Confronting My Own Bias About The New Jim Crow

Let’s start this post with an exercise:

an exercise

Do you think of someone you actually know? I picture a middle school classmate, the first person I knew sold drugs. He is a white kid in a flannel shirt with chin-length hair parted in the middle (à la 1994).

In the 1980s, as reported in a 1995 article in the Journal of Alcohol & Drug Education, ninety-five percent of the 400 individuals who were asked to envision a drug user pictured an African American.* Without access to the survey, I don’t know its methodology, the respondents’ racial makeup, or what percentage envisioned a wholly fictional person as opposed to someone they knew. However, the extremely high percentage who envisioned an African American suggests that stereotypes about race and criminality were at play.

In the 1980s and ‘90s, politicians capitalized on the stereotype of the “black criminal” to fuel the “War on Drugs.” I remember George Bush’s attack ads against Michael Dukakis — the revolving door and Willie Horton’s face — that reflected and reinforced the perception of African American men as criminals.

new jim crowAs Michelle Alexander argues in The New Jim Crow (2010), these images and related political rhetoric were part of a highly successful effort to maintain America’s long-standing racial hierarchy by replacing Jim Crow-era segregation with mass incarceration. Through the War on Drugs, which began before crack hit the streets, the government was able to use the criminal justice system as a nominally “colorblind” tool of racial control.

Draconian anti-drug measures and sentencing laws have resulted in an exponential increase in prison population rates with a disproportionate impact on people of color. As Alexander notes in the Introduction to her book: “One in three young African American men will serve time in person if current trends continue, and in some cities more than half of all adult black men are currently under correctional control — in prison or jail.”

Felons are essentially second-class citizens, even when their crimes are drug-related and nonviolent. Alexander writes:

Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, 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.

There have been criminal justice reforms in the years leading up to and in the years since Alexander’s book — such as a reduction in penalties for many nonviolent drug crimes in April 2014, the release of 6,000 federal inmates in October 2015, and an expansion of voting rights for felons in some states — but, as Alexander argues, this type of progress does not address the heart of the problem. In Chapter 6, she writes:

Isolated victories can be won—even a string of victories—but in the absence of a fundamental shift in public consciousness, the system as a whole will remain intact. To the extent that major changes are achieved without a complete shift, the system will rebound. The caste system will reemerge in a new form, just as convict leasing replaced slavery, or it will be reborn, just as mass incarceration replaced Jim Crow.

Alexander does an excellent job of drawing the parallels between mass incarceration and Jim Crow without overstating the analogy.

As a public interest lawyer with an interest in racial justice, I found that much of Alexander’s argument matched my own established beliefs about our disingenuously colorblind society. It is one in which the government, employers, and public accommodations are often allowed to implement policies that produce a disparate impact on people of color (and other groups) as long as no one expresses their animus out loud.

Still, through Alexander’s book, I learned much more about mass incarceration than I ever knew before. I also may have learned something about myself — something unsettling.

There is a narrative out there that the War on Drugs was a benign effort to combat actual drug crime in minority communities. However, as Alexander explains in Chapter 3,

The truth, however, is that rates and patterns of drug crime do not explain the glaring racial disparities in our criminal justice system. People of all races use and sell illegal drugs at remarkably similar rates. If there are significant differences in the surveys to be found, they frequently suggest that whites, particularly white youth, are more likely to engage in illegal drug dealing than people of color.

I’ve heard that the rates of buying and selling drugs are similar across races before — and not only from John Oliver’s Last Week Tonight episode on prisons. I also know people from many different backgrounds who use drugs. Nevertheless, I felt a slight jolt of surprise when I saw the facts written on my e-reader screen. Why hadn’t it ever sunk in before?

This is where implicit bias–bias we are not aware of–comes into the picture. I have taken implicit bias tests before (available here), and so far, none has indicated that I have a bias against African Americans. Still, my reaction to the facts around race and drug use suggest that the stereotypical beliefs about criminals that were ubiquitous in my youth still lurk somewhere inside me, beneath my liberal, non-white exterior.

Had I never met the person who has become my mental image of a drug user — a person who is white — would my mental image be a fictional person of a different race?


*Alexander mentions this survey in The New Jim Crow, saying that it was conducted in 1995. However, when I read the 1995 article she cited, I found that it was citing a National Urban League “runtafax” sheet from 1989 (I don’t know what a “runtafax” is). The 1995 article is Betty Watson Burston, et al, Drug Use and African Americans: Myth Versus Reality, J. of Drug Alcohol & Education (Winter 1995). I consider this a minor mistake that doesn’t detract from the overall argument of the book.

**This book has been on my TBR list for a long time. I finally decided to read it after seeing it mentioned on Sarah Says Read, a blog I found through Words for Worms (thanks!).


  1. Very interesting! I pictured a white person, also — someone homeless and dealing with substance abuse issues. It seems very clear that enforcement of the drug laws is unfairly far heavier on African-Americans, but it also seems pervasive across the legal system for all crimes…the punishment is almost always worse for people of color. The whole system is flawed!

  2. Thank you for the write up. I’ll add this to my to-read list. The topic is near and dear to me. When my kids are born, they will be half-white and half-black. When I closed my eyes, I saw people of many different backgrounds using drugs, all people I’ve known. Actually, the first image that came to mind was an indistinct figure lurking behind a fence smoking and scowling. I couldn’t have told you the race, except dark, either southern deep tan or naturally born darker. That definitely comes from my childhood in San Diego, where drug users wold haunt the alley behind our house.

    1. I hope you get a chance to read The New Jim Crow. It’s interesting to hear what your vision of a drug user is and that it comes from childhood experiences. That’s better than having it come from political rhetoric or biased media images.

  3. I thought I had added this one to my Goodreads “To-be-read” pile but apparently had not. Thanks for the write-up and the reminder to read it. I appreciate the perspective from someone more intimately familiar with the legal system.

  4. I have only read the very beginning of The New Jim Crow (but BiblioBoyfriend read it and found it extremely eye-opening). The one thing that I was skeptical of from the section that I read was Alexander’s claim that the crime laws were put into place with the deliberate purpose of oppressing African Americans. I agree 100% that the changes to the criminal justice system have been oppressive to African Americans and need to be changed. But was that really the conscious intention of legislators? Or was it perhaps that unconscious biases (such as the one you described) shaped crime policy? Of course, I haven’t read most of the book, so perhaps it convincingly argues that the oppression of African Americans was deliberate. I’d be interested to hear your thoughts.

    1. “I agree 100% that the changes to the criminal justice system have been oppressive to African Americans and need to be changed. But was that really the conscious intention of legislators? Or was it perhaps that unconscious biases (such as the one you described) shaped crime policy?”

      Hi Biblioglobal! Those are interesting questions. I think the answer is that both conscious and unconscious bias are at play. Alexander goes into detail about how—as the laws changed to make it harder to be explicitly racist—conservative politicians used coded anti-black rhetoric to realign their political party and build a majority. Then, at a time when some believed the prison system could be phased out and crack hadn’t even hit the streets, the Reagan Administration manufactured a “War on Drugs.” It’s hard to believe they didn’t have a particular “enemy” in mind when we have such a long history in our country of viewing “criminals” in a racial way.

      Disparate treatment—intentionally treating someone differently because of a protected characteristic (like race or sex)—isn’t easy to prove, especially when we have to consider the intent of the individual agents involved in developing and implementing a governmental policy. These are individuals who aren’t likely to leave behind clear evidence of their discriminatory intent. A strong disparate impact of a supposedly “neutral” policy on a certain group, however, suggests an underlying intent.

      1. Thanks for your thoughts. They make a lot of sense. I also realized after I left my comment, that my comment reflected my thoughts several years ago when BiblioBoyfriend read the book. Reflecting on events since then, I think I was underestimating the pervasiveness of conscious bias.

  5. Very interesting post, and a great topic for Black History Month as well. I tried the exercise and pictured a white guy, as well.

    There are some jurisdictions where employment discrimination based on either arrest record, conviction record, or both is illegal – New York is one. Here in NY we have several provisions on the books that protect individuals with conviction histories from employment discrimination – I’ve encountered the issue several times in my own law practice. More and more cities and counties are also implementing “ban the box” ordinances as well. These are wonderful and important developments (in my opinion, of course, but I’m only speaking for myself and not my firm) but we still have a long way to go.

    Thanks for the thought provoking post!

    1. Hi Jacyln! It’s great to hear about those developments in NY. We have a local “ban the box” law that our city government recently expanded. It’s definitely an important step forward, though Alexander argues that we need social change on a much bigger scale to truly address the problem.

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