Saturday, March 1, 2014

Voter Suppression, the War on Drugs, and the New Jim Crow

In a speech at Georgetown University, on the actual anniversary of Abraham Lincoln's birth,
Attorney General Eric Holder advocated for the repeal of laws that prohibit millions of convicted felons from voting--EVER, calling them a vestige of the racist policies pursued by several Southern  states during what is popularly known as "the Jim Crow Era." Most of these policies, legitimized by the ruling of the Supreme Court in Plessey v. Ferguson, persisted until the
the passage of the Civil Rights and Voting Rights Acts of the mid-1960s. Though he did not specifically mention it in this speech, the enforcement machinery of the Voting Rights Act was eviscerated by the ruling of an equally reactionary Court in Shelby v. Holder last year. <Yes, the same Holder, because Shelby County, Alabama, in effect, sued the U. S. government, and it was the duty of the Attorney General to uphold its duly enacted laws.

According to New York Times reporter Matt Apuzzo, Holder "has made racial inequities a consistent theme, and in recent months he has made it clear he sees criminal justice and civil rights as inescapably joined." He has sued Texas and North Carolina to overturn voter-identification laws that studies show are more likely to keep minorities and the poor from voting. He is also urging Congress to eliminate mandatory minimum sentences for non-violent drug offences, and has encouraged low-level drug criminals sentenced during the crack epidemic to apply for clemency. (Because a close relative fell victim to the outrageous mandatory minimum sentencing guidelines , I was an early member of Citizens Against Mandatory Minimums.)  "On all the issues that he's framed, he's put these two themes together and he sees them as very much intertwined," says Marc Mauer, executive director of the Sentencing Project. "The criminal justice system is the civil rights issue of the 21st century" Mauer opines. "He hasn't used those words, but that is what I hear when I listen to him." Laws banning felons from the voting booth <like mandatory minimum sentences for relatively minor drug offenses>  disproportionately affect minorities. African Americans represent more than a third of the estimated 5.8 million people who are prohibited from voting. By way of comparison, they represent only about 12 percent of the total U.S. population. Nearly every state <and, again remember, it is the individual fifty states that control voting requirements, subject only to the requirements of a few Constitutional Amendments, and--until the Supreme Court moved to eviscerate its enforcement provisions--the Voting Rights Act of 1965.> prohibits actual prisoners from voting, but they vary widely on whether felons can vote once they have been released. Some states allow voting while on parole, others while on probation. Some states require waiting periods or have convoluted processes before felons are allowed to even register, let alone vote. In Mississippi <surprise, surprise> passing a $100 bad check carries a lifetime ban from voting. In Florida, Iowa, Kentucky, and Virginia, all felons are barred from voting for life unless they receive clemency from the governor. "This isn't just about fairness for those who are released from prison," the Attorney General insists, "It's about who we are as a nation. It's about confronting with clear eyes and in frank terms, disparities and divisions that are unworthy of the greatest justice system the world has ever known,"

Not surprisingly, felons denied the ballot are far more likely to have voted for Democrats than Republicans. A 2002 study conducted by scholars at the University of Minnesota and Northwestern University concluded that the 2000 presidential election <remember that miscarriage by the Supreme Court. Imagine a country governed by Gore instead of W. Think of how many young men and women would have been deprived of the honor of defending our way of life from Iraqi terrorists.> In the never--never-land of Florida, the state the Supreme Court allowed to put W. in office, 10 percent of the population was prevented from voting because of the ban on felons at the polls. <Guess for whom the great majority of those Floridians would have supported?>  According to Appuzo, state laws have generally become more lenient toward felon voting over the past two decades as crime decreased and voters cared less about tough-on-crime policies. Several prominent Libertarians have joined progressive Democrats in pushing for the right of felons to vote, albeit for different reasons. Right-wing Republican Senator Rand Paul of Kentucky, for example, has endorsed the efforts of legislative Democrats and Governor Steven L. Beshear to extend the ballot to felons. He has also called for reducing the state's prison population and an end to mandatory minimum sentences for low-level drug crimes.

To a significant extent, Holder's Georgetown speech, intentionally or not, reinforces at least some of the thesis put forth by Michelle Alexander in The New Jim Crow:Mass Incarceration in the Age of Colorblindness. (See my post of 1/22/14.) in which she proclaims that "an extraordinary percentage of black men in the United States are legally barred from voting today, just as they have been throughout most of American history. What has changed since the supposed end of the Jim Crow system, she asserts, "has less to do with the basic structure of our society than with the language we use to justify it." Since it is no longer "politically correct" to use race, explicitly as a justification for discrimination exclusion, and social contempt, "we use our criminal justice system to label people of color 'criminals,' and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that 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, 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."

Reading this book reminded me of Douglas Blackmon's Slavery by Another Name, but with a significantly different twist. Blackmon focuses on the post-Reconstruction South and the use of the criminal justice system to circumnavigate the 14th Amendment. Desperately in need of much  less than cheap labor to replace their newly emancipated slaves, Southern planters and industrialists inaugurated a system similar to the one illuminated by Professor Alexander. Since the 14th amendment allowed the indentured servitude of convicted criminals, Southern police departments and courts responded to this "deeply-felt need" by arresting, convicting, and sentencing large numbers of African Americans for a plethora of petty crimes, real and contrived. The prison system then "hired out" prisoners in chain-gangs and other forms of mass labor. As now, these "felons" were systematically deprived them of all political rights supposedly guaranteed by the 15th Amendment. This subterfuge became part and parcel of the original Jim Crow regime, along with poll taxes, grandfather clauses, literacy tests, and other devices for the disenfranchisement of blacks. Together, these perversions of the 13th, 14th, and 15th Amendments remained in force in most states until they were seemingly invalidated by the federal legislation of the 1960s. As impossible as it has seemed for the past four decades, those rights are once again in jeopardy because of the Supreme Court's "exercise in fantasy" embodied in Shelby v. Holder. Unless that decision can be overturned, the massive disenfranchisement of African Americans in several states is almost a certainty. What makes today's situation even more dire is the fact that Sothern states still needed cheap forced black labor back during the late 19th century. Not so in today's global highly technological economy. "Warehousing" those who are "superfluous" in that economy seems the only "rational" alternative.

Professor Alexander is quick to acknowledge that she has come to this conclusion "reluctantly." She admits that as recently as ten years ago, she would have argued strenuously against the central theme of her own book: "that something akin to a racial caste system exists in the United States." If Barack Obama had been elected president at that time, she would have argued that his electoral victory "marked the nation's triumph over racial caste--the final nail in the coffin of Jim Crow." Today, however, she has come to believe that his election has been tempered by "a far more sobering awareness": that what pundits proclaimed a transformative event has made little or no difference in the situation of lower and middle class African Americans. In fact, it has left most of them worse off than before.  It has fostered the debilitating illusion that most Americans have become permanently "colorblind,." that they reside in a Utopia where everyone is fairly measured by the color of their character, rather than by the color of their skin.

Alexander relates the story of her "conversion" in a few pages. Most of it occurred during her tenure as director of the Racial Justice Project of the ACLU. She gradually shifted her focus from discrimination in employment to criminal justice reform "and dedicated myself to the task of working with others  to identify and eliminate racial bias whenever and wherever it reared its ugly head." By the time she left the ACLU, she had become convinced  that the criminal justice "was not just another institution infected with racial bias--but rather a different beast altogether." It was only "quite  belatedly" that she came to see mass incarceration as a "stunningly comprehensive and "well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow." She admits to a certain amount of frustration in trying to get the traditional civil rights organizations to appreciate that mass incarceration is the linchpin of all other forms of racial discrimination.  People who have been incarcerated, she argues, 'rarely have difficulty identifying the parallels between these systems of social control." She also strongly disputes the argument that the War on Drugs "was launched in response to the crisis caused by crack cocaine in inner-city neighborhoods."  She insists that the WOD preceded the crack panic and that it "began at a time when illegal drug use was on the decline."  It also came at a time when "well-respected criminologists were predicting that the prison system would soon fade away," and when prison populations were steadily declining. .

In the past three decades during which we have waged this ersatz war, Alexander charges, the U.S. penal population has quintupled, from around 300,000 to more than two million, with drug-related convictions accounting for the majority of the increase.  The U.S. now has the highest incarceration rate in the world, surpassing even highly repressive regimes like Russia, China, and Iran. "The racial dimension of mass incarceration," she avers, "is its most striking feature, even though "people of all colors use and sell drugs at remarkably similar rates." In fact, various studies suggest that young white youths are more likely to engage in drug crimes than are people of color. Why then, she asks, is it that black men in several large cities have been imprisoned for drug crimes at rates of 25 to 50 times greater, and that as many as 80 percent of young African American men now have criminal records and "are thus subject to legalized discrimination for the rest of their lives."? These, she proclaims, are "a part of a growing undercaste permanently locked up and locked out of mainstream society." Her book, Alexander insists, "argues that mass incarceration is, metaphorically, the New Jim Crow, and that all those who care about social justice should fully commit themselves to dismantling this new racial caste system."

It is a virtual certainty that Mr. Holder would not agree completely with Professor Alexander's thesis about mass incarceration and the New Jim Crow, or if he is even aware of it. Even if he did fully concur ,his position in the Obama administration would prevent him from advocating it publicly. It seems more likely that his view, at this point, would closely mirror her own when she as director of the Racial Justice Project of the ACLU---that the criminal justice system is just another of the myriad institutions "infected with racial bias." The same is true for his personal opinion of the WOD, whatever it may be. Nevertheless, there are clearly broad areas of concurrence between the Attorney General and the author of The New Jim Crow, including the repeal of mandatory minimum sentencing, the restoration of voting rights to felons who have "served their time," and who were convicted of drug-related and other non-violent crimes. Although neither Holder or Alexander has explicitly branded mass incarceration of young black men a disenfranchisement conspiracy, per se, they agree that its continuation will have the same results. (Even Kentucky Republican Senator Rand Paul, the libertarians' libertarian, supports restoring voting rights for felons, and that "there are civil rights components to changing the sentencing laws." While he insists that such laws were "well-intentioned," Paul agrees that their implementation "can go overboard," and that "I don't think it was intended to have a racial outcome, but it did.") Since the Attorney General is also the point man in efforts to overturn--or at least profoundly mitigate--the effects of the Citizens United and Shelby County decisions, it is hard to imagine that he does not see all efforts to disenfranchise African Americans, minorities, and the lower classes as "all of one piece." It is also even harder to believe that Professor Alexander does not see an even more intertwined connection among mass incarceration and other means of voter suppression.   



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