Prison, Justice Kennedy, The New Jim Crow

By Dwayne Betts

A few weeks ago I was a visitor at Arizona State University. I gave a few talks, spoke at the law school and went out to a detention center to speak with some young folks. I talked with the guards and staff that worked at the center. One of the ladies told me that Arizona was under severe budget duress and was letting kids go to save money. They'd already cut a number of beds, over 200 jobs and were talking about more cuts, talking about scraping the state run juvenile detention centers altogether and forcing the counties to manage their own systems. 


All over the country we have Arizona's. Check out this from a 2/15/10 NY Times editorial


The overall tone of Justice Kennedy's address to the Pepperdine University School of Law was "courtly and humorous," according to The Los Angeles Times. He turned more serious, however, on the subject of incarceration. Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.

Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law's sponsor, he said, is the correctional officers' union, "and that is sick."



This is the context in which I've been reading Michelle Alexander's book The New Jim Crow for a few weeks. What I realize though is that Justice Kennedy is looking at the problem, as many of us are, while Alexander is attempting to diagnose the problem. She writes 


"mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow."

I've come to see myself as liberal. I find myself in rooms with prosecutors, judges, people in legislature - and sometimes they care about my opinions about the justice system. Always they expect me to say a certain thing - and I think many of my friends would expect me to agree with Alexander. But I think her metaphor (comparing incarceration to Jim Crow) fails. Which is not to say her book isn't rich with important information. She paints an accurate description of how incarceration leads to a sort of caste system for the once incarcerated upon release. (Many employers won't hire you, certain neighborhoods won't have you, some colleges won't admit you, you can't vote, etc.) But I think because incarceration starts with crime - it's no appropriate way to link it to slavery, Jim Crow, sharecropping or any other tragic era in this nation's history. And my point here is that to argue that there is an underlying motivation for the large numbers of black males incarcerated and that that motivation is systemic racism - is tenuous at best, and dangerous at worst. (It too easily absolves black males from the responsibility of their actions, and it fails to take into account the interlocking systems (education, health care, economic) that are also failing and contribute to high incarceration rates). I just refuse to believe a racial ideology is what gave rise to the myriad of laws (varying from state to state) that has led us to the disaster that is our criminal justice system.

This post is partly about the premise of Alexander's book, and partly about the suffocating effect of some labels. Conversations about the justice system get shut down as liberals and conservatives have a line they must to tow. (So congressman like Bobby Scott in Virginia seem to get marginalized, in that you don't see coverage of his bills or the passing of is bills, that have for some time looked to counteract the rising incarceration rates without sacrficing public safety). In California, over say the past dozen or so years, the budget for prisons has steadily increased as the budget for education (higher education, in particular) has been reduced. It was something that advocates watched happen for years, and only now that pocket books are hurting is it a matter of importance - and even now it has taken the courts to say "reduce your prison populations" to get things moving. Part of the impasse has always been the language with which we approach the problem. Throughout Alexander's book you get an abundance of facts and quotes that alone make you wonder about the insanity of the system. Take this one from Michael Tony's "Thinking About Crime:" "Governments decide how much punishment they want, and these decisions are in no simple way related to crime rates." 

That quote is part of what prompts our need to identify the governments reasoning behind these decisions. The abundance. Utter abundance of black males in prison and somehow connected to the justice system is what prompts Alexander's comparison (Jim Crow/Prison) - but somewhere the leap from one thing to the other fails us. That is the leap from recognizing there is a reason, to the reason assigned, fails us. It leads to conspiracy. I'm afraid of conspiracy. And this is not to speak negatively of The New Jim Crow - it's to ask how does Alexander meet Justice Kennedy and advocate for change when he is a part of the problem, vis-a-vis his being a part of the government? How do I meet prosecutors, who's job it is to get the toughest sentences possible - if I begin the conversation with "you look just like Willie Lynch?"

Later in The New Jim Crow, Alexander says "Of all the reasons we fail to know the truth about mass incarceration, though, one stands out: a profound misunderstanding regarding how racial oppression actually works." I'm not sure if that's the only reason - and I am willing to admit it's one reason - but another reason is likely the historic difficulty of our nation to confront its racial history in a real nuanced way that breaks down to something more than heroes and villains and our inability (in public dialogue) to recognize the nuances of any given problem, and acknowledge them.

It's only fair though, to add this caveat - I haven't finished the book, and may very well be wowed by book's end. This post, is really aimed at looking at the failures of the system and the failures of seeing it all as a product of racism.

This article available online at:

http://www.theatlantic.com/national/archive/2010/02/prison-justice-kennedy-the-new-jim-crow/36192/