The Common Good
February 2011

Cruel and Unequal

by Michelle Alexander | February 2011

Blacks and whites use drugs at about the same rate, yet African Americans are 10 times as likely to be imprisoned for drug offenses. The unbalanced effects of the 'war on drugs.'

So much about our racial reality today is little more than a mirage. The promised land of racial equality quivers just out of our reach in the barren desert of our new, "colorblind" political landscape. It looks so good from a distance: Barack Obama, our nation’s first black president, standing behind a podium in the Rose Garden looking handsome, dignified, and in charge. Flip the channel and there’s the whole Obama family exiting Air Force One, waving to the crowd -- a gorgeous black family living in the White House, cheered by the world.

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Drive a few blocks from the White House and you find the other America. You find you're still in the desert, dying of thirst, wondering what wrong turn was made and how you managed to miss the promised land, though you reached for it with all your might.

A vast new racial undercaste now exists in America, though their plight is rarely mentioned. Obama won't mention it; the Tea Party won't mention it; media pundits would rather talk about anything else. The members of the undercaste are largely invisible to those of us who have jobs, live in decent neighborhoods, and zoom around on freeways, passing by the virtual and literal prisons in which they live.

But here are the facts: There are more African-American adults under correctional control today -- in prison or jail, on probation or parole -- than were enslaved in 1850, a decade before the Civil War began. In major urban areas such as Chicago, Oama’s hometown, the majority of working-age African-American men have criminal records and are thus subject to legalized discrimination for the rest of their lives. Millions of people in the United States, primarily poor people of color, are denied the very rights supposedly won in the civil rights movement: the right to vote, to serve on juries, and to be free from discrimination in employment, housing, access to education, and public benefits. Branded "criminals" and "felons," such people now find themselves relegated to a permanent second-class status. They live in a parallel social universe: the other America, where they will stay for the rest of their lives.

We, as a nation, are in deep denial about how this came to pass. On the rare occasions when the existence of "them" -- the others, the ghetto dwellers, those locked up and locked out -- is publicly acknowledged, standard excuses are trotted out. We're told black culture, bad schools, poverty, and broken homes are to blame. Almost no one admits: We declared war. We declared a war on the most vulnerable people in our society and then blamed them for the wreckage.

And yet that is precisely what we did. The so-called War on Drugs has driven the quintupling of our prison population in a few short decades. The vast majority of the startling increase in incarceration in America is traceable to the arrest and imprisonment of poor people of color for nonviolent, drug-related offenses. Families have been torn apart, and young lives shattered, as parents grieve the loss of loved ones to the system, often hiding their grief under a cloak of shame.

Politicians claim that the enemy in this war is a thing -- drugs -- not a group of people. The facts prove otherwise.

Studies consistently show that people of all colors use and sell drugs at remarkably similar rates, yet in some states African-American men have been admitted to prison on drug charges at a rate up to 57 times higher than white men. In some states, 80 to 90 percent of all drug offenders sent to prison have been African Americans. The rate of Latino imprisonment has been staggering as well. Although the majority of illegal drug users and dealers are white, three-fourths of all people imprisoned for drug offenses have been black and Latino.

This war has been waged almost exclusively in poor, ghetto communities. For those who are tempted to imagine that the goal of the war has been to root out violent offenders or drug kingpins, think again. Federal funding flows to those state and local law enforcement agencies that dramatically boost the sheer volume of drug arrests; it’s a numbers game. Agencies don't get rewarded for bringing down drug bosses or arresting violent offenders. They're rewarded in cash for arresting people en masse. Ghetto communities are swept for the low-hanging fruit -- which generally means young people hanging out the street corner, walking to school or the subway, or driving around with friends. They're stopped and searched for any reason or no reason at all.

In 2005, for example, four out of five drug arrests were for possession; only one of five was for sales. And in the 1990s -- the period of the most drastic expansion of the drug war -- nearly 80 percent of the increase in drug arrests were for possession of marijuana, a drug less harmful than alcohol and tobacco, and at least as prevalent in middle-class white communities and college campuses as it is in poor communities of color.

But it is in the poverty-stricken, racially segregated ghettos, where the War on Poverty has been abandoned and factory jobs have disappeared, that the drug war has been waged with ferocity. SWAT teams are deployed here; buy-bust operations are concentrated here; drug raids of schools and housing projects occur here; stop-and-frisk operations are conducted on these streets. If such tactics were employed in middle-class white neighborhoods or on college campuses, there would be public outrage; the war would end overnight. But here in the ghetto, the stops, searches, sweeps, and mass arrests are treated as an accepted fact of life, like the separate water fountains of an earlier era.

By the millions, people are arrested and marched into courtrooms in shackles. When released, they're stripped of their right to vote and their right to serve on juries. Discrimination against them is officially legal. Barred from public housing and denied even food stamps, millions find they are deemed unworthy of the nation’s care or concern. Jobless, hungry, without shelter, and riddled with shame, they're trapped in the desert wasteland. The majority of those released from prison return within months of their release, unable to make it on the outside.

It is impossible to imagine anything like this happening if the enemy in the drug war were white, as economist Glenn Loury observes in his book The Anatomy of Racial Inequality. Can we envision a system that would enforce drug laws almost exclusively against young white men and largely ignore drug crime among young black men? Can we imagine large majorities of young white men being rounded up for minor drug offenses, placed under the control of the criminal justice system, labeled felons, and subjected to a lifetime of discrimination, scorn, and exclusion? No, we cannot. If such a thing occurred, as Loury says, it would make us wonder "what had gone wrong, not with them, but us" -- all of us. The large-scale criminalization of white men would "disturb us at our core. So the question becomes, What disturbs us?" What upsets us? Or, more to the point: Whom do we care about?

An answer to the last question may be found by considering the drastically different manner that we, as a nation, responded to drunk driving in the mid-1980s, as compared to crack cocaine.

The drug war was initiated by political elites; only much later did ordinary people identify drug crime as an issue of extraordinary concern. In contrast, the movement to crack down on drunk drivers was a broad-based, bottom-up movement, led most notably by mothers whose families were shattered by deaths caused by drunk driving. Throughout the 1980s, drunk driving was a regular topic in the media, and the term "designated driver" became part of the American lexicon.

At the close of the decade, drunk drivers were responsible for approximately 22,000 deaths annually, and overall alcohol-related deaths were close to 100,000 a year. By contrast, during the same time period, there were no prevalence statistics at all on crack, much less crack-related deaths. In fact, the number of deaths related to all illegal drugs combined was tiny compared to the number of deaths caused by drunk drivers. The total of all drug-related deaths, whether from AIDS, drug overdose, or the violence associated with the illegal drug trade, was estimated at 21,000 annually -- less than the number of deaths directly caused by drunk drivers, and a small fraction of the number of alcohol-related deaths that occur every year.

In response to growing concern -- fueled by advocacy groups such as MADD and by the media coverage of drunk-driving fatalities -- most states adopted tougher laws to punish drunk driving. Numerous states now have some type of mandatory sentencing for this offense -- typically two days in jail for a first offense and two to 10 days for a second offense.

New laws governing crack cocaine were passed at the same time legislatures were "getting tough" on drunk drivers. But notice the contrast: While drunk driving results in a few days in prison, possession of a tiny amount of crack carries a mandatory minimum sentence of five years in federal prison. In fact, some people are serving life sentences for minor drug offenses. In Harmelin vs. Michigan, the U.S. Supreme Court upheld a sentence of life imprisonment for a defendant with no prior convictions who tried to sell 23 ounces of crack cocaine. The court concluded that life imprisonment was not "cruel and unusual punishment" in violation of the Eighth Amendment, despite the fact that no other developed country in the world imposes life imprisonment for a first-time drug offense.

The vastly different sentences afforded drunk drivers and drug offenders speaks volumes regarding who is viewed as disposable -- someone to be purged from the body politic -- and who is not. Drunk drivers are predominately white and male. White men comprised 78 percent of the arrests for drunk driving when the new mandatory minimums for the offense were being adopted. They are generally charged with misdemeanors and typically receive sentences involving fines, license suspension, and community service.

Although drunk driving carries a far greater risk of violent death than the use or sale of illegal drugs, the societal response to drunk drivers has generally emphasized keeping the person functional and in society, while attempting to respond to the dangerous behavior through treatment and counseling. People charged with drug offenses, though, are disproportionately poor people of color. They are typically charged with felonies and sentenced to prison. If and when they’re released, they become members of the undercaste, no longer locked up, but locked out -- for the rest of their lives.

This is not a problem begging merely for policy reform. Much more is required of us. If we fail, as a nation, to awaken to the basic humanity of all those cycling in and out of prison today, and if we fail to commit ourselves to ending mass incarceration, future generations will judge us harshly. A human rights nightmare is occurring on our watch.

We must do more than bring water to those stranded in the desert. We must act with courage and tell the truth about what is happening in the other America. In the words of Cornel West, "justice is what love looks like in public." If we aim to show love, we must be willing to work for justice.

Michelle Alexander, a longtime civil rights advocate and litigator, is an associate professor of law at the Moritz College of Law and the Kirwan Institute for the Study of Race and Ethnicity at Ohio State University. Portions of this article are adapted from her book The New Jim Crow (New Press, 2010).

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