Law and Disorder

The new Jim Crow: Mass incarceration in the age of colorblindness

 By A.J. Wagner

It started in New York State. After years of trying to deal with men and women addicted to drugs, Governor Nelson Rockefeller gave up. He was tired of the heroin users clogging the sidewalks, tired of the murder rate that was four times as high as today and tired of the resistance to treatment. He had tried rehabilitation, jobs programs, treatment and housing but none of it seemed to work. So he hatched a plan.

He decided to criminalize drug use and enforce long-term sentences on those who used or sold illegal substances. He insisted on mandatory life sentences for pushers. No probation, no parole.

There were about 330,000 Americans in prison in 1973 when Rockefeller’s suggestion turned into law. As state after state and the federal government adopted the same approach, the prison population grew. So did the uneven enforcement. Now, there are around 2.3 million Americans behind bars. We are the most imprisoned country in the world with a highly disproportionate number of African Americans and Hispanics.

Last Tuesday, Professor Michelle Alexander of the Ohio State Law School, presented a lecture at the University of Dayton on her book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” She also presented statistics:

– Since 1971, there have been more than 40 million arrests for drug-related offenses.

– Even though blacks and whites have similar levels of drug use, blacks are ten times as likely to be incarcerated for drug crimes.

– There are more blacks under correctional control today – in prison or jail, on probation or parole – than were enslaved in 1850, a decade before the Civil War began.

– As of 2004, more African American men were disenfranchised – due to felon disenfranchisement laws – than in 1870, the year the Fifteenth Amendment was ratified prohibiting laws that explicitly deny the right to vote on the basis of race.

– In 2005, four out of five drug arrests were for possession not trafficking, and 80 percent of the increase in drug arrests in the 1990s was for marijuana.

– There are 50,000 arrests for low-level pot possession a year in New York City, representing one out of every seven cases that turn up in criminal courts.  Most of these arrested are black and Hispanic men.

– Nearly one-third of black men will spend time in prison in their lifetime.

When I was a judge in the Montgomery County Common Pleas Court, I saw dozens of drug offenders in a week. They were almost always poor and most of them were African American. I rarely saw drug users from Oakwood, Centerville or Vandalia. Yet, Michelle Alexander will tell you that the chance of someone doing drugs in these suburbs is every bit as likely as someone doing drugs in the city. Dealing drugs is also as likely.

In “The New Jim Crow,” Alexander explains why the disparity exists. The drug war is almost exclusively focused on the urban core. Suburbs and rural communities don’t have large drug task forces. They don’t have undercover investigations in the same numbers as cities. Suburbs have drugs, but nowhere near the level of drug enforcement that occurs in the city.

The result is devastating. Alexander points out that African American families haven’t been this torn apart since slavery. African American men are removed from their families and their neighborhoods in large numbers. They can’t obtain employment because they have felony records. They can’t get a license to open businesses such as real estate, barbering, heating and cooling contracting, day care operation and so much more. Every felony imposes a life sentence of sanctions such as the banning from public housing, food assistance, certain scholarships and more. There are more than 400 possible sanctions that can apply to a felon, and they apply for life.

Inscribed on the front of the Supreme Court of the United States building are the words “Equal Justice Under Law.” It is believed that this phrase comes from Chief Justice Melville Fuller in the case of Caldwell v. Texas. In 1891 Fuller wrote: “By the Fourteenth Amendment the powers of the States in dealing with crime within their borders are not limited, but no State can deprive particular persons or classes of persons of equal and impartial justice under the law.”

The Fourteenth Amendment states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

There is clearly something constitutionally amiss in the enforcement of our drug laws. Until our drug laws are equally enforced, our cities will suffer from the injustice of “The New Jim Crow.”

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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