In Prison Reform, Money Trumps Civil Rights

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"The legal scholar Derrick A. Bell foresaw that mass incarceration, like earlier systems of racial control, would continue to exist as long as it served the perceived interests of white elites.

Thirty years of civil rights litigation and advocacy have failed to slow the pace of a racially biased drug war or to prevent the emergence of a penal system of astonishing size. Yet a few short years of tight state budgets have inspired former "get tough" true believers to suddenly denounce the costs of imprisonment. "We're wasting tax dollars on prisons," they say. "It's time to shift course."

Newt Gingrich, the former House speaker, shocked many earlier this year when he co-wrote an essay for The Washington Post calling on "conservative legislators to lead the way in addressing an issue often considered off-limits to reform: prisons."

Republican governors had already been sounding the same note. As California was careering toward bankruptcy last year, Gov. Arnold Schwarzenegger lamented that more money was being spent on prisons than on education. Priorities "have become out of whack over the years," he said. "What does it say about any state that focuses more on prison uniforms than on caps and gowns?" Another Republican governor, John R. Kasich of Ohio, recently announced support for reducing penalties for nonviolent drug offenders as part of an effort to slash the size of the state's prison population.

A majority of those swept into our nation's prison system are poor people of color, but the sudden shift away from the "get tough" rhetoric that has dominated the national discourse on crime has not been inspired by a surge in concern about the devastating human toll of mass incarceration. Instead, as Professor Bell predicted, the changing tide is best explained by perceived white interests. In this economic climate, it is impossible to maintain the vast prison state without raising taxes on the (white) middle class.

Given this political reality, it is hardly a surprise to read a headline that says, "N.A.A.C.P. Joins With Gingrich in Urging Prison Reform," rather than the other way around. If there were ever an illustration of Professor Bell's theory that whites will support racial justice only to the extent that it is in their interests, this would seem to be it.

Of course, in the late 1970s, when Professor Bell, who now teaches at New York University School of Law, first advanced his theories, our prison population was much smaller. The Reagan revolution had not yet taken hold. No one knew that the war on drugs and the "get tough" movement would unleash a wave of punitiveness that would trap generations in ghettoes, and brand them criminals and felons. No one foresaw the caste-like system that would emerge, the millions who would be stripped of basic civil and human rights supposedly won in the civil rights movement " the right to vote, to serve on juries, and to be free of discrimination in employment, housing, education and public benefits.

Today, 2.3 million Americans are behind bars; the United States has the world's highest rate of incarceration. Convictions for non-violent crimes and relatively minor drug offenses " mostly possession, not sale " have accounted for the bulk of the increase in the prison population since the mid-1980s.

African-Americans are far more likely to get prison sentences for drug offenses than white offenders, even though studies have consistently shown that they are no more likely to use or sell illegal drugs than whites.

What to do now? Understandably, civil rights advocates and criminal justice reformers are celebrating this moment of what Professor Bell calls "interest convergence." They say we must catch the wave and ride it. Many have given up all hope of persuading the white electorate that they should care about the severe racial disparities in the criminal justice system or the racial politics that birthed the drug war. It's possible now, they say, to win big without talking about race or "making it an issue." Public relations consultants like the FrameWorks Institute " which dedicates itself to "changing the public conversation about social problems" " advise advocates to speak in a "practical tone" and avoid discussions of "fairness between groups and the historical legacy of racism."

Surely the Rev. Dr. Martin Luther King Jr. would have rejected that advice.

In 1963, in his "Letter From a Birmingham Jail," he chastised white ministers for their indifference to black suffering: "I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizens Counciler or the Ku Klux Klanner, but the white moderate who is more devoted to "order' than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, "I agree with you in the goal you seek, but I can't agree with your methods of direct action'; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season.' "

He continued: "We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people." Such language would not have tested well in a focus group. Yet it helped to change the course of history.

Those who believe that righteous indignation and protest politics were appropriate in the struggle to end Jim Crow, but that something less will do as we seek to dismantle mass incarceration, fail to appreciate the magnitude of the challenge. If our nation were to return to the rates of incarceration we had in the 1970s, we would have to release 4 out of 5 people behind bars. A million people employed by the criminal justice system could lose their jobs. Private prison companies would see their profits vanish. This system is now so deeply rooted in our social, political and economic structures that it is not going to fade away without a major shift in public consciousness.

Yes, some prison downsizing is likely to occur in the months and years to come. But we ought not fool ourselves: we will not end mass incarceration without a recommitment to the movement-building work that was begun in the 1950s and 1960s and left unfinished. A human rights nightmare is occurring on our watch. If we fail to rise to the challenge, and push past the politics of momentary interest convergence, future generations will judge us harshly."

[p-Michelle Alexander, an associate professor of law at Ohio State University, is the author of "The New Jim Crow: Mass Incarceration in the Age of Colorblindness."

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