The New Jim Crow

by Michelle Alexander

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What are the court cases and laws mentioned in The New Jim Crow?

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Alexander uses Ruffin v Commonwealth and California v Acevedo to show that the United States' history of structural racism is cyclical. In the first iteration, slavery was abolished but replaced by Jim Crow. A century later, Jim Crow was abolished but replaced by mass incarceration. The legal cases Alexander cites in her book are meant to support this claim: they are mentioned to help tell the story of how these transitions took place so as to prove her overall thesis that mass incarceration is a new way for America to maintain its "racial caste" system.

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The New Jim Crow tracks the ways that United States' law and custom has evolved from the Civil War to the present to maintain what Michelle Alexander calls America's "racial caste system" in various iterations. The thesis of the book is that the history of race relations in America can be divided into thee major periods corresponding to three such iterations:

1) slavery, which was foundational to American society and culture and persisted in its classical form until the Civil War and reconstruction in the 1860s;

2) Jim Crow, which emerged in the wake of reconstruction as a way to keep the "racial caste" system intact and persisted until the civil rights movement; and

3) mass incarceration, which emerged in response to the civil rights movement just as Jim Crow emerged in response to reconstruction.

The laws and court cases that Alexander tracks in the book are meant to help her tell the story of how these transitions took place in order to prove her overall thesis: mass incarceration is the current way that America maintains its "racial caste" system.

Two important pieces of legislation serve as examples in her analysis of the transition from slavery to Jim Crow in response to Reconstruction. One is the Civil Rights Act of 1866, which was intended to "bestow full citizenship upon African Americans" (29). This law, as well as the 14th Amendment, was passed to counter the "black codes" passed at the state level, which returned black Americans to a state close to slavery. The impact of this legislation, however, was "largely symbolic," especially in light of language in the 13th Amendment that abolished slavery except as punishment for a crime. This brings me to the case Ruffin v Commonwealth (1871), in which the Supreme Court of Virginia "put to rest any notion that convicts were legally distinguishable from slaves" (31). Part of Alexander's point in recounting this history is to point out that the civil rights legislation of the 1960s was not the first time that the United States legally abolished one form of structural racism only to have it return in other forms.

This brings me to Alexander's treatment of the transition from Jim Crow to mass incarceration a century after Reconstruction. Much of this revolves around the so-called "War on Drugs." Alexander cites Supreme Court Justice Thurgood Marshall, who "felt compelled to remind his colleagues that there is, in fact, 'no drug exception' written into the constitution" (61). Alexander's point is that the war on drugs provided exactly the same kind of "exception" to civil rights legislation in the wake of the civil rights movement that the 13th Amendment did to reconstruction legislation a century earlier. The pattern is the same: abolish one racist system but create a zone of exception that you can then fit all the old forms of discrimination into.

Alexander cites a number of laws and Supreme Court cases having to do with the War on Drugs to demonstrate that this is the case. In California v Acevedo, for example, the court ruled in favor of warrantless searches and seizures of property in drug cases, creating the legal grounds for such racist policing tactics as "stop and frisk" that persist to this day. According to Alexander, "The first major sign that the Supreme Court would not allow the 4th Amendment to interfere with the prosecution of the War on Drugs came in Florida v Bostick," in which the court upheld the warrantless search of a man who had been sleeping in the back of a Greyhound bus and ended up being charged with trafficking cocaine.

The key idea is that these cases created "exceptions" to the rights supposedly universally granted to American citizens under the pretext of fighting the War on Drugs. Because of this, police were allowed to specifically target black and brown Americans so as to create a criminalized "under-caste" of people convicted of felony offenses—especially drug offenses—who, due to the provisions of the 13th Amendment, can be disenfranchised for life and put to hard-labor conditions in prison that resemble slavery, and they can be denied public housing and legally subjected to employment discrimination when they get out.

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Among the laws and cases presented, those concerning the death penalty and education stand out.

In McKleskey v. Kemp, in 1987, the Supreme Court ruled that a death sentence be allowed to stand. Although there was statistical evidence showing racial bias in the way the state of Georgia implemented the death penalty, this sentence could not be overturned in McCleskey. The court ruled that there was no clear evidence of discriminatory "purpose." Racial discrimination would apply only when the prosecutor or jury was proved to have intentionally targeted him due to his race. The implications for future racial bias claims were that implicit bias or evidence of systemic discrimination does not in itself constitute violations of equal protection.

In McLauirin v. Oklahoma, the case concerned higher education and separate but equal facilities. George McLaurin, an African-American man, had applied to a doctoral program at the University of Oklahoma. In 1950, the university did not provide a way for McLaurin to attend classes separately from whites. The Supreme Court ruled against the university, saying it was required to make all facilities available to African Americans.

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In The New Jim Crow, Michelle Alexander looks at several laws and court cases to analyze the ways in which the United States legal system disadvantages African Americans. Alexander identifies mandatory minimums and three-strikes laws as major contributors to the mass incarceration epidemic. Mandatory minimums are laws that attach mandatory prison sentences to certain kinds of offenses. These laws are controversial among judges, who tend to feel that they reduce judicial discretion and prevent them from handing down proportionate sentences. Nevertheless, the Supreme Court has often ruled in favor of mandatory minimum sentencing laws. For example, in the case Harmelin v. Michigan, a first-time offender was sentenced to life in prison for attempting to sell 672 grams of crack cocaine. The Supreme Court did not find this sentence to be “cruel and unusual” and ruled that it was proportionate to the crime. Three-strikes laws (which many states have implemented) are another form of mandatory minimum law. Under most three-strikes laws, after a third offense is committed, the defendant is given a mandatory harsh sentence—usually ranging from 25 years to life—regardless of nature or context of the three offenses. Alexander discusses the famous three-strikes Supreme Court case Lockyer v. Andrade. In this case, two defendants were attempting to challenge California’s controversial and severe three-strikes law. Under this law, one of the defendants received a sentence of 25 years without parole for stealing three golf clubs while the other defendant received 50 years without parole for stealing some children’s videotapes from Kmart. The Supreme Court ruled that while these sentences were harsh, they were not unconstitutional.

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