Forman Critiques "Jim Crow" Analogy in Mass Incarceration Literature

James Forman, Jr. (Yale-law) has posted, "Racial Critiques of Mass Incarceration: Beyond the New Jim Crow," here.  The abstract of the paper, forthcoming in the N.Y.U. Law Review, follows.

In the five decades since black Americans won their civil rights, hundreds of thousands have lost their liberty. Blacks now make up a larger portion of the prison population than they did at the time of Brown v. Board of Education, and their lifetime risk of incarceration has doubled. Mass incarceration’s racial dimensions have led an emerging group of scholars to call the American criminal justice system a new form of Jim Crow. This Article examines the New Jim Crow analogy. I begin by pointing out that the analogy is extraordinarily compelling in some respects — for example, the analogy effectively draws attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals.

But despite its contributions, the Jim Crow analogy ultimately leads to a distorted view of mass incarceration. First, the Jim Crow analogy oversimplifies the origins of mass incarceration by highlighting the role of politicians seeking to exploit racial fears while minimizing other historical factors. Second, the analogy has too little to say about black attitudes towards crime and punishment, masking the nature and extent of black support for punitive crime policy. Third, the analogy’s exclusive focus on the War on Drugs diverts our attention from violent crime — a troubling oversight given the toll that violence takes on low-income black communities and the fact that violent offenders make up a plurality of the prison population. Fourth, the Jim Crow analogy obscures the fact that mass incarceration’s impact has been almost exclusively concentrated among the most disadvantaged African-Americans. Fifth, the analogy draws our attention away from the harms that mass incarceration inflicts on other racial groups, including whites and Hispanics. Finally, the analogy diminishes our understanding of the particular harms associated with the old Jim Crow.