Predatory lending. A two-tiered justice system. The list of discriminatory practices goes on, and on, and on ...
The impatience that characterizes discussions of race and racism in our so-called color-blind society has its roots in the momentous legislative changes of the 1960s. The Civil Rights Acts of 1964, 1965, and 1968 reached into nearly every aspect of daily life—from segregated facilities to voting to housing—and represented a long overdue re-installation of the equality principle in our social compact. The question was what it would take—and from whom—to get to equality.
Was racial equality something that could be had without sacrifice? If not, then who would be forced to participate and who would be exempt? As implementation of the laws engendered a far-reaching bureaucracy of agencies, rules, and programs for everything from affirmative action hiring goals to federal contracting formula, the commitment was quickly tested. For a great many who already opposed the changes, patience was quickly exhausted. As welfare rolls rapidly increased, crime surged, and the real and perceived burdens of busing took their toll, many voters pointed to the apparent failure of a growing federal government to fix the problems it was essentially paid to cure. Among Democratic voters this made for unsteady alliances and vulnerable anxieties. People don’t live in policy and statistics as much as they do through anecdote and personal burdens. A riot here, a horrific crime there, a job loss or perhaps the fiery oratory of a public personality could tip a liberal-leaning person’s thinking toward more conservative conclusions—or at least fuel her impatience. Impatience would ossify into anger, turning everything into monetary costs, and making these costs the basis for political opposition to a liberal state. As it happened, this process moves the date of our supposed final triumph over racism from the mid-1960s to at least the mid-1980s. In the end, impatience won.
What I call impatience, others have characterized as a simmering voter ambivalence—even antagonism, in the case of working-class whites—to civil rights remedies, one that was susceptible to the peculiar backlash politics that elected both Ronald Reagan and George Herbert Walker Bush president. Language was central to this strategy, and the language that stuck was colorblindness. As Thomas Byrne Edsall and Mary Edsall wrote in “Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics,” “In facing an electorate with sharply divided commitments on race—theoretically in favor of egalitarian principle but hostile to many forms of implementation—the use of a race-free political language proved crucial to building a broad-based, center-right coalition.” Ronald Reagan managed to communicate a message that embodied all the racial resentments around poverty programs, affirmative action, minority set-asides, busing, crime, and the Supreme Court without mentioning race, something his conservative forebears—Barry Goldwater, George Wallace, and Richard Nixon—could not quite do. The linchpin was “costs” and “values.” Whenever “racism” was raised, it became an issue of “reverse racism” against whites. The effect was the conversion of millions of once fiscally liberal, middle-class suburban Democrats to the Republican Party. Issues identified with race—the “costs of liberalism”—fractured the very base of the Democratic Party. In the 1980 presidential election, for example, 22 percent of Democrats voted Republican.
By 1984, when Ronald Reagan and George Bush beat Walter Mondale and Geraldine Ferraro in the presidential election, many white Democratic voters had come to read their own party’s messages through what Edsall calls a “racial filter.” In their minds, higher taxes were directly attributable to policies of a growing federal government; they were footing the bill for minority preference programs. If the public argument was cast as wasteful spending on people of weak values, the private discussions were explicitly racial. For instance, Edsall quotes polling studies of “Reagan Democrats” in Macomb County—the union friendly Detroit suburbs that won the battle to prevent cross-district school desegregation plans in 1973—that presents poignant evidence of voter anger: “These white Democratic defectors express a profound distaste for blacks, a sentiment that pervades almost everything they think about government and politics. . . . Blacks constitute the explanation for their [white defectors’] vulnerability and for almost everything that has gone wrong in their lives; not being black is what constitutes being middle class; not living with blacks is what makes a neighborhood a decent place to live. These sentiments have important implications for Democrats, as virtually all progressive symbols and themes have been redefined in racial and pejorative terms.”
By 1988, these same voters had endorsed tax revolts across the country and had become steadfast suburbanites, drawing clearer lines between a suburban good life and the crime and crack-infested city. Still they were angry, as magazine articles chronicled the rising political significance of what would be known as the “Angry White Male” voter. George Bush, down seventeen points in the presidential election polls during midsummer, overcame that deficit with TV ads about murderous black convicts raping white women while on furlough. That and a pledge never to raise taxes seemed to be enough to vanquish Bush’s liberal challenger, Michael Dukakis of Massachusetts. What’s important to recognize in this transition is how as recently as twenty years ago, Americans’ social lives were very much embroiled in racial controversy—despite the obfuscatory veneer of colorblind language to the contrary. Our politics followed. The election of Bill Clinton represented a distinct centrist turn among Democrats toward Republican language and themes and away from rights, the “liberal” label, and the federal safety net. The question we might ask about our current race relations is, only a couple of decades removed from this political history, what would compel us to assume that we are beyond the legacy of our racial conflicts?
The racial polarization that connected these political outcomes was deliberately fed by national Republican candidates in order to do more than roll back civil rights. It also served to install “supply-side economics,” a system of regressive tax-based reforms that contributed mightily to the costs of income inequality we currently face. That era—which arguably ended with the election of President Barack Obama—illustrates two points central to my examination of civic connectivity. The first is that the economic underside of racial polarization proved no more than the old okey doke. The second is that localism contains its own contradictions, which have come due in our time. Let me explain.
Only racism could achieve the ideological union of the Republican rich with the working man (and woman). Nothing else could fuse their naturally opposed interests. The essence of supply-side economics was its belief in the importance of liberating the affluent from tax and regulatory burdens, a faith not typically shared by lower-income households who might at best see benefits “trickle down” to them. In fact, they often paid more under tax-reform schemes of the 1980s. Edsall provides data on the combined federal tax rate that include all taxes—income, Social Security, and so forth. Between 1980 and 1990, families in the bottom fifth of all earners saw their rates increase by 16.1 percent; it increased by 6 percent for those in the second-lowest fifth (the lower middle class); and it increased by 1.2 percent for those in the middle fifth (the middle middle class). But those in the second-highest fifth of all income earners saw a cut in their tax rate by 2.2 percent during that decade; and those in the top fifth got a 5.5 percent decrease in their rate. Overall, the richest 10 percent of American earners received a 7.3 percent decrease in their combined federal tax rate. The top 1 percent? A 14.4 percent cut during the 1980s. Clearly this hurt the middle class, as the vaunted trickle down never arrived. But it was working-class whites who bought the message that this model of fiscal conservatism, married to social conservatism in the form of a rollback of redistributive programs they perceived to favor blacks, would benefit them. It did not. Yet it established a popular political rhetoric by which lower-income whites can be counted on to take up against “liberal” policies that may actually serve their interests as long as opposition can be wrapped in the trappings of “traditional values,” “law and order,” “special interests,” “reverse racism,” and “smaller government.” This was pure okey doke based on an erroneous notion of zero-sum mutuality—that is, that whatever “the blacks” get hurts me.
Which also demonstrates the contradictions of localism. Remember my earlier argument that localism—or local control expressed formally through home rule grants, as it’s sometimes known—became the spatial successor to Jim Crow segregation. Through racially “neutral” land use and housing policy, it kept white communities white after the fall of legal segregation in the late 1950s and mid-1960s. Yet here’s the contradiction. While voters opposed to civil rights remedies and Great Society programs followed Republican leadership toward fiscal conservatism at the national level, they maintained their fiscal liberalism at the local level. The tax base they created for themselves through property taxes in suburbia could be contained and spent locally. Edsall describes the irony this way: “Suburbanization has permitted whites to satisfy liberal ideals revolving around activist government, while keeping to a minimum the number of blacks and the poor who share in government largess.” Of course, all of this worked best when “suburbs” meant middle-class white people and “cities” (or today’s “urban” areas) always signaled black and brown people. There was no mutuality of interests between the two kinds of places. It also worked when low property taxes—together with generous state aid—could reliably pay for great local public services like schools, libraries, and fire protection. It was a terrific deal. But that was then. Now, neither is true. The line between cities and suburbs has blurred into regions, and minorities and whites are busy crossing back and forth to work, live, and shop. Most of the fragmented municipalities that sprawled across suburbia are no longer able to sustain their own budgets, threatening the quality of their services, despite unimaginably high property taxes. The assumptions have not held.
Perhaps now we should consider the racially polarizing policies that became the norm under Reagan’s failed experiment. We tried them. Some believed fervently in them. But it is clear that they didn’t work and are not in our long-term national or local interest. There remains a legacy of racism, however, that continues to harm some of us disproportionately and all of us eventually. It’s to those three examples that I now turn.
If I’m right that the kind of racism that still works to seriously limit minority lives is more structural than intentional, and that much of it works its harm by the dynamics of place, then the first example of racism has to be environmental racism. This is little more than the straight forward fear of being killed by your neighborhood. It can happen in a number of ways.
There is a stretch of road in Brooklyn that demonstrates how urban design can kill some more probably than others. Along Brooklyn’s Park Avenue, a grim street cast in shadows beneath the elevated Brooklyn–Queens Expressway, lie several blocks of dense, high-rise housing projects built in the 1950s, the Ingersoll Houses and the Walt Whitman Houses. Cars on Park Avenue drive fast. But on the end of Park Avenue where I lived, they are slowed down by streetlights that occur at crosswalks almost every block. My end is low density and people can rarely be seen crossing the wide street. However, alongside the projects there are no streetlights and no crosswalks. Yet there are two schools on the other side of the road, a huge ball field, and beyond that some truly out-of-the-way playgrounds, abutting parts of the old Brooklyn Navy Yard.
Drivers like me routinely dodge pedestrians as we make our way up Park—especially children, who often stand on the sliver of median waiting for traffic to clear so that they can dart home. Each year, some are struck by cars driving in excess of forty-five miles per hour. Every one of them is black or Hispanic. I often wondered why parents would let their children cross so dangerously, until it occurred to me. Decades ago, New York City designed its housing for the poor on the edges of city life, in undesirable, dangerous places beside highways. The city located neighborhood schools and playgrounds nearby, but across obviously dangerous crossings. Why not also install curbs, streetlights, and clear crosswalks—maybe even some crossing guards? The number of families with kids in the projects dwarfs those in the part of the neighborhood that has such basic safety measures. Why should these kids’ physical environment be so reckless as to require them to dodge traffic every day? It seems either cruel or stupid, yet it’s continued for years.
Or maybe you’re not killed right away, but debilitated by the diseases associated with the air, water, or soil in your neighborhood. Or just the higher risk that it will happen there and not somewhere nicer. Few of us know this as racism. Most of us think of this as NIMBYism and we’re all for it. If you tell a skeptic that Latinos tend to live in areas where people are at greater risk for cancer or asthma and that there might be some ethnic discrimination behind that, they will let you have it pretty good for stretching the idea of racism into mere ambient risks. They’ll break you down with reasonable arguments about cause and effect, the lack of clear agency (Was it genetics? Diet? How come everybody didn’t get sick?), and the old moving-to-the-nuisance idea of free will (if it was so bad, why’d they move there?). The problem is, the minute you turn it around and ask the same skeptic, “OK, how ’bout we move the same concentration of toxins or trucks or medical waste near where you’re raising kids?”—after all, these are just by-products of the stuff we all need—well, now you’re really talking crazy. And that seems to be exactly how environmental racism works. People who can’t or don’t politically organize their incredulity about living amid the terrible environmental dangers we all produce wind up disproportionately bearing everybody else’s burden. Those people tend to be black, brown, Native American, and the white poor.
Take Chester, Pennsylvania, about fifteen miles outside of Philadelphia in Delaware County. Chester is home to most of the county’s toxic chemical air pollutants, its solid and medical waste. According to the Delco Alliance, Chester in the 1990s had all of the county’s municipal solid waste and the imported medical waste from several states. In fact, eight waste facilities process over two million tons of waste a year in Chester, compared to just 1,400 tons in facilities across the rest of the entire county. More than ten thousand people live within a mile radius of multiple industrial facilities, with some homes as close as one hundred feet away. In this city of thirty-eight thousand, about a third of the families with children are poor, according to 2008 census data. Nine percent of Chester residents were Latino in 2010 (up from 6 percent a few years before), about 15 percent were white, and approximately 75 percent of Chester’s population was black (compared to only 6 percent in the rest of Delaware County). But there’s not a single supermarket in Chester to serve them.
However, what Chester lacks in racial diversity and shopping it more than makes up for in public health pathologies. People here get really, really sick. The city has the highest mortality rate and highest lung cancer rate in the county. Its moms give birth to the highest percentage of low-weight babies in the state, and their infants die at twice the rate of other infants in Delaware County. Everything with environmental racism is scientific correlation—the relationship between risk factors and known outcomes. Nearly all harm must be proved by the circumstances. This is part of the problem with environmental racism in the age of colorblindness. As a matter of law, it’s hard to prove the intent to bring about horrible truths that most of us can easily infer from the facts. Still, a group in the city was able to fight off an attempt to build yet another waste facility in town—but only when they committed to taking their case all the way to the Supreme Court. They sued on civil rights grounds, because environmental laws have not caught up to the problem. In fact, many lawyers now attempt to use international human rights law to secure environmental protection for minorities in a country that rightly professes great concern for the environment.
There is law at the state and federal level that recognizes the problem of disproportionately burdened communities and the peculiar racial skew of the environmental hit. The inequities are as obvious as any random zip code search on any one of the numerous websites that test the environmental harms around your child’s school (the EPA has one, for example). Responding to a few national studies of environmental inequity, President Bill Clinton in 1994 issued Executive Order 12898. The order, titled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” is less about action than declaring priorities for federal agencies. It addresses the need for communities to have a say in the procedures by which dangerous facilities locate near them as well as the need to monitor the substance of dangerous uses. In the parlance of 1994 and since, it broadly, but not boldly, seeks “economic justice.” As Carleton Waterhouse says, “In the environmental context, justice can be viewed as a process and a means of distribution as well. As a process, environmental justice relates to the procedures used to decide how and when the risks of environmental harms will be distributed. . . . As a concern about distribution, environmental justice relates to the distribution of environmental harms and risks across communities and the larger society.”
There is some risk in calling something that behaves just like racism something else. After all, places like Cancer Alley between New Orleans and Baton Rouge, Louisiana, have the highest concentration of petrochemical plants in the nation, strewn along roughly ninety miles of land first settled by freed slaves. Even in New Orleans after Hurricane Katrina, the focus of Waterhouse’s research, it was the blatant failures of the Army Corps of Engineers to maintain the flood-protection system around predominantly black neighborhoods of the city that caused so much death and destruction in August 2005. The risks were known, but the political will and the funding were lacking. Surely, this is not just environmental injustice but environmental racism. Yet we are connected, never so much so than by our natural environment.
Perhaps the roots of our mutuality lay in the ruins of our housing markets. It’s there we’re told that the American Dream of hard work and home ownership may have died in or about late 2008, depending on where you live. If so, there are multiple ground zeros, places where financial devastation—aided and abetted by Wall Street—took particular aim at middle-class households and wiped them out from the roof down before ravaging the rest of the economy. One of those places is Vailsburg, a solidly middle-class neighborhood in Newark, New Jersey. It is mostly black, with an increasing number of Latinos. I saw it as I never have before on my first foreclosure tour with Kathe Newman, a Rutgers political scientist, back on a mild, sunny day in the early summer of 2009. The Great Recession had officially ended, but the specter of loss here was perhaps the most vivid reminder of our economic mutuality as a nation.
We packed into a car littered with large, unwieldy maps. Kathe is a white woman with brown hair, all business, with a hint of humor and a slightly curious, somewhat skeptical demeanor. Under contract with cities trying to get a handle on the tax-base impact of neighborhood abandonment, she produces foreclosure maps full of pins and colorful highlights as a prelude to tables, charts, and eventually damage assessments. As in most of Newark, foreclosures were already very high in Vailsburg, and the foreclosure peak was still two years away. We rolled by each block at the cruising speed of gangbangers, looking for telltale signs. The easiest is the newly invented gray grates that cover whole windows snug enough to keep out a pipe thief ’s crowbar or a squatter’s screwdriver. The hardest is when the homeowner has left but returns periodically to pick up junk mail, prune a hedge, or clear some debris. It’s like divining the difference between a home’s deep sleep and its death. Kathe is checking pulses. We look for dates on supermarket circulars, healthy plants inside windows, footprints on porches; we listen for sounds—a foreclosed house is quieter than one whose occupants are simply out for the day.
Kathe is an unwitting coroner of American Dreams, come to identify the dead. The colored pins multiply everywhere across her Newark map. Kathe explains more with her exasperated looks than she does with her words. She’s been monitoring this neighborhood and others for a while. What was special about Vailsburg was its succession by middle-class black households after decades of blacks being kept out by racism. When white families left in the 1960s and 1970s, black ones moved in. In a twist on common histories, many of those black families could have gone a little farther out—to the Oranges, perhaps—but chose to stay in the city. They were a quiet, middle-class anchor in a working-class town. But the houses were old, aging like their residents. They needed expensive maintenance like roofs, foundation support, new stairs. Owners began subdividing for rental income. Then came the direct marketing by home repair contractors, nonbank lenders, and mortgage brokers—often door to door. Offering equity lines and refinancing against the inflated value of the house, the now-familiar practice became routine. The offers contained either terms too good to be true or fees, charges, and accelerators that were not disclosed to the borrower. Sometimes the roofs got fixed. Often they did not. But the refinancing contained usurious interest rates, unexplained balloon payments, surprise fees, and the prospect of either speedy default or expensive litigation.
Kathe Newman calls the easy mortgages that became ubiquitous in the late 1990s to mid-2000s “post-industrial widgets.” They were the new and improved, must-have invention, capable of lifting entire economies, if not the world, through “financialization.” Financialization was the process of expanding Vailsburg’s small-time transactions into the vast unregulated, high-gain, low-risk investments of a global secondary market. Of course, a sad wade through the ruins of this once-proud neighborhood reveals the downside. We know by now that millions of Americans of all stripes fell (or marched greedily) for this good life. The subprime mortgages that swamped Vailsburg and thousands like it affected most of us. But it was the dream of minority home ownership and opportunity that died first.
This, too, is the story of an okey doke. The sale of mortgage instruments at rates the customer could not hope to afford over time is a classic example of swindling the gullible. The mass suckering of so many produced the potential for more suckering, as home buying became the investment rage across the globe. Banks dropped their lending standards and oversight. First and second mortgages like those written in Vailsburg were bundled and securitized into shares, sold and traded by equity investors like, well, widgets. But that doesn’t make it racism.
So, let’s pause to consider what made some of the most gullible such suckers in the first place. The other side of racial segregation is economic segregation, which, in spatial terms, means that the vulnerable are never hard to find. For decades before the housing bubble, legitimate credit lenders redlined black communities. The resulting credit vacuum was filled by shady, expensive, offshore, and fly-by-night lending for everything from furniture to homes to burial insurance. That often-unregulated antimarket is what’s known today as “reverse redlining.” Nobody who lends in such areas has to target overtly black borrowers in a way that would make them liable in a race discrimination lawsuit because one need only go where only blacks live and sell subprime loans. This form of race-neutral discrimination is also known as “predatory lending.” Before this century’s subprime loans, predatory lending was the late last century’s crisis point, leading to huge lawsuits in Atlanta, Boston, and New York and critical investigative reporting like the Atlanta Journal-Constitution’s 1988 series called “The Color of Money.” Ironically, the rash of private predatory lending in the 1990s got a boost from government policies initiated by both President Clinton and George W. Bush to promote home ownership in “underserved” communities—that is, black and Hispanic neighborhoods. The federal government expanded the secondary mortgage market and reduced investor risk directly through government-sponsored enterprises. In short order, the predatory nature of lending there returned with fresh intentions under the guise of bad, subprime loans.
Only a handful of cases have produced evidence of a conscious desire to defraud minority buyers, of course. Yet despite the lack of smoking racist guns, there are ways to unearth the clear racial dimensions of the fraud. The key evidence they reveal is racial targeting.
Subprime lenders specifically targeted minorities not because they were unsophisticated or earned a lower income. They were marked for their race and ethnicity. All else being equal, black and Hispanic loan applicants got bad loans relative to their white counterparts in the mortgage market—something people like Kathe Newman knew years before the housing crash. In 2000, the Department of Housing and Urban Development released a study that showed that black borrowers were five times more likely than white borrowers of the same household income to receive subprime loans. Even controlling for median neighborhood income, the disparity held. More incomprehensible was the difference between wealthy blacks and poor whites. “Borrowers in upper-income black neighborhoods were twice as likely as homeowners in low-income white neighborhoods to refinance with a subprime loan,” according to the report’s authors. “In 1998, 18 percent of borrowers living in low-income white neighborhoods relied upon a subprime loan, compared with 39 percent of borrowers living in upper-income black neighborhoods.”
Four years later, a study by the Association of Community Organizations for Reform Now (ACORN) confirmed HUD’s findings, showing that by then subprime lenders accounted for more than half of all refinance loans made in predominantly black neighborhoods, compared to just 9 percent in white ones. The ACORN study showed that middle-income minority home owners like those in Newark’s Vailsburg neighborhood were especially targeted for risky loans. Almost 28 percent of refinance loans made to middle-income blacks originated with subprime lenders and nearly 20 percent for Latinos; only 7.6 percent of middle-income whites held such loans. Finally, New York University’s Furman Center reported in 2009 that racial targeting by subprime lenders can be tracked by levels of neighborhood segregation. For example, a Hispanic borrower seeking a mortgage in a neighborhood with a low percentage of nonwhite residents had a 14 percent chance of receiving a subprime loan, while that probability more than doubled to 31 percent in a neighborhood with a high concentration of nonwhites. How did the lenders know their targets were black and Hispanic? They probably used the same data available to researchers under the federal Home Mortgage Disclosure Act, which tracks mortgages by borrower ethnicity and census tract. In any event, the strategy of racial targeting in the lending industry systematically exploited the proxy of place for the reality of a borrower’s race, producing acts of financial racism that victimized both individual home owners and the entire neighborhood around them. The result was one of the most devastating assaults on the structure and content of black and Latino mobility since Jim Crow.
The third example of contemporary racism is about the near-permanent limitation on life chances for some that is caused by our country’s rules about criminal justice. These rules and practices—from police behavior and incentives to prosecutorial power and on through the policies behind our criminal laws—have also come a long way since the 1960s. But the clear direction has been toward mass incarceration of human beings who, upon release, re-enter a society that despises those who have been incarcerated. The vast majority of these people are young black and brown men. When I first discovered the patterns of our criminal justice system, I was reminded of the absurdist bureaucracy that condemns the character Josef K. in Franz Kafka’s book “The Trial.” Josef is a working man suddenly arrested and charged with an unknown crime and forced into the impossible dilemma of defending his life amid a system of justice with no known logic, rules, or fairness. Frustrated and broken, Josef eventually dies without ever knowing why the state wanted to discipline him.
That’s pretty awful stuff. But our system of justice—leading inexorably to confinement for so many people—differs from Kafka’s in one frightening sense. It appears to have a purpose. The point is to marginalize a certain proportion of the population. Why would a free society encourage marginalization through the power of its government? According to some scholars and advocacy institutions that follow crime policy, the system for fighting crime has become a politically profitable, financially lucrative, self-perpetuating business—the business of mass incarceration. The main proponent of this view is Michelle Alexander, who argues in her book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” that the goal of our laws since about 1980 has been to substitute a new system of social control on black and Latino communities after the fall of the Jim Crow system. Whether she is right or whether the case can be made that the justice system is at least rigged against black and brown people demands a review of circumstantial evidence. Circumstantial evidence is often used in the absence of direct evidence—smoking guns, eyewitnesses, taped confessions of racial animus—and is accepted all the time in criminal cases. Circumstantial evidence raises inferences that something is true; the stronger the evidence, the more compelling the inference. Before we get to it, however, let’s look at the facts of the “crime” itself, the disproportionate targeting and incarceration of black and brown men, their families, and, once again, the places where they tend to live.
According to Alexander and others, the facts begin in 1980, the year Ronald Reagan was elected. Crime had been rising during the 1970s, but the epidemic of crack cocaine that transformed the public’s idea of criminal behavior did not actually occur until about 1984. (I happened to grow up in one of the earliest crack neighborhoods in Upper Manhattan and saw it engulf some of my best friends.) Nevertheless, as Alexander points out, President Ronald Reagan declared a “War on Drugs” in 1982, a full two years before we knew what crack was. The statistics begin from about there, when fighting crime went from being a local police activity to a coordinated approach involving the FBI, CIA, Pentagon, new laws about drug offenses, mandatory sentencing, constitutional guarantees, and a whole lot of media coverage.
Incarceration rates exploded in the early 1980s and have only recently begun to trail off. Between 1980 and 2000, the prison and jail inmate population increased three hundred thousand to over two million; by 2007, seven million people were either locked up, on probation, or on parole. For blacks, the drug-related incarceration rates quadrupled in just three years, then began a steady but precipitous increase. In 2000, black incarceration rates were twenty-six times what they were in 1983. Latino incarceration rates for drug-related offenses were twenty-two times their 1983 levels. Whites, too, experienced an increase of eight times the rate of drug-related incarceration during the same period. Put another way, in 2006, one out of every fourteen black men was locked up compared to one in 106 white men. No other country imprisons its people as frequently or for as long as does the United States. Nobody. It was not always this way. What changed was the conservative backlash on drugs, part of what Thomas Edsall referred to as the coded call by Barry Goldwater, George Wallace, and Richard Nixon for “law and order.” As Alexander writes:
Convictions for drug offenses are the single most important cause of the explosion in incarceration rates in the United States. Drug offenses alone account for two-thirds of the rise in the federal inmate population and more than half of the rise in state prisoners between 1985 and 2000. Approximately half a million are in prison or jail for a drug offense today, compared to an estimated 41,100 in 1980—an increase of 1,100 percent. Drug arrests have tripled since 1980. As a result, more than 31 million people have been arrested for drug offenses since the drug war began. . . . The vast majority of those arrested are not charged with serious offenses.
Circumstantial Evidence of a Racist System
What the larger national statistics on racial disparities in crime fighting mean is that, because of the correspondence between race and economic status, black and brown men in poor communities have an entirely different experience of constitutional freedom than do the rest of us. Thanks to racial and economic segregation, we already know that they are not hard for the police to find. In ghettos and barrios across the nation, much higher proportions of young men are routinely stopped and searched by police, arrested or detained, released or charged, and if charged, then usually pleading to something that stands as a conviction on their records. A great many are then incarcerated. The cycle then starts over as they become unemployable, uneducated, and part of an insidious interdependency on one of the best-financed arms of government—law enforcement and the courts. Once they have served time for a felony conviction, they are persona non grata in most job settings, denied housing benefits and student loans, disallowed on juries, and, in many states, even lose the right to vote. Many states have elaborate laws that make the ex-offender a debtor responsible for paying many of the costs of his legal assistance, jail book-in fees, court costs, and child-support enforcement—all on penalty of being returned to jail if he doesn’t pay. The pariah status of ex-offenders ripples out in permanent multiples as these are the sons, husbands, and fathers of whole communities. This draconian state of affairs ought to be justified. The first question we should ask is whether the focus on people from these areas and not others is supported by facts on the ground.
The answer seems to be not at all. Crack had not even appeared in U.S. cities when President Reagan declared war on drugs, but what followed was an unprecedented federal commitment to funding drug-related crime. Almost immediately crime budgets rose, creating incentives to use the money in order to keep getting it. For instance, Alexander reports that FBI antidrug funding jumped from $8 million to $95 million between 1980 and 1984, the Department of Defense anti-drug budget jumped from $33 million to $1.042 million between 1981 and 1991, and Drug Enforcement Administration spending rose from $86 million to $1.026 million during the same decade. Meanwhile, crack hysteria became ubiquitous in media accounts, the scourge of a generation that had to be stopped at all costs. However, it was not a scourge everywhere, only among ghetto communities. This can be seen in the disparate treatment for cocaine-related crimes that was legislated by Congress as part of the $2 billion crime bill in 1986. That law and the 1988 Anti-Drug Abuse Act authorized new mandatory minimums for first-time offenders, revoked benefits for people connected with drug busts, and added the death penalty for some federal drug offenses. Yet the focus was always on crack cocaine, not powder cocaine. Of course, crack was the cheap, rock-based ghetto alternative to the expensive powder snorted disproportionately by whites. The difference in mandatory penalties? You’d get the same prison time for one gram of crack as you would for one hundred grams of powder. The former essentially punished users and small-time dealers, while the latter only dealers.
Studies of police practices demonstrate a tendency to focus on not where the drugs are as much as where the drugs are easiest to find. For example, a Seattle University study published in 2001 found that racial stereotypes permeated Seattle policing and explained high rates of black drug arrests, not offending behavior. In fact, Seattle police followed their stereotypes even when actual tips directed them elsewhere. “Seattle residents were far more likely to report suspected narcotics activities in residences—not outdoors—but police devoted their resources to open-air drug markets and to the one precinct that was leastlikely to be identified as the site of suspected drug activity in citizen complaints,” according to Alexander. “In fact, although hundreds of outdoor drug transactions were recorded in predominantly white areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transactions was much lower.”
Well, given the huge disparity between the arrest, charging, and incarceration rates by race, were black and brown drug offenders and dealers more numerous than whites? Again the answer seems to be not at all. A 2000 study showed that white youth were a third more likely to sell drugs than were blacks. Government data show that “blacks were no more likely to be guilty of drug crimes than whites and that white youth were actually the most likely of any racial or ethnic group to be guilty of illegal drug possession or sales,” Alexander writes. White youths are also more often in emergency rooms than are blacks as a result of their drug use. And it’s not like drug sales present a clandestine opportunity for racial mixing. As Alexander reminds us, “Whites tend to sell to whites; blacks to blacks. University students tend to sell to each other. Rural whites, for their part, don’t make a special trip to the ’hood to purchase marijuana. They buy it from somebody down the road.”
The last question is the thorniest: why did we build a system that seems hell-bent on funding the complete marginalization of so many black and brown people, many of them non-dangerous drug users doing what even more whites were doing? This is difficult to answer, but any attempt has to take at least two paths, the administrative and the political. By administrative, I’m referring to the policies followed by law enforcement agencies and districts attorney together with the direction they were given by courts. After all, crime fighting may be a business, but it’s a business subject to constitutional constraints. By political, I’m referring to what might have been behind all those policies—that is, what interests were served by our obsession with locking up men (and increasingly women) of color.
As for the administrative side of the criminal justice system, it seems clear that by the mid-1980s a great many financial incentives aligned to make fighting drugs in minority neighborhoods a top priority for police departments, which wanted larger budgets, and prosecutors’ offices, which wanted to bolster their tough-on-crime bona fides. In this way, the momentum toward a system of mass incarceration became self-executing. Specifically, the creation of two government funding streams—the Edward Byrne Memorial State and Local Enforcement Assistance Program as well as federal forfeiture laws—launched continuous incentives to police forces to make arrest numbers regardless of the impact on crime reduction. Since 1988, according to Alexander, Byrne grants increased the funding and weaponry to localities willing (who wouldn’t?) to establish specialized narcotics task forces. This is why your local police precinct now has such military hardware as M16 rifles, grenade launchers, and Black Hawk helicopters. This is also why every American now knows what a SWAT team is, even though they were originally designed to be a specialized few used for hostage situations and bank heists. Alexander writes that in the entire United States, “[b]y the early 1980s, there were three thousand annual SWAT deployments, by 1996 there were thirty thousand, and by 2001 there were forty thousand.” Beyond the incentives to beef up, however, were incentives to eat what you killed under forfeiture laws that allow police to keep the cash and assets seized during drug raids. These raids might be based on mere suspicion, yet the fruits of the raid could be kept unless challenged. Thanks to arcane rules that, until very recently, made it difficult and costly to get one’s property back, 80–90 percent of forfeitures went unchallenged. As Eric Blumenson and Eva Nilsen demonstrated in their research, forfeitures gave police a pecuniary interest in the drug trade. The more you bust, the more you keep.
Prosecutorial power has also increased dramatically since the 1980s while budgets for free legal representation for indigent defendants have shrunk. The power comes largely from the threat of harsh mandatory sentences that became vogue during the crack epidemic. Prosecutors have unreviewable discretion to charge and overcharge as they see fit, a formidable plea bargaining chip even in the absence of strong evidence of guilt. “[S]imply by charging someone with an offense carrying a mandatory sentence of ten to fifteen years or life,” Alexander writes, “prosecutors are able to force people to plead guilty rather than risk a decade or more in prison. Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause but which they seriously doubt they could ever win in court.” Given the financial costs of a capable defense, prosecutors rarely ever face that risk. Almost nobody goes to trial.
Meanwhile, the interpretation of a criminal defendant’s liberty interests changed dramatically, as a much more conservative Supreme Court continues to overhaul the constitutional overhaul that occurred briefly during the 1960s and 1970s. The Court has blessed a free range of police behaviors that might surprise many Americans if they (or their sons) were affected by them. Even without probable cause to suspect that someone’s doing wrong, police may now stop and detain people on the street or in their cars, frisk them, and even conduct full-fledged searches as long as they receive “consent.” Yet as you may assume, people rarely tell cops no, and cops are under no legal obligation to tell them they have a right to refuse. These limitations on the Fourth Amendment have led to raids, street sweeps, and other tactics that can only be called fishing expeditions. The DEA’s Operation Pipeline, for example, trained officers to do just that. According to Alexander, “It has been estimated that 95 percent of Pipeline stops yield no illegal drugs. One study found that up to 99 percent of traffic stops made by federally funded narcotics task forces result in no citation and that 98 percent of task-force searches during traffic stops are discretionary searches in which the officer searches the car with the driver’s verbal ‘consent’ but has no other legal authority to do so.” These are the tools that encouraged so much racial profiling across the nation during the last decade and a half. In New York City, following the deaths of unarmed black immigrants by police, racial profiling of black and brown men under the strident leadership of Mayor Rudolph Giuliani drew national attention. However, little changed under his more moderate successor, Michael Bloomberg. “The NYPD stopped five times more people in 2005 than in 2002—the overwhelming majority of whom were African American or Latino,” Alexander notes.
According to a study by the New York Civil Liberties Union, the New York Police Department stopped and frisked about 533,000 men in 2012, 87 percent of whom were black or Latino and 90 percent were innocent of wrongdoing. Though the program is justified as a way to find illegal guns, most of the arrests were for marijuana possession (5,000), not guns (729). As a result of Supreme Court decisions since 1987, claims of racist police or prosecutorial practices are nearly impossible to prove.
Why would our politics allow us to continue spending so lavishly to lock up so much human capital when the results are so racially skewed and offer so little evidence of crime-fighting success? Alexander’s answer is that mass incarceration is the new Jim Crow, a deliberate form of social control over racial minorities. It may be. Certainly, the policies that gave rise to these funding priorities, exercises of discretion, and constitutional interpretations followed a clear “law and order” path that began after the 1960s urban riots, but reached full steam under Presidents Reagan, George H. W. Bush, and Bill Clinton. For politicians everywhere, presenting oneself as tough on crime has been a cherished virtue among voters for decades now, a sure way to prevent us from slipping into lawlessness. What is odd, however, is the concentration of crime. Here again, segregation plays a hand. Since crime is concentrated in areas of concentrated poverty, the broader public’s willingness to fund tough and expensive policing seems irrational. That same public expresses no such desire to fund schools in areas of concentrated poverty at higher levels, for instance. Maybe Alexander asserts too much intention on the part of the myriad forces of social control, a coordination of efforts that seems too perfect for the government we know. Yet something is clearly wrong with a criminal justice system that produces so much injustice. And now that crack has at least subsided as an epidemic and prison costs are crushing state and local budgets, people are rethinking our incarceration policies. But are they doing so for the right reasons?"