Is Jim Crow back? Are African Americans, particularly African American men, once more suffering systematic discrimination on the basis of race -- a discrimination that locks them out of equal rights and basic citizenship?
The question is incendiary -- and seems unreal. This is the post-racial America, where an African American can be elected president. Overt expression of racism is no longer socially acceptable. So, how could anyone allege the revival of Jim Crow laws, the laws that locked blacks into a permanent underclass under segregation?
Listen to the hard logic offered by Michelle Alexander, a law professor and author of The New Jim Crow: Mass Incarceration in an Age of Colorblindness. Professor Alexander makes the following points:
• More African Americans are under correctional control today -- in prison or jail, on probation or parole -- than were enslaved in 1850, a decade before the Civil War began.
• More black men were disenfranchised in 2004 than in 1870, the year the 15th Amendment was ratified, prohibiting laws that explicitly deny the right to vote on the basis of race.
• More than half of working-age African-American men in major urban areas -- according to one report, as much as 80 percent in Chicago -- have criminal records and are thus subject to legalized discrimination.
These staggering figures aren't because African Americans are more prone to violence and crime. As Alexander points out, incarceration rates are not related to the rate of criminal activity. Crime is at a relatively low level in recent years, but incarceration has remained high.
The primary reason for our high rates of incarceration is the war on drugs. The courts have given police a virtual exemption from the Fourth Amendment in the war on drugs. This freedom to stop, search, seize and arrest clearly has discriminatory effects.
This drug war has been waged intensively almost completely in communities of color, even though studies show that drug use is remarkably similar across racial lines. The use of drugs isn't much different, but young African American men are stopped more often, searched more often, arrested more often and prosecuted more often.
This isn't about drug-related violence or even about major traffickers. Alexander cites studies that in 2005, for example, four out of five drug arrests were for possession, while only one out of five were for sales. Most people in state prison for drug offenses have no history of violence or significant selling activity. Most of the increase in incarcerated drug offenders came from marijuana use, a drug widely available on campuses across America.
These are stunning facts. The U.S. has developed a prison-industrial complex -- with private prison companies listed on the stock exchange -- that, in Professor Alexander's words, "locks an extraordinary percentage of our population -- a group largely defined by race -- into permanent, second-class status for life."
Yet, this system is largely immune from constitutional challenge. The courts have decided that overwhelming evidence of the discriminatory effect of policies -- the fact that African Americans are deprived of their rights for life in disproportionate numbers -- is not sufficient. Proof of conscious, intentional racial bias in intent and action must be shown.
The result is shocking -- yet is accepted largely in silence. The drug war, the court system, the privatized prison-industrial complex have provided the means of disenfranchising African Americans in large number.
This has implications in elections, in juries, and in school and poverty subsidies. Clearly it is time to end the silence -- and confront the reality.