of color I've spoken to is of high concern. A lot of folks think the judges, district attorneys, and public defenders collude to get those charged with crimes—though innocent until proven guilty—convictions and jail time. This does not bode well for an office that is supposed to fight and advocate for their court-appointed clients. I've also had conversations with lawyers who think that part of the problem stems from the county's lack of funding and staffing for both offices. In the end though, it is the people who have to make the impossible choices, not their lawyers. This has to end.

Coming up Romengeno Hardaway, also arrested on August 27 and charged with disorderly conduct and resisting arrest, has court before Judge Thomas Rainbow Morse on January 27, at 9:30AM. Brenda Hardaway's sentencing is March 18 at 9:30AM before Justice Affronti. Enough is enough.