Well, thank you so much for having me. I'm thrilled to be here in
Seattle. It's a beautiful town and that makes me wonder what I'm doing
in Columbus, Ohio. So I'm happy to come here and visit, and thank you
for giving me the opportunity to share with you my work and my passion
in life, which is working to end the history of racial caste in America.
Using a term like "racial caste" may seem odd today, given the election
of Barack Obama. Conversations and debates about race are typically
dismissed as yesterday's news not much relevant to the current era.
We're frequently told by media pundits and politicians alike that we as a
nation have finally moved beyond race. And not just in the United
States, but around the world there is the sense that the United States
has finally triumphed over race with the election of Barack Obama, and
that his election represents kind of a final nail in the coffin of Jim
My book is a direct challenge to that racial narrative. It's
intended as a wake up call. I argue that racial caste is not dead. It is
alive and well in America. The mass incarceration of poor people of
color in the United States operates like a racial caste system. The
systematic targeting of people of color often at young ages, branding
them as felons and then ushering them into a permanent second-class
status, one that they occupy for life, functions now in our society much
in the same way that Jim Crow once did.
I'm well aware that this
kind of claim may strike some people as bordering on absurd. I mentioned
in the introduction to my book that I myself dismissed the idea that
something akin to a racial caste system could be operating in the United
States many years ago. I describe in the introduction to my book that I
first encountered the idea that a new racial caste system could exist
in the United States when I was rushing to catch the bus and a bright
orange poster caught my eye.
It was stapled to a telephone pole,
and the poster kind of screamed in large bold print "The Drug War is the
new Jim Crow." And I scanned the text of the flyer for a few minutes
and I saw that a radical community group was holding a meeting in a
small church a few blocks away. The church itself had maybe a seating
capacity probably for no more than 50 or so people. And they were
organizing to protest the new "Three Strikes" law in California, the
expansion of the prison system, and police brutality.
looking at the poster and thinking to myself, "Yes, the criminal justice
system is racist in a lot of ways, but it doesn't help to make such
absurd comparisons. People just think you're crazy." And I crossed the
street, ran to catch the bus, hopped on the bus on my way to my new job
as Director of the Racial Justice Project at the ACLU.
Now, when I
started working at the ACLU, I assumed that the criminal justice system
had problems of racial bias much in the same way that all institutions
in our society today are infected to some degree with conscious and
unconscious racial bias. Prior to joining the ACLU I had been working as
a civil rights attorney, litigating large class action employment
discrimination cases against companies like Home Depot and Publix
Supermarkets in the South. And I understood well the ways in which
racial stereotyping, gender stereotyping can infect subjective decision
making of all kinds at all levels of an organization with disastrous
So I figured I'm just going to shift my attention
from employment discrimination to criminal justice reform, use the same
tools and strategies that I had used in the employment discrimination
context to criminal justice reform and work with others to root out
racial bias whenever and wherever it might rear its ugly head in the
criminal justice system.
But by the time I left the ACLU I
realized that I had been wrong about the criminal justice system. It's
not just another institution in our society infected with racial bias
but a different beast entirely. The activists that posted that sign on
the telephone pole, they weren't crazy. Nor were the smattering of
lawyers and advocates around the country that were beginning to connect
the dots between mass incarceration and earlier forms of racial control.
quite belatedly, really only after years of working on racial profiling
litigation, learning about the struggles of people who are incarcerated
and released and struggling to find jobs and employment on the outside,
only after years of working on these issues and having my own moments
of personal awakening did I finally come to see that mass incarceration
truly is a stunningly comprehensive and well-disguised form of racial
control analogous to Jim Crow.
I state my basic thesis in the
introduction to my book. I say, "What has changed since the collapse of
Jim Crow has less to do with the basic structure of our society than the
language we use to justify it. In the era of color blindness, it is no
longer socially permissible to use race explicitly as a justification
for discrimination, exclusion, and social contempt, so we don't. Rather
than rely on race, we use our criminal justice system to label people of
color criminals, and then engage in all the practices we supposedly
"Today, it is perfectly legal to discriminate
against criminals in nearly all the ways it was once legal to
discriminate against African Americans. Once you are labeled a felon,
the old forms of discrimination: employment discrimination, housing
discrimination, denial of the right to vote, exclusion from jury
service, are all suddenly legal."
"As a criminal, you have
scarcely more rights and arguably less respect, then 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."
Well, here are a few of
the facts that I uncovered in the course of my research, and that I cite
in my book. "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."
In 2004, more African
American men were disenfranchised, due to felon disenfranchisement laws
then in 1870, the year the 15th Amendment was ratified, prohibiting laws
that explicitly deny the right to vote on the basis of race.
some major urban areas in the United States today, if you take into
account prisoners, the majority of working age African American men have
been branded criminals, and are thus subject to legalized
discrimination for the rest of their lives.
In fact, in 2002, the
Urban League released a report showing that in Chicago, the figure is
nearly 80%, 80% of working age African American men branded criminals,
have criminal records. They are permanently locked into an inferior
"These men are part of a growing under caste,
not class, caste. A group of people defined largely by race that can be
discriminated against by law for the rest of their lives, much like
their grandparents or great grandparents may have been under an
explicitly racial system of control."
Now, I find that when I tell
people that I think that mass incarceration amounts to some kind of new
system of racial control, I am kind of usually met with shock,
disbelief. People say, "How can you say that? Just look at Barack Obama.
Look at Oprah Winfrey. Look at Colin Powell." The list goes on and on
of highly visible African Americans in positions of leadership or power,
or who have obtained great wealth.
These individuals are offered
as proof that we can't possibly have a caste-like system operating in
the United States today. I think that it is important to keep in mind
that no caste system in the United States has ever governed all African
Americans. There have always been free blacks and black success stories,
even during slavery and Jim Crow.
During slavery, there were some
black slave owners, not many, but some. During Jim Crow, there were
some black lawyers and black doctors, not many, but some. The
extraordinary nature of individual black achievement today in formally
white domains, does indicate that the old Jim Crow system is dead, but
it doesn't necessarily mean the end of racial caste.
If history is
any guide, it may have just taken a different form. I think any honest
observer of American racial history has to acknowledge that the rules
and reasons that the legal system employs to enforce status relations of
any kind, well they evolve, and they change as they are challenged.
first chapter of my book is devoted to describing kind of these sick
little rebirths of racial caste in America. After the collapse of
slavery, a convicts leasing service emerged in the South to replace the
institution of slavery. There is a fantastic book by Douglas Blackman
called "Slavery by Another Name."
It talks about the practice at
the end of the Civil War of African American men being rounded up in
mass for minor crimes like loitering, arrested, sent to prisons, and
then shipped out to plantations, leased out to plantations. The idea was
that these folks had to kind of earn their freedom, but the catch was
they could never earn enough to pay back the cost of their shelter and
their food to their plantation owners. So, they were in perpetual
slavery many years after the suppose collapse of slavery following the
So a system like slavery emerged as a backlash to the
Civil War, and of course then there was the emergence of Jim Crow as
convict leasing began to fade away. Now, most historians imagine that
although Jim Crow and convict leasing systems clearly emerged as a
backlash to the collapse of slavery that no similar system has emerged
following the collapse of Jim Crow.
However, I think if we take a
closer look at the way mass incarceration actually operates in
communities of color, we're forced to reach a different conclusion. The
emergence of mass incarceration has been truly sudden and dramatic. In a
period of less than 30 years, we went from having a prison population
of about 300,000 to more than two million. Our nation's prison
population quintupled, not doubled or tripled, quintupled in an
exceptionally short period of time.
The Unites States now has the
highest rate of incarceration in the world, dwarfing the rates of even
highly repressive regimes like Russia or China, or Iran. In fact, if we
as a nation were to return to the incarceration rates we had in the
1970's, a time when many civil rights activists actually thought that
rates of incarceration were egregiously high. But if we were just to go
back to rates of incarceration we had in the 1970's, we would have to
release four out of five people who are in prison today.
a million people employed by the criminal justice system would lose
their jobs. That is how enormous and deeply entrenched kind of in the
basic economic fabric of our society that mass incarceration has become
in an incredibly short period of time.
In my view, it is the
racial dimension of mass incarceration that is the most striking
feature. No other country in the world imprisons such a large percentage
of its racial and ethnic minorities. Several years ago it was estimated
that in Washington, D.C., three out of four young black men and nearly
all those who lived in the poorest neighborhoods could expect to serve
time in prison.
Rates of incarceration nearly as shocking can be
found in other urban areas across America. Now, most people assume that
this explosion in our prison system can be explained by crime rates. And
people say, yes, of course. Our prison population shot through the roof
because of crime. Crime went up, so prison population went up.
so. Crime rates over the last 30 years have fluctuated, risen and
fallen over the last 30 years, and today are at historical lows. But
incarceration rates have consistently soared.
now agree that rates of incarceration have moved independently of crime
rates. Whether crime rates are going up or down, incarceration rates
have continued to soar. So if the prison population hasn't exploded
because of crime rates, then what is it, then?
Well, it turns out
that the activists who posted the sign on the telephone pole were right.
The War on Drugs is the single most important cause of the prison boom
in the United States, and the branding of millions of Americans as
felons for life. About two-thirds of the increase in the federal system
is due to drug convictions, and more than half of the increase in the
state system is due to drug convictions.
Drug convictions have
increased about 1,000 percent since the Drug War first began. And for
those of you who might think the target in this war has been violent
offenders or drug kingpins, that's not the case. In 2005 for example,
four out of five drug arrests were for simple possession. Only one out
of five were for sales. Most people in state prison for drug offenses
today have no history of violence or significant selling activity.
in the 1990's, the period of the greatest expansion of the Drug War,
nearly 80 percent of the increase in drug arrests were for marijuana
possession. You know, a drug that many scientists now believe is less
harmful than alcohol or tobacco, and a drug that is equally as prevalent
in middle-class white communities and on college campuses as it is in
But the Drug War has been waged almost
exclusively in poorer communities of color, resulting in astronomical
increases in incarceration rates, particularly of black and brown men,
but increasingly of women. In some states, 80 to 90 percent of all drug
offenders sent to prison have been black/brown.
Now, the reality
is that there are almost no differences in drug use or selling activity
across racial groups. For decades now, surveys have consistently shown
and studies have consistently shown that contrary to popular belief,
people of color are no more likely to use or sell illegal drugs than
whites. Now, this defies our basic racial stereotypes about who drug
dealers are. When we picture a drug dealer, we typically imagine a black
kid standing on a street corner somewhere, maybe with his pants hanging
down. Well, drug dealing happens in the ghetto, but it happens
everywhere else in America as well.
A kid in rural Nebraska or
rural Kansas, he doesn't drive to the 'hood to get his marijuana or his
meth. No, he gets it from a friend, a classmate, co-worker, somebody
down the road. It turns out that drug markets in the United States are
relatively segregated by race and class, much like American society
generally. Whites tend to sell to whites, blacks tend to sell to blacks.
University students sell to each other.
So the concentration of
the Drug War in poor communities of color cannot be justified by rates
of drug crime, drug use, drug sales. So why is it being waged there?
Well, the Drug War from the outset had never much to do with drug crime.
It was about racial politics. Most people think the War on Drugs was
launched in response to the emergence of crack cocaine in inner-city
communities across America, or rising drug crime. Not true.
current Drug War was officially announced by President Ronald Reagan in
1982 at a time when drug crime was actually declining. And a couple of
years before crack first emerged in Los Angeles and later spread to
inner-city communities of color across America, the War on Drugs was
motivated by racial politics. It was part of the Republican Party's
grand strategy, often referred to as the "Southern Strategy" of
attempting to appeal to poor and working-class white voters who were
resentful of, disaffected by many of the gains of the Civil Rights
Movement, particularly busing, desegregation and affirmative action.
many of these folks had good reason to feel concerned about the changes
wrought by the Civil Rights Movement. It wasn't rich white folks that
had their worlds rocked by desegregation. They were able to send their
kids to private schools. No, it was primarily poor and working-class
white folks who were suddenly forced to compete on equal terms for
scarce jobs with a group of people that they had long been taught to
view as their inferiors. Their kids who were facing potential busing
orders across time. And there was anxiety and fear wrought by the social
upheaval brought by the Civil Rights Movement.
Party strategists and pollsters found that they could appeal to those
poor and working-class white voters through racially coded political
appeals on issues of crime and welfare. And through these racially coded
political appeals, they could get white voters, particularly in the
South who had long been members of the Democratic Party to defect from
the Democratic "New Deal" kind of coalition to the Republican Party.
so these racially coded political appeals and get tough campaigns and
law and order rhetoric was part of that strategy of appealing to those
voters. And when Ronald Reagan declared the War on Drugs at a time when
drug use was actually declining, and people weren't that much worried
about drug crime, it was an effort to make good on campaign promises to
get tough on a group of people that had been defined in the political
rhetoric and in the media imagery as black and brown.
Reagan administration got lucky, and a couple of years after the war was
officially declared, crack hit the streets in Los Angeles and spread to
inner-city communities. And the Reagan administration seized on this
development with glee, hiring staff whose job it was to publicize images
of crack babies, crack dealers, crack-related violence.
whose job it was to feed stories about these folks and find examples of
crack babies, crack whores in the inner-city to feed to mainstream media
outlets. Their hope was that by publicizing and sensationalizing
crack-related use, abuse and violence in inner-city communities that it
could boost public support for the Drug War and turn the rhetorical war
into a literal one.
And the plan worked like a charm. Almost
overnight, television sets were saturated with images of black and brown
drug dealers and users. Many of you in this room are too young to
remember, but in the mid 1980's and early 1990's, it was nearly
impossible to turn on the evening news without seeing images of black
and brown men in handcuffs being paraded off to prison for drug-related
offenses or sweeps being done of housing projects in ghetto communities.
saturated the news and it forever changed our conceptions about who
drug dealers and users are. And it's because of that media campaign
conducted by the Republican administrations and the media imagery that
followed, that in 1995 a national survey was conducted asking people,
"Close your eyes for a minute and imagine a drug criminal." 95 percent
of the respondents pictured someone who was African American. Only five
percent pictured anyone of any other race.
So it's no surprise
that in that political environment that the war would be waged almost
exclusively in poor communities of color. And Democrats began competing
with Republicans to prove that they could be even tougher "on them."
Tougher on the racially defined "others" in the media imagery and in the
news. And President Clinton outdid Ronald Reagan. He escalated the Drug
War far beyond what his Republican predecessor had even imagined
The greatest increase in incarceration rates in United
States history happened during the Clinton administration, not during
the Reagan administration. Because Clinton was so desperate to appeal to
and try to woe that same block of voters that had proved so responsive
to the racially charged get tough rhetoric on crime and welfare, and
that's why Clinton pledged to end welfare as we know it and escalated
the Drug War far beyond what his Republican counterparts had dreamed
So here we are as a result, years after all the media
fanfare and the get tough rhetoric. And we have people of all colors
serving lengthy sentences, sentences unheard of in other Western
democracies for often relatively minor non-violent drug related
offenses. You know, if you go to places in Europe and tell people that
here in the United States there are people doing life sentences for
marijuana possession, they'll just look at you like you're crazy. It's
absolutely unheard of.
Here in the United States, our Supreme
Court upheld life imprisonment for a first time drug offense. Absolutely
unheard of really in any other democracy in the world. And the fact
that those that are trapped in the new under caste are not only black
and brown but are also white is a reflection of a Drug War and a get
tough movement that has spiraled out of control and caused harm to
people of all colors.
Now, I want to spend just a couple minutes
talking about some of the parallels between mass incarceration and Jim
Crow segregation, and then I want to open it up for questions and have a
discussion and a debate about this.
Jim Crow of course was a
system of rules, laws, policies and customs that served to lock African
Americans in a permanent second-class status for life. Consider whether
some of the rules and laws that applied to those labeled felons, and ask
yourself whether they remind you of a bygone era.
Well, first and
most obviously is denial of the right to vote. You know, I'm thrilled
that here in Washington State has now become one of the few states where
prisoners as well as those who have been branded felons have the right
to vote as a result of legislative action and the decision hopefully
you're all familiar with by the 9th Circuit, ruling that the denial of
the right to vote to people in prison is a violation of the Voting
Because the criminal justice system particularly, and
drug law enforcement in Washington State is so rife with racial bias.
The racial disparities can't be explained on race-neutral terms. In
fact, the state made no attempt to explain them on race-neutral terms,
but the denial of the right to vote to prisoners violates the Voting
Most other states in the United States, that's not the
case. And the denial of the right to vote is routine in most states in
the United States to people who are prisoners and even whence you've
been released from prison. You can be denied the right to vote for a
period of years or for your entire life.
discrimination. Employment discrimination against those branded felons
is perfectly legal. Job applications ranging from Burger King clerk to
accountant all got that box on the employment application that you have
to check if you're ever been convicted of a felony. Studies indicate
that 70 percent of employers won't even consider hiring someone who's
been convicted of a drug felony. Never mind that most Americans violate
drug laws in their lifetime, but if you've been branded a felon, if you
get caught with drugs, then the odds of you getting employment again are
extremely slim if you check that box.
Housing discrimination is perfectly legal. During the Jim Crow era of
course, that was the era of racially restrictive covenants. But today,
housing discrimination is perfectly legal. Public housing projects as
well as private landlords are not only authorized to discriminate, but
in federal public housing, they're required to discriminate.
housing is off-limits to you for a minimum of five years once you've
been released from prison. So imagine, here you are, released from
prison. No money, no job, public housing is off-limits to you. Many
homeless shelters today screen for criminal convictions. The 600,000
people released from prison every year, where are these folks expected
to go? Many folks who are released from prison return to the communities
from which they came, ghetto communities, and their relatives risk
eviction if they allow you to stay with them.
And no job, nowhere
to sleep, what are you expected to do? In most states you are expected
to pay thousands of dollars in fees, fines, court costs. In some states
you're expected to pay back the cost of your imprisonment. Paying back
these fees, fines and court costs are often a condition of your parole.
And in fact, in many states, up to 100 percent of your wages can be
garnished to pay back the cost of your imprisonment, accumulated child
support, fees, fines, court costs. What do we expect these folks to do?
if you're one of the lucky few who manage to land a job after checking
the box, up to 100 percent of your wages can be garnished? And you're
not even eligible for food stamps. By federal law, thanks to President
Clinton, even food stamps are off-limits to people who've been branded
drug felons. Pregnant women, people with HIV/Aids, you're hungry, sick?
Can't even get food stamps.
Now what is the system designed to do?
From all appearances it appears designed to send people right back to
prison, which is what happens about 70 percent of the time. 70 percent
of people released from prison return within three years. And the
majority of those who return do so in a matter of months because the
legal hurdles and the barriers to just surviving and making it in the
mainstream society and a legal economy are so great.
But then we
have "three strikes" laws. You know, here in Washington State there's
someone serving a life sentence, a three-strike sentence for stealing
$50 worth of groceries as their third strike. People are then punished
for the rest of their lives, locked up and the key is thrown away for
struggling to survive once being branded a felon.
Now of course,
there's also other forms of political discrimination analogous to Jim
Crow, like exclusion from jury service. One hallmark of the Jim Crow era
was the systematic exclusion of African Americans from juries and kind
of the all-White juries particularly in the South. Well, in many areas,
all-white juries have been making a roaring comeback. You know why?
Because those branded felons are deemed automatically ineligible for
And then get this. Even if you haven't been branded a
felon, if you've ever had a negative experience with law enforcement,
well then, that can disqualify you for cause for a jury in a criminal
case, because you're perceived to have experiences with law enforcement
that would make it difficult if not impossible to be impartial in a
So in many areas the all-white jury and the
systematic exclusion of African Americans from jury service has come
roaring back because of mass incarceration and the branding of millions
of people as felons, frequently for non-violent and drug related
But of all of the kind of formal political forms of
discrimination and exclusion that are in place today for those branded
felons, in my experience those who've been branded felons will often say
that these legal rules, these legal forms of discrimination are not the
worst of it. The worst is actually the stigma and shame that you bear
as being viewed as a criminal, as being branded a felon. It's not just
the denial of the job, but the look that flashes across the employer's
face when he sees that box has been checked.
It's not just the
denial of public housing, but the humiliation and shame that you feel
when you have to beg your grandma for a place to sleep at night because
no one else will take you in. The shame and the stigma associated with
criminality and the era of mass incarceration has real parallels to the
shame of stigma of race in the Jim Crow era.
During Jim Crow,
light-skinned blacks would often try to pass as white to avoid the shame
and stigma associated with race. Well, today those branded felons often
lie not just to employers and to housing officials, but also to their
friends, family, and loved ones, trying to hide their criminal status or
that of their family members due to shame.
You know, there was a
fascinating study that was done in Washington, DC of an area hard-hit by
mass incarceration. A neighborhood where every house or every other
apartment had someone who had either recently been released from prison,
or had a family member behind bars. And these were neighborhoods where
you would think that mass incarceration was just completely normalized,
where everyone would just talk about their own criminal history or that
of their loved ones.
But instead, the ethnographers found that not
a single person in this study had fully come out to their friends,
neighbors, loved ones about their own criminal history or criminal
status or that of their loved ones. That there is still such shame and
stigma associated with it that people felt it'd be better not to mention
it, to keep quiet.
So there's an eerie silence that has fallen
over, even the communities hardest hit by mass incarceration. One rooted
in shame for some and for others of us in denial. We are in deep denial
as a nation about the existence of caste in America and experience of
millions of people cycling in and out of the criminal justice system
Now, a big part of this denial is rooted in the fact that
prisoners are literally erased from poverty statistics and unemployment
statistics. Prisoners are just not even counted. If you read
unemployment statistics for African Americans, standard unemployment
statistics, as bad as they are today, you read that unemployment for
African Americans is 15 percent or whatever the current number is? You
can actually add 15, 20, up to 23 percentage points to that number to
account for all of the African Americans behind bars.
illusion of great progress has been engineered in part by the removal of
millions of people from our poverty rolls, from our unemployment
statistics through mass incarceration. And affirmative action, the
election of Barack Obama has helped to create kind of a happy face on
America's racial reality. But if you take a close look at the data and
include prisoners within it, you see that African Americans as a group
are actually not better off than they were in 1968 when Martin Luther
King, Jr. was assassinated and uprisings swept inner-city communities
We are today much in the same place that we were
when Martin Luther King, Jr. said we need to build a poor people's
movement in the United States and join poor folks of all colors in a
struggle for basic human rights. And that I believe is the work that is
left unfinished and that we must go back to do. Not just to end mass
incarceration, but to do the healing work and the movement-building work
that is necessary to end the history of racial caste in America and
build a society that genuinely recognizes and honors the human rights of
So, happy to take your questions and open it up for debate