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The new Jim Crow?

Our view: The NAACP and ACLU were right to protest racial disparities in Maryland's criminal justice system

6:00 AM EDT, June 18, 2012

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It is well documented that African-American and Hispanic men are arrested, convicted and jailed at far higher rates than whites, and that once they enter the prison system they usually serve longer terms as well. That's why the NAACP and the Maryland ACLU among others were right to ask the U.S. Commission on Civil Rights last week to take another look at the systematic racial disparities in the state's criminal justice system.

According to the Maryland Division of Corrections, 72 percent of the inmates in Maryland prisons are black, even though blacks make up only 29.4 percent of the population. And Maryland is not unique in that respect. Across the country, African-American men make up a disproportionate number of inmates in state and federal prisons, as well as among those incarcerated awaiting trial, on probation and parole.

Yet many studies have shown that African-Americans and other people of color do not commit significantly more crimes than whites. A 2010 study by theU.S. Department of Health and Human Services, for example, found that 9.1 percent of whites and 10.7 percent of blacks had used illegal drugs within the previous month. But even though the difference in drug use between the two groups was statistically small, black Marylanders were arrested at more than three and a half times the rate of whites for drug offenses, and the disparities continued throughout their encounters with the criminal justice system.

In fact, such differential outcomes for blacks and whites appear at every level of the system, from the officer on the beat's initial decision to make an arrest, to the bail commissioner's determination whether to grant bail and its amount, to prosecutors' choice of what charges to bring and judges' sentencing decisions. At every step along the way, minorities are treated more harshly, face a greater presumption of guilt, have fewer resources to defend themselves and suffer more severe penalties.

To date, most efforts to eliminate racial disparities in the criminal justice system have focused on uncovering the hidden biases and discriminatory attitudes of individual law enforcement officers, prosecutors, judges and juries who determine a suspect's fate at each stage of the process. In Maryland, for example, the ACLU challenged the racial profiling of highway motorists by state police that resulted in disproportionate numbers of black drivers being stopped. If such subjective cases of bias could be eliminated, so the theory goes, the system should be capable of producing equal justice for everyone regardless of race.

Civil rights advocates have also fought to overturn specific laws that clearly have a racially discriminatory effect. An example would be statutes that impose more severe penalties for possession of crack cocaine, which is more prevalent in black communities, than powder cocaine, which more often is used by whites. Or consider the racial profiling inherent in so-called "stop and frisk" laws that allow police to detain and search people without any evidence of wrongdoing. In New York City, more than 80 percent of the 600,000 people stopped and frisked by police last year were African-American or Hispanic.

But the pervasiveness and scale of the racial disparities in America's prisons have led some legal scholars to take a more radical view. They charge that the problems in the administration of justice in America run much deeper than the bias of a few bigoted law enforcement officers and court officials, and that the system itself is founded upon a deliberately discriminatory intent.

In her 2012 book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness," Ohio State University law professor Michelle Alexander argues that the explosive growth in the size of America's prison population over the last 30 years, of which blacks make up a vastly disproportionate share of the inmates, has become, in effect, an extension of the Jim Crow system that deprived African-Americans of their rights for much of the 20th century.

"In the era of colorblindness," Ms. Alexander writes, "it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion and social contempt. So we don't. Rather than rely on race, we use our criminal justice system to label people of color 'criminals' and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African-Americans. Once you're labeled a felon, the old forms of discrimination — employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service — are suddenly legal."

Since the 1980s, America's prison population has grown from 300,000 to more than 2 million people. The U.S. now has the highest incarceration rate in the world, surpassing even repressive regimes such as Russia, China and Iran. And the vast majority of inmates in U.S. prisons are black and Hispanic. Yet most Americans seem to think this situation is perfectly normal and never question when it might raise fundamental questions about the nature of American democracy. The NAACP and the ACLU are to be commended for thinking otherwise and pushing the civil rights commission to take up the matter.

Such an inquiry is unlikely to present easy answers, but it could produce objective data on the origins, costs, causes and effects of our present policies so that we can get a clearer idea of how they are shaping this country's future. The rapid growth of the prison population cannot go on forever, but no one seems to know how to avoid an impending crisis. What is certain is that if the criminal justice system can't deliver justice to the millions of Americans who are already languishing in the nation's prisons, it soon won't be able to deliver justice for anyone.