13th and The New Jim Crow

Over the past two weeks, I’ve both watched the Netflix documentary “13^th” and read the book it was based on – “The New Jim Crow” by Michelle Alexander.  I would recommend them both.  The documentary does a fine job of summarizing the book and the book offers the documentation and detail for those wanting to verify the claims of the documentary.  In short, they are important contributions to understanding systemic racism today.

They both begin with the premise that the 13^th Amendment, while ending slavery,  left open a loophole which has ultimately led to a criminal justice system that systematically relegates large numbers of people of color to second class citizenship and marginalization.  As the amendment reads, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”  Unfortunately, in a white dominated society, this loophole has allowed discrimination to move from institutional slavery to institutional incarceration.

Both the documentary and the book chronicle and document the following steps – most adopted after the end of Jim Crow – to address the “negro problem.”

• Maintain a police force largely dominated by white, poorly educated men with both intentional and latent racial bias.
• Pass laws that impact people of color disproportionally, primarily through laws aimed at drug use and distribution. (Light sentences for white cocaine users and stiff sentences for black crack users.)
• Even though drug use and distribution are MORE widespread in white populations than in populations of people of color, target the enforcement of drug laws at people of color.
• Create a bail system that frees affluent whites while less affluent people of color languish in jail.
• Underfund public defenders so people of color are seldom given adequate representation.
• Create stiff, mandatory sentencing laws that encourage people of color to plead guilty to lesser charges, even when innocent.
• Maintain laws that allow prosecutors – who are predominantly white – from excluding people of color from juries.
• Create “three strikes and you’re out” laws that can send people to prison for lengthy sentences for minor infractions.
• Build and fill prisons – often in white, rural communities – to create a large prison industry owned and run by white people. Employ primarily white, poorly educated men as guards.
• Use a mostly minority prison workforce as slave labor for industry and manufacturing.
• Upon release, create parole restrictions and continuing punishments that make it extremely difficult for ex-felons to find a job and housing, thereby sending many of them back to prison for parole violations rather than for new crimes.
• Deny ex-felons the right to vote.
• Permanently marginalize millions of people of color as second class citizens AND blame them for their plight. “If you can’t do the time, don’t do the crime.”
• Use the news and media to create a cultural perception of people of color as criminally inclined and thereby justify the disproportionate number of people of color in jails and prisons. White people are seldom portrayed as drug dealers, even though whites (6.6%) are more likely than people of color (5%) to actually deal drugs.
• Enculturate the image of people of color as criminal and deserving of greater attention and punishment so that even people of color perpetuate the myth. When asked to describe a drug dealer, 95% of people – regardless of race – describe the drug dealer as a person of color.
• When types of drug use (i.e. marijuana and opioids) becomes epidemic in white populations, legalize the use or decrease the punishments, including offering drug treatment instead of incarceration.

While all of these actions can and have been defended as non-discriminatory, when seen collectively, the intent to marginalize people of color becomes difficult to ignore or deny. While American justice is often portrayed as colorblind, both the documentary and the book expose how racial bias has influenced the establishment and growth of our present criminal justice system. They make a compelling case that much of this – while presented as a war on crime or drugs – was intentionally focused on communities of color.  The war on drugs was always a war on people of color.  The system we have was designed is giving us the result for which it was intended – one out of every three black men can expect to go to prison during their lifetime.

Finally, the documentary and book make a compelling argument for the reformation of our criminal justice system as essential to addressing systemic racism and empowering minorities economically and politically. While neither the documentary nor the book offer remedies, I have these immediate suggestions to make:

1. End all laws that deny ex-felons the right to vote. We are one of the few countries in the world with this prohibition. Denying people the right to vote after they’ve paid their “debt” to society is unjust and, within the present system, inordinately denies the vote to people of color. This would also increase the number of people of color in the jury pool.
2. Eliminate mandatory sentencing and allow judges more latitude.
3. Decriminalize most drug offenses, especially those for possession of small amounts of drugs.
4. Treat drug abuse as an important public health issue like alcohol use and abuse. Annual alcohol related deaths (29,000) far exceed drug related deaths (17,000). Yet killing someone while driving drunk has far lighter sentences than many fairly minor drug offenses.
5. Make decreasing the number of people incarcerated a national goal. Presently, the United States has more people in prison per capita (752 out of every 100,000) than any nation in the world by a substantial margin. We have 33% more than the next closest nation – Russia.

As with most issues of justice, by eliminating the racial bias within our criminal justice system, we also create a more equitable and just society for all. Watching the documentary and reading the book has opened my eyes and ears to the racially bias code in much of the political rhetoric around crime and drugs.  Calls for law and order – in the 1870s, 1960s and today – are seldom about law and order.  They were and are about race and maintaining a system that protects white power.

The documentary ends with these words by Bryan Stevenson, “People say all the time, ‘I don’t understand how people could have tolerated slavery. How could people have gone to a lynching and participated in that?  If I was living at that time, I would have never tolerated anything like that.’ And the truth is, we are living at this time.  And we are tolerating it.”