7.6 Mass Incarceration and the New Jim Crow
Alexandra Olsen
The war on drugs is one of the major drivers of the prison population in the United States. In 1971, President Richard Nixon declared a war on drugs, dedicating increased federal funding and resources to quelling the supply of drugs in the United States. This war continued to ramp up, and between 1980 and 2010, the U.S. prison population quintupled. Mass incarceration refers to the overwhelming size and scale of the U.S. prison population.
Some of this dramatic increase was due to the public portrayal of crack cocaine as a highly addictive drug sweeping its way through America. Politicians capitalized on the resulting hysteria and passed policies that rapidly increased the prison population. Even so, the vast majority of arrests and enforcement were not of high-level, violent dealers but, more often, small-time dealers or people struggling with addiction. In fact, during the 1990s, the period of the largest increase in the U.S. prison population, the vast majority of prison growth came from cannabis arrests (King and Mauer 2005).
The 1980s and 1990s were also an era during which states turned to partnerships with private companies to meet the booming demand for facilities, leading to the rise of private prisons. Private prisons are for-profit incarceration facilities run by private companies that contract with local, state, and federal governments (figure 7.10). The business model of private prisons incentivizes them to keep their prisons as full as possible, while spending as little as possible on care for inmates. Down 16 percent from its peak in 2012, private prisons still held 8 percent of all people incarcerated at the state and federal level as of 2019 (The Sentencing Project 2021). Still, it is essential to note that the use of these facilities varies by local context. For instance, Oregon has no private prison facilities in the state, while Texas has the highest number of people incarcerated in private prisons.
From the inception of the war on drugs, racial biases were at the center of these policy changes. For instance, John Erlichman, one of Richard Nixon’s top advisors, explicitly admitted to this in a 2016 interview:
You want to know what this [war on drugs] was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with cannabis and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did. (Baum 2016)
Political sociologists have also traced this back to the so-called Southern strategy. The Southern strategy is a Republican Party political strategy to get White voter support through explicitly or implicitly coded racism against Black Americans. In the late 1970s and early 1980s, Republicans in the South mobilized seemingly race-neutral “tough on crime” appeals to draw support from southern White voters to pass policies like mandatory minimums, sentence enhancements, and other anti-drug policies. These policies impacted the incarceration rate for Black Americans compared to White Americans.
Even as the racial gap in incarceration has narrowed in recent years, the United States disproportionately incarcerates Black Americans. While Black Americans make up 13 percent of the population, they make up over 30 percent of incarcerated individuals (Gramlich 2019). Similar trends exist among Latinx Americans: while Latinx people comprise 16 percent of the U.S. population, they account for over 20 percent of incarcerated individuals (Gramlich 2019). In contrast, while White Americans comprise 64 percent of the population, they only make up 30 percent of those incarcerated (Gramlich 2019).
This network of policies and unequal institutional practices led to what scholar Michelle Alexander terms the New Jim Crow. The New Jim Crow refers to the network of laws and practices that disproportionately funnel Black Americans into the criminal justice system, stripping them of their constitutional rights as a punishment for their offenses in the same way that Jim Crow laws did in previous eras. Because of these new mass incarceration policies, a new iteration of the racial caste system has emerged: one in which Black Americans can legally be denied public benefits, housing, the right to vote, and participation on juries because of a criminal conviction.
Activity: Detention and Incarceration of Immigrants
In several ways, the detention of immigrants intersects with the system of mass incarceration. Recently, attention has been brought to how immigration law and criminal law have been combined in the form of “crimmigration” (Hernandez 2022). The combination of these laws has had a detrimental effect on immigrants. The same companies that run private prisons also play a role in running immigrant detention centers. Watch the following video exploring one of these centers in Colorado (figure 7.11).
https://www.youtube.com/watch?v=UttL8utsvLA
Then address the following questions:
- What are conditions like in immigration detention centers?
- How are the detention centers financed?
- Why might politicians continue to support the company?
Intersectionality of Criminal Justice Issues
While racial disparities are one of the most pressing and continuing concerns in the criminal justice system, other marginalized groups face similar institutional inequalities. Recently, there has been an uptick in incarceration rates of women and folks who identify as part of the LGBTQIA+ community. Between 1980 and 2019, the number of incarcerated women increased by more than 700 percent (The Sentencing Project 2022). Furthermore, while the United States incarcerates more men than women, the rate of growth of women’s incarceration has been twice as high as that of men since 1980 (The Sentencing Project 2022).
This increase in women’s incarceration is also directly connected to the disproportionate involvement of the LGBTQIA+ population in the criminal justice system. As of 2019, gay, lesbian, and bisexual individuals were over two times as likely to be arrested in the past 12 months than straight individuals (Jones 2021). This disparity particularly impacts lesbian and bisexual women, who are four times as likely to be arrested as straight women (Jones 2021). The high rates of gay, lesbian, and bisexual people behind bars can, in part, be attributed to the longer sentences courts impose on them (Meyer et al. 2017). Transgender individuals also report high arrest and incarceration rates and uncomfortable encounters with the police, with one in six transgender individuals having spent time incarcerated (Grant et al. 2011).
Individuals marginalized as a result of their sexual or gender identity may also face issues when incarcerated. These groups are more likely to be sexually victimized while incarcerated, placed into solitary confinement, and report current psychological distress (Meyer et al. 2017). Similarly, transgender and gender nonconforming individuals lack the same civil rights protections as other groups, which leads to poor treatment in incarceration facilities. For instance, President Trump revoked Obama-era federal guidance, which stated that people who are transgender and incarcerated should be held in facilities matching their gender identity and have access to gender-affirming healthcare services. Then, when President Biden took office, he again instituted the Obama-era guidance. This reversal from administration to administration is just one example of how contested federal and state political issues directly impact the lives of individuals.
Finally, the criminal justice system has significant problems with how it addresses mental health issues. In terms of policing, people with mental health issues are more vulnerable to experiencing violence at the hands of police. In 2015, 27 percent of police shootings involved a mental health crisis (Oberholtzer 2017). These inequalities by ability—whether due to disability or mental illness—are pervasive throughout the criminal justice system, including in incarceration.
Jails and prisons have been called modern-day asylums because of the high concentration of individuals with mental illnesses. About one-third of people in all federal or state prisons have been diagnosed with a mental illness, most of whom are not receiving treatment (Wang 2022). In some areas, these issues are even more acute. For instance, in Chicago’s Cook County jail, nearly 50 percent of the people incarcerated had some form of mental illness (Cook County Sheriff’s Office 2022).
Incarceration facilities rarely have the resources to address these mental health needs. More than 60 percent of people with a history of mental illness do not receive mental health treatment while incarcerated in state and federal prisons (Bronson and Berzofsky 2017). Even those on treatment regimens before incarceration often cannot continue that treatment once incarcerated. Over 50 percent of individuals taking medication for mental health conditions at admission did not continue to receive their medication once in prison (Reingle Gonzalez and Connell 2014).
It’s important to remember that we cannot talk about how identity impacts individuals’ experiences without taking an intersectional approach to these conversations. For instance, Black, Indigenous, and Latinx transgender people have significantly higher incarceration rates than White transgender people (Jones 2021). This is just one example of how identity is intersectional. To better understand how the criminal justice system impacts people, we must look at all of the different aspects of their identity—gender, race/ethnicity, class, sexuality, citizenship, ability, and other forms of group membership.
Licenses and Attributions for Mass Incarceration and the New Jim Crow
Open Content, Original
“Mass Incarceration and the New Jim Crow” by Alexandra Olsen is licensed under CC BY 4.0.
“Activity: Detention and Incarceration of Immigrants” by Matt Gougherty and Jennifer Puentes is adapted from “The State of Private Immigration Detention in the U.S. Revealed” by NowThis News, and is licensed CC BY 4.0. Modifications include framing activity and authoring questions.
Open Content, Shared Previously
Figure 7.10. “Eastern Oregon Correctional Institution” by Sam Beebe is licensed under CC BY-SA 2.0.
All Rights Reserved Content
Figure 7.11. “The State of Private Immigration Detention in the U.S. Revealed” by NowThis Impact is licensed under the Standard YouTube License.
the overwhelming size and scale of the U.S. prison population.
for-profit incarceration facilities run by private companies who contract with local, state, and federal governments.
a Republican party political strategy to get White voter support through explicitly or implicity coded racism against Black Americans.
a type of prejudice and discrimination used to justify inequalities against individuals by maintaining that one racial category is somehow superior or inferior to others; it is a set of practices used by a racial dominant group to maximize advantages for itself by disadvantaging racial minority groups.
a category of identity that ascribes social, cultural, and political meaning and consequence to physical characteristics.
a behavior that violates official law and is punishable through formal sanctions.
the network of laws and practices that disproportionately funnel Black Americans into the criminal justice system, stripping them of their constitutional rights as a punishment for their offenses in the same way that Jim Crow laws did in previous eras.
an organization that exists to enforce a legal code, which in the United States includes the police, courts, and corrections system.
a stratification system based on culture and honor. It is a closed system and has high status consistency.
an abbreviation for lesbian, gay, bisexual, transgender, queer, intersex, and asexual. The additional “+” stands for all of the other identities not encompassed in the short acronym. An umbrella term that is often used to refer to the community as a whole.
a person whose sex assigned at birth and gender identity are not necessarily the same.
a deeply held internal perception of one’s gender.
a term that refers to the behaviors, personal traits, and social positions that society attributes to being female or male
categories of difference organized around shared language, culture and faith tradition.
the sexual feelings, thoughts, attractions and behaviors individuals have toward other people.
any collection of at least two people who interact with some frequency and who share some sense of aligned identity.