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4

The Cruel Hand

A heavy and cruel hand has been laid upon us. As a people, we feel ourselves to be not only deeply injured, but grossly misunderstood. Our white countrymen do not know us. They are strangers to our character, ignorant of our capacity, oblivious to our history and progress, and are misinformed as to the principles and ideas that control and guide us, as a people. The great mass of American citizens estimates us as being a characterless and purposeless people; and hence we hold up our heads, if at all, against the withering influence of a nation’s scorn and contempt.1

—Frederick Douglass, in a statement on behalf of delegates to the National Colored Convention held in Rochester, New York, in July 1853

When Frederick Douglass and the other delegates to the National Colored Convention converged in Rochester, New York, in the summer of 1853 to discuss the condition, status, and future of “coloreds” (as they were called then), they decried the stigma of race—the condemnation and scorn heaped upon them for no reason other than the color of their skin. Most of the delegates were freed slaves, though the younger ones may have been born free. Northern emancipation was complete, but freedom remained elusive. Blacks were finally free from the formal control of their owners, but they were not full citizens—they could not vote, they were subject to legal discrimination, and at any moment, Southern plantation owners could capture them on the street and whisk them back to slavery. Although Northern slavery had been abolished, every black person was still presumed a slave—by law—and could not testify or introduce evidence in court. Thus if a Southern plantation owner said you were a slave, you were—unless a white person interceded in a court of law on your behalf and testified that you were rightfully free. Slavery may have died, but for thousands of blacks, the badge of slavery lived on.

Today a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave or a black person living “free” in Mississippi at the height of Jim Crow. Those released from prison on parole can be stopped and searched by the police for any reason—or no reason at all—and returned to prison for the most minor of infractions, such as failing to attend a meeting with a parole officer. Even when released from the system’s formal control, the stigma of criminality lingers. Police supervision, monitoring, and harassment are facts of life not only for all those labeled criminals, but for all those who “look like” criminals. Lynch mobs may be long gone, but the threat of police violence is ever present. A wrong move or sudden gesture could mean massive retaliation by the police. A wallet could be mistaken for a gun. The “whites only” signs may gone, but new signs have gone up—notices placed in job applications, rental agreements, loan applications, forms for welfare benefits, school applications, and petitions for licenses, informing the general public that “felons” are not wanted here. A criminal record today authorizes precisely the forms of discrimination we supposedly left behind—discrimination in employment, housing, education, public benefits, and jury service. Those labeled criminals can even be denied the right to vote.

Criminals, it turns out, are the one social group in America we have permission to hate. In “colorblind” America, criminals are the new whipping boys. They are entitled to no respect and little moral concern. Like the “coloreds” in the years following emancipation, criminals today are deemed a characterless and purposeless people, deserving of our collective scorn and contempt. When we say someone was “treated like a criminal,” what we mean to say is that he or she was treated as less than human, like a shameful creature. Hundreds of years ago, our nation put those considered less than human in shackles; less than one hundred years ago, we relegated them to the other side of town; today we put them in cages. Once released, they find that a heavy and cruel hand has been laid upon them.

Brave New World

One might imagine that a criminal defendant, when brought before the judge—or when meeting with his attorney for the first time—would be told of the consequences of a guilty plea or conviction. He would be told that, if he pleads guilty to a felony, he will be deemed “unfit” for jury service and automatically excluded from juries for the rest of his life.2 He would also be told that he could be denied the right to vote. In a country that preaches the virtues of democracy, one could reasonably assume that being stripped of basic political rights would be treated by judges and court personnel as a serious matter indeed. Not so. When a defendant pleads guilty to a minor drug offense, nobody will likely tell him that he may be permanently forfeiting his right to vote as well as his right to serve on a jury—two of the most fundamental rights in any modern democracy.

He will also be told little or nothing about the parallel universe he is about to enter, one that promises a form of punishment that is often more difficult to bear than prison time: a lifetime of shame, contempt, scorn, and exclusion. In this hidden world, discrimination is perfectly legal. As Jeremy Travis has observed, “In this brave new world, punishment for the original offense is no longer enough; one’s debt to society is never paid.”3 Other commentators liken the prison label to “the mark of Cain” and characterize the perpetual nature of the sanction as “internal exile.”4Myriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of “civic death” and send the unequivocal message that “they” are no longer part of “us.”

Once labeled a felon, the badge of inferiority remains with you for the rest of your life, relegating you to a permanent second-class status. Consider, for example, the harsh reality facing a first-time offender who pleads guilty to felony possession of marijuana. Even if the defendant manages to avoid prison time by accepting a “generous” plea deal, he may discover that the punishment that awaits him outside the courthouse doors is far more severe and debilitating than what he might have encountered in prison. A task force of the American Bar Association described the bleak reality facing a petty drug offender this way:

[The] offender may be sentenced to a term of probation, community service, and court costs. Unbeknownst to this offender, and perhaps any other actor in the sentencing process, as a result of his conviction he may be ineligible for many federally-funded health and welfare benefits, food stamps, public housing, and federal educational assistance. His driver’s license may be automatically suspended, and he may no longer qualify for certain employment and professional licenses. If he is convicted of another crime he may be subject to imprisonment as a repeat offender. He will not be permitted to enlist in the military, or possess a firearm, or obtain a federal security clearance. If a citizen, he may lose the right to vote; if not, he becomes immediately deportable.5

Despite the brutal, debilitating impact of these “collateral consequences” on ex-offenders’ lives, courts have generally declined to find that such sanctions are actually “punishment” for constitutional purposes. As a result, judges are not required to inform criminal defendants of some of the most important rights they are forfeiting when they plead guilty to a felony. In fact, judges, prosecutors, and defense attorneys may not even be aware of the full range of collateral consequences for a felony conviction. Yet these civil penalties, although not considered punishment by our courts, often make it virtually impossible for ex-offenders to integrate into the mainstream society and economy upon release. Far from collateral, these sanctions can be the most damaging and painful aspect of a criminal conviction. Collectively, these sanctions send the strong message that, now that you have been labeled, you are no longer wanted. You are no longer part of “us,” the deserving. Unable to drive, get a job, find housing, or even qualify for public benefits, many ex-offenders lose their children, their dignity, and eventually their freedom—landing back in jail after failing to play by rules that seem hopelessly stacked against them.

The churning of African Americans in and out of prisons today is hardly surprising, given the strong message that is sent to them that they are not wanted in mainstream society. In Frederick Douglass’s words, “Men are so constituted that they derive their conviction of their own possibilities largely from the estimate formed of them by others. If nothing is expected of a people, that people will find it difficult to contradict that expectation.”6 More than a hundred years later, a similar argument was made by an ex-offender contemplating her eventual release into a society that had constructed a brand-new legal regime designed to keep her locked out, fifty years after the demise of Jim Crow. “Right now I’m in prison,” she said. “Like society kicked me out. They’re like, ‘Okay, the criminal element, We don’t want them in society, we’re going to put them in prisons.’ Okay, but once I get out, then what do you do? What do you do with all these millions of people that have been in prison and been released? I mean, do you accept them back? Or do you keep them as outcasts? And if you keep them as outcasts, how do you expect them to act?”7

Remarkably, the overwhelming majority of ex-offenders struggle mightily to play by the rules and to succeed in a society seemingly hell-bent on excluding them. Like their forbears, they do their best to survive, even thrive—against all odds.

No Place Like Home

The first question on the minds of many released prisoners as they take their first steps outside the prison gates is where they will sleep that night. Some prisoners have families eagerly awaiting them—families who are willing to let their newly released relative sleep on the couch, floor, or extra bed indefinitely. Most, however, desperately need to find a place to live—if not immediately, at least soon. After several days, weeks, or months of sleeping in your aunt’s basement or on a friend’s couch, a time comes when you are expected to fend for yourself. Figuring out how, exactly, to do that is no easy task, however, when your felony record operates to bar you from any public housing assistance. As one young man with a felony conviction explained in exasperation, “I asked for an application for Section 8. They asked me if I had a felony. I said, ‘yes.’ . . . They said, ‘Well, then, this application isn’t for you.’”8

This young man had just hit his first brick wall coming out of prison. Anyone convicted of a felony—any felony—is automatically ineligible for public housing assistance for at least five years. Even after the five-year period has expired, those labeled “criminals” face a lifetime of discrimination in public and private housing markets. Housing discrimination against former felons (as well as suspected “criminals”) is perfectly legal. During Jim Crow, it was legal to deny housing on the basis of race, through restrictive covenants and other exclusionary practices. Today, discrimination against felons, criminal suspects, and their families is routine among public and private landlords alike. Rather than racially restrictive covenants, we have restrictive lease agreements, barring the new “undesirables.”

The Anti-Drug Abuse Act of 1988, passed by Congress as part of the War on Drugs, called for strict lease enforcement and eviction of public housing tenants who engage in criminal activity. The Act granted public housing agencies the authority to use leases to evict any tenant, household member, or guest engaged in any criminal activity on or near public housing premises. In 1996, President Clinton, in an effort to bolster his “tough on crime” credentials, declared that public housing agencies should exercise no discretion when a tenant or guest engages in criminal activity, particularly if it is drug-related. In his 1996 State of the Union address, he proposed “One Strike and You’re Out” legislation, which strengthened eviction rules and strongly urged that drug offenders be automatically excluded from public housing based on their criminal records. He later declared, “If you break the law, you no longer have a home in public housing, one strike and you’re out. That should be the law everywhere in America.”9 In its final form, the act, together with the Quality Housing and Work Responsibility Act of 1998, not only authorized public housing agencies to exclude automatically (and evict) drug offenders and other felons; it also allowed agencies to bar applicants believed to be using illegal drugs or abusing alcohol—whether or not they had been convicted of a crime. These decisions can be appealed, but appeals are rarely successful without an attorney—a luxury most public housing applicants cannot afford.

In response to the new legislation and prodding by President Clinton, the Housing and Urban Development Department (HUD) developed guidelines to press public housing agencies to “evict drug dealers and other criminals” and “screen tenants for criminal records.”10 HUD’s “One Strike Guide” calls on housing agencies to “take full advantage of their authority to use stringent screening and eviction procedures.” It also encourages housing authorities not only to screen all applicants’ criminal records, but to develop their own exclusion criteria. The guide notes that agency ratings and funding are tied to whether they are “adopting and implementing effective applicant screening,” a clear signal that agencies may be penalized for not cleaning house.11

Throughout the United States, public housing agencies have adopted exclusionary policies that deny eligibility to applicants even with the most minor criminal backgrounds. The crackdown inspired by the War on Drugs has resulted in unprecedented punitiveness, denying poor people access to public housing for virtually any crime. “Just about any offense will do, even if it bears scant relation to the likelihood the applicant will be a good tenant.”12

The consequences for real families can be devastating. Without housing, people can lose their children. Take for example, the forty-two-year-old African American man who applied for public housing for himself and his three children who were living with him at the time.13 He was denied because of an earlier drug possession charge for which he had pleaded guilty and served thirty days in jail. Of course, the odds that he would have been convicted of drug possession would have been extremely low if he were white. But as an African American, he was not only targeted by the drug war but then denied access to housing because of his conviction. Since being denied housing, he has lost custody of his children and is homeless. Many nights he sleeps outside on the streets. Stiff punishment, indeed, for a minor drug offense—especially for his children, who are innocent of any crime.

Remarkably, under current law, an actual conviction or finding of a formal violation is not necessary to trigger exclusion. Public housing officials are free to reject applicants simply on the basis of arrests, regardless of whether they result in convictions or fines. Because African Americans and Latinos are targeted by police in the War on Drugs, it is far more likely that they will be arrested for minor, nonviolent crimes. Accordingly, HUD policies excluding people from housing assistance based on arrests as well as convictions guarantee highly discriminatory results.

Perhaps no aspect of the HUD regulatory regime has been as controversial, however, as the “no-fault” clause contained in every public housing lease. Public housing tenants are required to do far more than simply pay their rent on time, keep the noise down, and make sure their homes are kept in good condition. The “One Strike and You’re Out” policy requires every public housing lease to stipulate that if the tenant, or any member of the tenant’s household, or any guest of the tenant, engages in any drug-related or other criminal activity on or off the premises, the tenancy will be terminated. Prior to the adoption of this policy, it was generally understood that a tenant could not be evicted unless he or she had some knowledge of or participation in alleged criminal activity. Accordingly, in Rucker v. Davis, the Ninth Circuit Court of Appeals struck down the “no-fault” clause, on the ground that the eviction of innocent tenants—who were not accused or even aware of the alleged criminal activity—was inconsistent with the legislative scheme.14

The U.S. Supreme Court reversed.15 The Court ruled in 2002 that, under federal law, public housing tenants can be evicted regardless of whether they had knowledge of or participated in alleged criminal activity. According to the Court, William Lee and Barbara Hill were rightfully evicted after their grandsons were charged with smoking marijuana in a parking lot near their apartments. Herman Walker was properly evicted as well, after police found cocaine on his caregiver. And Perlie Rucker was rightly evicted following the arrest of her daughter for possession of cocaine a few blocks from home. The Court ruled these tenants could be held civilly liable for the nonviolent behavior of their children and caregivers. They could be tossed out of public housing due to no fault of their own.

In the abstract, policies barring or evicting people who are somehow associated with criminal activity may seem like a reasonable approach to dealing with crime in public housing, particularly when crime has gotten out of control. Desperate times call for desperate measures, it is often said. The problem, however, is twofold: These vulnerable families have nowhere to go, and the impact is inevitably discriminatory. People who are not poor and who are not dependent upon public assistance for housing need not fear that, if their son, daughter, caregiver, or relative is caught with some marijuana at school or shoplifts from a drugstore, they will find themselves suddenly evicted—homeless. But for countless poor people—particularly racial minorities who disproportionately rely on public assistance—that possibility looms large. As a result, many families are reluctant to allow their relatives—particularly those who are recently released from prison—to stay with them, even temporarily.

No one knows exactly how many people are excluded from public housing because of criminal records, or even the number of people with criminal records who would be ineligible if they applied. There is no national data available. We do know, however, that there are several million ex-felons in the United States and that under existing rules everyone convicted of a felony is automatically ineligible for a minimum of five years. We also know there are tens of millions of Americans who have been arrested but never convicted of any offense, or convicted only of minor misdemeanors, and they too are routinely excluded from public housing. What happens to these people denied housing assistance or evicted from their homes? Where do they go? Thousands of them become homeless. A study conducted by the McCormick Institute of Public Affairs found that nearly a quarter of guests in homeless shelters had been incarcerated within the previous year—people who were unable to find somewhere to live after release from prison walls.

Prisoners returning “home” are typically the poorest of the poor, lacking the ability to pay for private housing and routinely denied public housing assistance—the type of assistance which could provide some much-needed stability in their lives. For them, “going home” is more a figure of speech than a realistic option. More than a half million people are released from prison each year, and for many, finding a new home appears next to impossible, not just in the short term, but for the rest of their lives. As a forty-one-year-old African American mother remarked after being denied housing because of a single arrest four years prior to her application, “I’m trying to do the right thing; I deserve a chance. Even if I was the worst criminal, I deserve a chance. Everybody deserves a chance.”16

Boxed In

Aside from figuring out where to sleep, nothing is more worrisome for people leaving prison than figuring out where to work. In fact, a study by the Vera Institute found that during the first month after release from prison, people consistently were more preoccupied with finding work than anything else.17 Some of the pressure to find work comes directly from the criminal justice system. According to one survey of state parole agencies, forty of the fifty-one jurisdictions surveyed (the fifty states and the District of Columbia) required parolees to “maintain gainful employment.”18 Failure to do so could mean more prison time.

Even beyond the need to comply with the conditions of parole, employment satisfies a more basic human need—the fundamental need to be self sufficient, to contribute, to support one’s family, and to add value to society at large. Finding a job allows a person to establish a positive role in the community, develop a healthy self-image, and keep a distance from negative influences and opportunities for illegal behavior. Work is deemed so fundamental to human existence in many countries around the world that it is regarded as a basic human right. Deprivation of work, particularly among men, is strongly associated with depression and violence.

Landing a job after release from prison is no small feat. “I’ve watched the discrimination and experienced it firsthand when you have to check the box,” says Susan Burton, an ex-offender who founded a business aimed at providing formerly incarcerated women the support necessary to re-establish themselves in the workforce. The “box” she refers to is the question on job applications in which applicants are asked to check “yes” or “no” if they have ever been convicted of a crime. “It’s not only [on] job [applications],” Burton explains. “It’s on housing. It’s on a school application. It’s on welfare applications. It’s everywhere you turn.”19

Nearly every state allows private employers to discriminate on the basis of past criminal convictions. In fact, employers in most states can deny jobs to people who were arrested but never convicted of any crime. Only ten states prohibit all employers and licensing agencies from considering arrests, and three states prohibit some employers and occupational and licensing agencies from doing so.20 Employers in a growing number of professions are barred by state licensing agencies from hiring people with a wide range of criminal convictions, even convictions unrelated to the job or license sought.21

The result of these discriminatory laws is that virtually every job application, whether for dog catcher, bus driver, Burger King cashier, or accountant, asks ex-offenders to “check the box.” Most ex-offenders have difficulty even getting an interview after they have checked the box, because most employers are unwilling to consider hiring a self-identified criminal. One survey showed that although 90 percent of employers say they are willing to consider filling their most recent job vacancy with a welfare recipient, only 40 percent are willing to consider doing so with an ex-offender.22 Similarly, a 2002 survey of 122 California employers revealed that although most employers would consider hiring someone convicted of a misdemeanor offense, the numbers dropped dramatically for those convicted of felonies. Less than a quarter of employers were willing to consider hiring someone convicted of a drug-related felony; the number plummeted to 7 percent for a property-related felony, and less than 1 percent for a violent felony.23 Even those who hope to be self-employed—for example, as a barber, manicurist, gardener, or counselor—may discover that they are denied professional licenses on the grounds of past arrests or convictions, even if their offenses have nothing at all to do with their ability to perform well in their chosen profession.

For most people coming out of prison, a criminal conviction adds to their already problematic profile. About 70 percent of offenders and ex-offenders are high school dropouts, and according to at least one study, about half are functionally illiterate.24 Many offenders are tracked for prison at early ages, labeled as criminals in their teen years, and then shuttled from their decrepit, underfunded inner city schools to brand-new, high-tech prisons. The communities and schools from which they came failed to prepare them for the workforce, and once they have been labeled criminals, their job prospects are forever bleak.

Adding to their troubles is the “spatial mismatch” between their residence and employment opportunities.25 Willingness to hire ex-offenders is greatest in construction or manufacturing—industries that require little customer contact—and weakest in retail trade and other service sector businesses.26 Manufacturing jobs, however, have all but disappeared from the urban core during the past thirty years. Not long ago, young, unskilled men could find decent, well-paying jobs at large factories in most major Northern cities. Today, due to globalization and deindustrialization, that is no longer the case. Jobs can be found in the suburbs—mostly service sector jobs—but employment for unskilled men with criminal convictions, while difficult to find anywhere, is especially hard to find close to home.

An ex-offender whose driver’s license has been suspended or who does not have access to a car, often faces nearly insurmountable barriers to finding employment. Driving to the suburbs to pick up and drop off applications, attend interviews, and pursue employment leads may be perfectly feasible if you have a driver’s license and access to a vehicle, but attempting to do so by bus is another matter entirely. An unemployed black male from Chicago’s South Side explains: “Most of the time ... the places be too far and you need transportation and I don’t have none right now. If I had some I’d probably be able to get one [a job]. If I had a car and went way into the suburbs, ’cause there ain’t none in the city.”27 Those who actually land jobs in the suburbs find it difficult to keep them without reliable, affordable transportation.

Murray McNair, a twenty-two-year-old African American, returned to Newark, New Jersey, after being locked up for drug offenses. He shares a small apartment with his pregnant girlfriend, his sister, and her two children. Through a federally funded job training program operated by Goodwill Industries, McNair found a $9-an-hour job at a warehouse twenty miles—two buses and a taxi ride—away. “I know it’s going to be tough,” he told a New York Times reporter. “But I can’t be thinking about myself anymore.”28

The odds of McNair, or any ex-offender in a similar situation, succeeding under these circumstances are small. If you make $9 per hour, but spend $20 dollars or more getting to and from work every day, how do you manage to pay rent, buy food, and help to support yourself and a growing family? An unemployed thirty-six-year-old black man quit his suburban job because of the transportation problem. “I was spending more money getting to work than I earned working.”29

The Black Box

Black ex-offenders are the most severely disadvantaged applicants in the modern job market. While all job applicants—regardless of race—are harmed by a criminal record, the harm is not equally felt. Not only are African Americans far more likely to be labeled criminals, they are also more strongly affected by the stigma of a criminal record. Black men convicted of felonies are the least likely to receive job offers of any demographic group, and suburban employers are the most unwilling to hire them.30

Sociologist Devah Pager explains that those sent to prison “are institutionally branded as a particular class of individuals” with major implications for their place and status in society.31 The “negative credential” associated with a criminal record represents a unique mechanism of state-sponsored stratification. As Pager puts it, “it is the state that certifies particular individuals in ways that qualify them for discrimination or social exclusion.” The “official status” of this negative credential differentiates it from other sources of social stigma, offering legitimacy to its use as a basis for discrimination. Four decades ago, employers were free to discriminate explicitly on the basis of race; today employers feel free to discriminate against those who bear the prison label—i.e., those labeled criminals by the state. The result is a system of stratification based on the “official certification of individual character and competence”—a form of branding by the government.32

Given the incredibly high level of discrimination suffered by black men in the job market and the structural barriers to employment in the new economy, it should come as no surprise that a huge percentage of African American men are unemployed. Nearly one-third of young black men in the United States today are out of work.33 The jobless rate for young black male dropouts, including those incarcerated, is a staggering 65 percent.34

In an effort to address the rampant joblessness among black men labeled criminals, a growing number of advocates in recent years have launched Ban the Box campaigns. These campaigns have been successful in cities like San Francisco, where All of Us or None, a nonprofit grassroots organization dedicated to eliminating discrimination against ex-offenders, persuaded the San Francisco Board of Supervisors to approve a resolution designed to eliminate hiring discrimination against people with criminal records. San Francisco’s new policy (which took effect in June 2006) seeks to prevent discrimination on the basis of a criminal record by removing the criminal-history box from the initial application. An individual’s past convictions will still be considered, but not until later in the hiring process, when the applicant has been identified as a serious candidate for the position. The only exception is for those jobs for which state or local laws expressly bar people with certain specific convictions from employment. These applicants will still be required to submit conviction-history information at the beginning of the hiring process. However, unlike a similar ordinance adopted in Boston, San Francisco’s policy applies only to public employment, not to private vendors that do business with the city or county of San Francisco.

While these grassroots initiatives and policy proposals are major achievements, they raise questions about how best to address the complex and interlocking forms of discrimination experienced by black ex-offenders. Some scholars believe, based on the available data, that black males may suffer more discrimination—not less—when specific criminal history information is not available.35 Because the association of race and criminality is so pervasive, employers may use less accurate and discriminatory methods to screen out those perceived to be likely criminals. Popular but misguided proxies for criminality—such as race, receipt of public assistance, low educational attainment, and gaps in work history—could be used by employers when no box is available on the application form to identify criminals. This concern is supported by ethnographic work suggesting that employers have fears of violence by black men relative to other groups of applicants and act on those fears when making hiring decisions. Without disconfirming information in the job application itself, employers may (consciously or unconsciously) treat all black men as though they have a criminal record, effectively putting all (or most) of them in the same position as black ex-offenders. This research suggests that banning the box is not enough. We must also get rid of the mind-set that puts black men “in the box.”

Debtor’s Prison

The lucky few who land a decent job—one that pays a living wage and is in reasonable proximity to their residence—often discover that the system is structured in such a way that they still cannot survive in the mainstream, legal economy. Upon release from prison, ex-offenders are typically saddled with large debts—financial shackles that hobble them as they struggle to build a new life. In this system of control, like the one that prevailed during Jim Crow, one’s “debt to society” often reflects the cost of imprisonment.

Throughout the United States, newly released prisoners are required to make payments to a host of agencies, including probation departments, courts, and child-support enforcement offices. In some jurisdictions, ex-offenders are billed for drug testing and even for the drug treatment they are supposed to receive as a condition of parole. These fees, costs, and fines are generally quite new—created by law within the past twenty years—and are associated with a wide range of offenses. Every state has its own rules and regulations governing their imposition.

Examples of preconviction service fees imposed throughout the United States today include jail book-in fees levied at the time of arrest, jail per diems assessed to cover the cost of pretrial detention, public defender application fees charged when someone applies for court-appointed counsel, and the bail investigation fee imposed when the court determines the likelihood of the accused appearing at trial. Postconviction fees include pre-sentence report fees, public defender recoupment fees, and fees levied on convicted persons placed in a residential or work-release program. Upon release, even more fees may attach, including parole or probation service fees. Such fees are typically charged on a monthly basis during the period of supervision. 36 In Ohio, for example, a court can order probationers to pay a $50 monthly supervision fee as a condition of probation. Failure to pay may warrant additional community control sanctions or a modification in the offender’s sentence.37

Two-thirds of people detained in jails report annual incomes under $12,000 prior to arrest. Predictably, most ex-offenders find themselves unable to pay the many fees, costs, and fines associated with their imprisonment, as well as their child-support debts (which continue to accumulate while a person is incarcerated). As a result, many ex-offenders have their paychecks garnished. Federal law provides that a child-support enforcement officer can garnish up to 65 percent of an individual’s wages for child support. On top of that, probation officers in most states can require that an individual dedicate 35 percent of his or her income toward the payment of fines, fees, surcharges, and restitution charged by numerous agencies.38 Accordingly, a former inmate living at or below the poverty level can be charged by four or five departments at once and can be required to surrender 100 percent of his or her earnings. As a New York Times editorial soberly observed, “People caught in this impossible predicament are less likely to seek regular employment, making them even more susceptible to criminal relapse.”39

Whether or not ex-offenders make the rational choice to participate in the illegal economy (rather than have up to 100 percent of their wages garnisheed), they may still go back to prison for failure to meet the financial portion of their probation supervision requirements. One study of probation revocations found that 12 percent were due at least in part to a failure of probationers to pay their debts. Some ex-offenders are thrown back in prison simply because they have been unable—with no place to live, and no decent job—to pay back thousands of dollars of prison-related fees, fines, and child support.

Some offenders, like Ora Lee Hurley, find themselves trapped by fees and fines in prison and find it nearly impossible to get out. Hurley was a prisoner held at the Gateway Diversion Center in Atlanta in 2006. She was imprisoned because she owed a $705 fine. As part of the diversion program, Hurley was permitted to work during the day and return to the center at night. “Five days a week she work[ed] fulltime at a restaurant earning $6.50 an hour and, after taxes, net about $700 a month.”40 Room and board at the diversion center was about $600, and her monthly transportation cost $52. Miscellaneous other expenses, including clothes, shoes, and personal items such as toothpaste, quickly exhausted what was left. Hurley’s attorney decried the trap she was in: “This is a situation where if this woman was able to write a check for the amount of the fine, she would be out of there. And because she can’t, she’s still in custody. It’s as simple as that.”41 Although she worked a full-time job while in custody, most of her income went to repay the diversion program, not the underlying fine that put her in custody in the first place.

This harsh reality harks back to the days after the Civil War, when former slaves and their descendents were arrested for minor violations, slapped with heavy fines, and then imprisoned until they could pay their debts. The only means to pay off their debts was through labor on plantations and farms—known as convict leasing—or in prisons that had been converted to work farms. Paid next to nothing, convicts were effectively enslaved in perpetuity, as they were unable to earn enough to pay off their debts.

Today, many inmates work in prison, typically earning far less than the minimum wage—often less than $3 per hour, sometimes as little as 25 cents. Their accounts are then “charged” for various expenses related to their incarceration, making it impossible for them to save the money that otherwise would allow them to pay off their debts or help them make a successful transition when released from prison. Prisoners are typically released with only the clothes on their backs and a pittance in gate money. Sometimes the money is barely enough to cover the cost of a bus ticket back home.

Let Them Eat Cake

So here you are—a newly released prisoner—homeless, unemployed, and carrying a mountain of debt. How do you feed yourself? Care for your children? There is no clear answer to that question, but one thing is for sure: do not count on the government for any help. Not only will you be denied housing, but you may well be denied food.

Welfare reform legislation signed by President Bill Clinton in 1996 ended individual entitlements to welfare and provided states with block grants. The Temporary Assistance for Needy Family Program (TANF) imposes a five-year lifetime limit on benefits and requires welfare recipients, including those who have young children and lack child care, to work in order to receive benefits. In the abstract, a five-year limit may sound reasonable. But consider this: When one is labeled a criminal, forced to “check the box” on applications for employment and housing, and burdened by thousands of dollars in debt, is it possible that one will live on the brink of severe poverty for more than five years and thus require food stamps for oneself and one’s family? Until 1996, there was a basic understanding that poverty-stricken mothers raising children should be afforded some minimal level of assistance with food and shelter.

The five-year limit on benefits, however, is not the law’s worst feature. The law also requires that states permanently bar individuals with drug-related felony convictions from receiving federally funded public assistance. No exceptions are made to the felony drug ban. Accordingly, pregnant women, women raising young children, people in drug treatment or recovery, and people suffering from HIV/AIDS are ineligible for food assistance for the rest of their lives—simply because they were once caught with drugs.

The Silent Minority

If shackling former prisoners with a lifetime of debt and authorizing discrimination against them in employment, housing, education, and public benefits is not enough to send the message that they are not wanted and not even considered full citizens, then stripping voting rights from those labeled criminals surely gets the point across.

Forty-eight states and the District of Columbia prohibit inmates from voting while incarcerated for a felony offense. Only two states—Maine and Vermont—permit inmates to vote. The vast majority of states continue to withhold the right to vote when prisoners are released on parole. Even after the term of punishment expires, some states deny the right to vote for a period ranging from a number of years to the rest of one’s life.42

This is far from the norm in other countries—like Germany, for instance, which allows (and even encourages) prisoners to vote. In fact, about half of European countries allow all incarcerated people to vote, while others disqualify only a small number of prisoners from the polls.43Prisoners vote either in their correctional facilities or by some version of absentee ballot in their town of previous residence. Almost all of the countries that place some restrictions on voting in prison are in Eastern Europe, part of the former Communist bloc.44

No other country in the world disenfranchises people who are released from prison in a manner even remotely resembling the United States. In fact, the United Nations Human Rights Committee has charged that U.S. disenfranchisement policies are discriminatory and violate international law. In those few European countries that permit limited postprison disqualification, the sanction is very narrowly tailored and the number of people disenfranchised is probably in the dozens or hundreds.45 In the United States, by contrast, voting disqualification upon release from prison is automatic, with no legitimate purpose, and affects millions.

Even those former prisoners who are technically eligible to vote frequently remain disenfranchised for life. Every state has developed its own process for restoring voting rights to ex-offenders. Typically the restoration process is a bureaucratic maze that requires the payment of fines or court costs. The process is so cumbersome, confusing, and onerous that many ex-offenders who are theoretically eligible to vote never manage to get their voting rights back.46 Throughout much of the United States, ex-offenders are expected to pay fines and court costs, and submit paperwork to multiple agencies in an effort to win back a right that should never have been taken away in a democracy. These bureaucratic minefields are the modern-day equivalent of poll taxes and literacy tests—“colorblind” rules designed to make voting a practical impossibility for a group defined largely by race.

The message communicated by felon disenfranchisement laws, policies, and bureaucratic procedures is not lost on those, such as Clinton Drake, who are effectively barred from voting for life.47 Drake, a fifty-five-year-old African American man in Montgomery, Alabama, was arrested in 1988 for possession of marijuana. Five years later, he was arrested again, this time for having about $10 worth of the drug on him. Facing between ten and twenty years in prison as a repeat offender, Drake, a Vietnam veteran and, at the time, a cook on a local air force base, took his public defender’s advice and accepted a plea bargain. Under the plea agreement, he would “only” have to spend five years behind bars. Five years for five joints.

Once released, Drake found he was forbidden by law from voting until he paid his $900 in court costs—an impossible task, given that he was unemployed and the low-wage jobs he might conceivably find would never allow him to accumulate hundreds of dollars in savings. For all practical purposes, he would never be able to vote again. Shortly before the 2004 presidential election, he said in despair:

I put my life on the line for this country. To me, not voting is not right; it lead to a lot of frustration, a lot of anger. My son’s in Iraq. In the army just like I was. My oldest son, he fought in the first Persian Gulf conflict. He was in the Marines. This is my baby son over there right now. But I’m not able to vote. They say I owe $900 in fines. To me, that’s a poll tax. You’ve got to pay to vote. It’s “restitution,” they say. I came off parole on October 13, 1999, but I’m still not allowed to vote. Last time I voted was in ’88. Bush versus Dukakis. Bush won. I voted for Dukakis. If it was up to me, I’d vote his son out this time too. I know a lot of friends got the same cases like I got, not able to vote. A lot of guys doing the same things like I was doing. Just marijuana. They treat marijuana in Alabama like you committed treason or something. I was on the 1965 voting rights march from Selma. I was fifteen years old. At eighteen, I was in Vietnam fighting for my country. And now? Unemployed and they won’t allow me to vote.48

Drake’s vote, along with the votes of millions of other people labeled felons, might have made a real difference in 2004. There is no doubt their votes would have changed things in 2000. Following the election, it was widely reported that, had the 600,000 former felons who had completed their sentence in Florida been allowed to vote, Al Gore would have been elected president of the United States rather than George W. Bush.49

Four years later, voter registration workers in the South encountered scores of ex-offenders who were reluctant to register to vote, even if they were technically eligible, because they were scared to have any contact with governmental authorities. Many on welfare were worried that any little thing they did to bring attention to themselves might put their food stamps at risk. Others had been told by parole and probation officers that they could not vote, and although it was not true, they believed it, and the news spread like wildfire. “How long you think it take if someone tells you you can’t vote before it spreads?” asked one ex-offender. “It’s been years and years people telling you you can’t vote. You live in a slum, you’re not counted.”50

Even those who knew they were eligible to register worried that registering to vote would somehow attract attention to them—perhaps land them back in jail. While this might strike some as paranoia, many Southern blacks have vivid memories of the harsh consequences that befell their parents and grandparents who attempted to vote in defiance of poll taxes, literacy tests, and other devices adopted to suppress the black vote. Many were terrorized by the Klan. Today, ex-offenders live in constant fear of a different form of racial repression—racial profiling, police brutality, and revocation of parole. One investigative journalist described the situation this way: “Overwhelmingly, black people [in Mississippi] are scared of any form of contact with authorities they saw as looking for excuses to reincarcerate them. In neighborhood after neighborhood, the grandchildren of the civil rights pioneers from the 1950s were as scared to vote, because of prisons and the threat of prisons, as their grandparents were half a century ago because of the threat of the lynch mob.”51 Nshombi Lambright, of the Jackson ACLU, concurs. “People aren’t even trying to get their vote back,” she said. “It’s hard just getting them to attempt to register. They’re terrorized. They’re so scared of going back to jail that they won’t even try it.”52

Research indicates that a large number of close elections would have come out differently if felons had been allowed to vote, including at least seven senatorial races between 1980 and 2000.53 The impact on those major elections undoubtedly would be greater if all those deterred or prevented from voting were taken into account. But as ex-offenders will hasten to emphasize, it is not just the “big” elections that matter. One ex-offender put it this way: “I have no right to vote on the school referendums that ... will affect my children. I have no right to vote on how my taxes is going to be spent or used, which I have to pay whether I’m a felon or not, you know? So basically I’ve lost all voice or control over my government.... I get mad because I can’t say anything because I don’t have a voice.”54

Those who do have their voting rights restored often describe a feeling of validation, even pride. “I got a voice now,” said Willa Womack, a forty-four-year-old African American woman who had been incarcerated on drug charges. “I can decide now who will be my governor, who will be my president. I have a vote now. I feel like somebody. It’s a feeling of relief from where I came from—that I’m actually somebody.”55

The Pariahs

For Americans who are not caught up in this system of control, it can be difficult to imagine what life would be like if discrimination against you were perfectly legal—if you were not allowed to participate in the political system and if you were not even eligible for food stamps or welfare and could be denied housing assistance. Yet as bad as these forms of discrimination are, many ex-offenders will tell you that the formal mechanisms of exclusion are not the worst of it. The shame and stigma that follows you for the rest of your life—that is the worst. It is not just the job denial but the look that flashes across the face of a potential employer when he notices that “the box” has been checked—the way he suddenly refuses to look you in the eye. It is not merely the denial of the housing application but the shame of being a grown man who has to beg his grandmother for a place to sleep at night. It is not simply the denial of the right to vote but the shame one feels when a co-worker innocently asks, “Who you gonna vote for on Tuesday?”

One need not be formally convicted in a court of law to be subject to this shame and stigma. As long as you “look like” or “seem like” a criminal, you are treated with the same suspicion and contempt, not just by police, security guards, or hall monitors at your school, but also by the woman who crosses the street to avoid you and by the store employees who follow you through the aisles, eager to catch you in the act of being the “criminalblackman”—the archetypal figure who justifies the New Jim Crow.56

Practically from cradle to grave, black males in urban ghettos are treated like current or future criminals. One may learn to cope with the stigma of criminality, but like the stigma of race, the prison label is not something that a black man in the ghetto can ever fully escape. For those newly released from prison, the pain is particularly acute. As Dorsey Nunn, an ex-offender and cofounder of All of Us or None, once put it, “The biggest hurdle you gotta get over when you walk out those prison gates is shame—that shame, that stigma, that label, that thing you wear around your neck saying ‘I’m a criminal.’ It’s like a yoke around your neck, and it’ll drag you down, even kill you if you let it.” Many ex-offenders experience an existential angst associated with their permanent social exclusion. Henry, a young African American convicted of a felony, explains, “[It’s like] you broke the law, you bad. You broke the law, bang—you’re not part of us anymore.”57 That sentiment is shared by a woman, currently incarcerated, who described the experience this way:

When I leave here it will be very difficult for me in the sense that I’m a felon. That I will always be a felon ... for me to leave here, it will affect my job, it will affect my education ... custody [of my children], it can affect child support, it can affect everywhere—family, friends, housing.... People that are convicted of drug crimes can’t even get housing anymore.... Yes, I did my prison time. How long are you going to punish me as a result of it? And not only on paper, I’m only on paper for ten months when I leave here, that’s all the parole I have. But, that parole isn’t going to be anything. It’s the housing, it’s the credit reestablishing.... I mean even to go into the school, to work with my child’s class—and I’m not a sex offender—but all I need is one parent who says, “Isn’t she a felon? I don’t want her with my child.”58

The permanence of one’s social exile is often the hardest to swallow. For many it seems inconceivable that, for a minor offense, you can be subjected to discrimination, scorn, and exclusion for the rest of your life. Human Rights Watch, in its report documenting the experiences of America’s undercaste, tells the story of a fifty-seven-year-old African American woman, denied rental housing by a federally funded landlord due to a minor conviction she did not even know was on her record. After being refused reconsideration, she asked her caseworker in pained exasperation, “Am I going to be a criminal for the rest of my life?”59

When someone is convicted of a crime today, their “debt to society” is never paid. The “cruel hand” that Frederick Douglass spoke of more than 150 years ago has appeared once again. In this new system of control, like the last, many black men “hold up [their] heads, if at all, against the withering influence of a nation’s scorn and contempt.” Willie Johnson, a forty-three-year-old African American man recently released from prison in Ohio, explained it this way:

My felony conviction has been like a mental punishment, because of all the obstacles.... Every time I go to put in a [job] application—I have had three companies hire me and tell me to come to work the next day. But then the day before they will call and tell me don’t come in—because you have a felony. And that is what is devastating because you think you are about to go to work and they call you and say because of your felony we can’t hire [you]. I have run into this at least a dozen times. Two times I got very depressed and sad because I couldn’t take care of myself as a man. It was like I wanted to give up—because in society nobody wants to give us a helping hand. Right now I am considered homeless. I have never been homeless until I left the penitentiary, and now I know what it feels to be homeless. If it was not for my family I would be in the streets sleeping in the cold.... We [black men] have three strikes against us: 1) because we are black, and 2) because we are a black male, and the final strike is a felony. These are the greatest three strikes that a black man has against him in this country. I have friends who don’t have a felony—and have a hard time getting a job. But if a black man can’t find a job to take care of himself—he is ashamed that he can’t take care of his children.60

Not surprisingly, for many black men, the hurt and depression gives way to anger. A black minister in Waterloo, Mississippi, explained his outrage at the fate that has befallen African Americans in the post-civil rights era. “It’s a hustle,” he said angrily. “‘Felony’ is the new N-word. They don’t have to call you a nigger anymore. They just say you’re a felon. In every ghetto you see alarming numbers of young men with felony convictions. Once you have that felony stamp, your hope for employment, for any kind of integration into society, it begins to fade out. Today’s lynching is a felony charge. Today’s lynching is incarceration. Today’s lynch mobs are professionals. They have a badge; they have a law degree. A felony is a modern way of saying, ‘I’m going to hang you up and burn you.’ Once you get that F, you’re on fire.”61

Remarkably, it is not uncommon today to hear media pundits, politicians, social critics, and celebrities—most notably Bill Cosby—complain that the biggest problem black men have today is that they “have no shame.” Many worry that prison time has become a badge of honor in some communities—“a rite of passage” is the term most often used in the press. Others claim that inner-city residents no longer share the same value system as mainstream society, and therefore are not stigmatized by criminality. Yet as Donald Braman, author of Doing Time on the Outside, states, “One can only assume that most participants in these discussion have had little direct contact with the families and communities they are discussing.”62

Over a four-year period, Braman conducted a major ethnographic study of families affected by mass incarceration in Washington, D.C., a city where three out of every four young black men can expect to spend some time behind bars.63 He found that, contrary to popular belief, the young men labeled criminals and their families are profoundly hurt and stigmatized by their status: “They are not shameless; they feel the stigma that accompanies not only incarceration but all the other stereotypes that accompany it—fatherlessness, poverty, and often, despite every intent to make it otherwise, diminished love.” The results of Braman’s study have been largely corroborated by similar studies elsewhere in the United States.64

These studies indicate that the biggest problem the black community may face today is not “shamelessness” but rather the severe isolation, distrust, and alienation created by mass incarceration. During Jim Crow, blacks were severely stigmatized and segregated on the basis of race, but in their own communities they could find support, solidarity, acceptance—love. Today, when those labeled criminals return to their communities, they are often met with scorn and contempt, not just by employers, welfare workers, and housing officials, but also by their own neighbors, teachers, and even members of their own families. This is so, even when they have been imprisoned for minor offenses, such as possession and sale of a small amount of drugs. Young black males in their teens are often told “you’ll amount to nothing” or “you’ll find yourself back in jail, just like your father”—a not-so-subtle suggestion that a shameful defect lies deep within them, an inherited trait perhaps—part of their genetic makeup. “You are a criminal, nothing but a criminal. You are a no good criminal.”65

The anger and frustration directed at young black men returning home from prison is understandable, given that they are returning to communities that are hurt by joblessness and crime. These communities desperately need their young men to be holding down jobs and supporting their families, rather than wasting away in prison cells. While there is widespread recognition that the War on Drugs is racist and that politicians have refused to invest in jobs or schools in their communities, parents of offenders and ex-offenders still feel intense shame—shame that their children have turned to crime despite the lack of obvious alternatives. One mother of an incarcerated teen, Constance, described her angst this way: “Regardless of what you feel like you’ve done for your kid, it still comes back on you, and you feel like, ‘Well, maybe I did something wrong. Maybe I messed up. You know, maybe if I had a did it this way, then it wouldn’t a happened that way.’” After her son’s arrest, she could not bring herself to tell friends and relatives and kept the family’s suffering private. Constance is not alone.

Eerie Silence

David Braman’s ethnographic research shows that mass incarceration, far from reducing the stigma associated with criminality, actually creates a deep silence in communities of color, one rooted in shame. Imprisonment is considered so shameful that many people avoid talking about it, even within their own families. Some, like Constance, are silent because they blame themselves for their children’s fate and believe that others blame them as well. Others are silent because they believe hiding the truth will protect friends and family members—e.g., “I don’t know what [his incarceration] would do to his aunt. She just thinks so highly of him.” Others claim that a loved one’s criminality is a private, family matter: “Somebody’s business is nobody’s business.”66

Remarkably, even in communities devastated by mass incarceration, many people struggling to the cope with the stigma of imprisonment have no idea that their neighbors are struggling with the same grief, shame, and isolation. Braman reported that “when I asked participants [in the study] if they knew of other people in the neighborhood, many did know of one or two out of the dozens of households on the block that had members incarcerated but did not feel comfortable talking with others.”67 This type of phenomenon has been described in the psychological literature as pluralistic ignorance, in which people misjudge the norm. One example is found in studies of college freshman who overestimate the drinking among other freshman.68 When it comes to families of prisoners, however, their underestimation of the extent of incarceration in their communities exacerbates their sense of isolation by making the imprisonment of their family members seem more abnormal than it is.

Even in church, a place where many people seek solace in times of grief and sorrow, families of prisoners often keep secret the imprisonment of their children or relatives. As one woman responded when asked if she could turn to church members for support, “Church? I wouldn’t dare tell anyone at church.”69 Far from being a place of comfort or refuge, churches can be a place where judgment, shame, and contempt are felt most acutely. Services in black churches frequently contain a strong mixture of concern for the less fortunate and a call to personal responsibility. As Cathy Cohen has observed, ministers and members of black congregations have helped to develop what she calls the “indigenous constructed image of ‘good, black Christian folk.’”70 Black churches, in this cultural narrative, are places where the “good” black people in the community can be found. To the extent that the imprisonment of one’s son or relative (or one’s own imprisonment) is experienced as a personal failure—a failure of personal responsibility—church can be a source of fresh pain rather than comfort.

Those who have had positive experiences of acceptance and sympathy after disclosing the status of a loved one (or their own status) report they are better able to cope. Notably, however, even after such positive experiences, most family members remain committed to maintaining tight control over who knows and who does not know about the status of their loved one. According to Braman, not one of the family members in his study “had ‘come out’ completely to their extended families at church and at work.”71

Passing (Redux)

Lying about incarcerated family members is another common coping strategy—a form of passing. Whereas light-skinned blacks during the Jim Crow era sometimes cut off relations with friends and family in an effort to “pass” as white and enjoy the upward mobility and privilege associated with whiteness, today many family members of prisoners lie and try to hide the status of their relatives in an effort to mitigate the stigma of criminality. This is especially the case at work—employment settings where family members interact with people they believe could not possibly understand what they are going through.

One woman, Ruth, whose younger brother is incarcerated, says she would never discuss her brother with her co-workers or supervisor, though they have long shared information about their personal lives. “You know, I talk to [my supervisor] about stuff, but not this. This was too much, and it definitely made, well it was just harder to talk to him. He wants to know how my brother is. I just can’t tell it to him. What does he know about prison?”72 When asked to explain why her white co-workers and supervisors would have trouble understanding her brother’s incarceration, Ruth explained that it was not just incarceration but “everything”—everything related to race. As an example, she mentioned nights when she works late: “I tell my boss all the time, I say, ‘If you want me to take a taxi you go down there and flag one for me. I’m not going out there and stand twenty minutes for a cab when they’ll run over me to get to you.’ ... He’s white and, see, he don’t know the difference because he’s from Seattle, Washington. He looks at me real strange, like, ‘What are you talking about?’”73

Many ex-offenders and families of prisoners are desperately attempting to be perceived as part of the modern upwardly mobile class, even if their income does not place them in it. Ex-offenders lie (by refusing to check the box on employment applications), and family members lie through omission or obfuscation because they are painfully aware of the historically intransigent stereotypes of criminal, dysfunctional families that pervade not only public discussions of inner cities but of the black community in general. This awareness can lead beyond shame to a place of self-hate.

One mother of an incarcerated teenager described the self-hate she perceives in the black community this way:

All your life you been taught that you’re not a worthy person, or something is wrong with you. So you don’t have no respect for yourself. See, people of color have—not all of them, but a lot of them—have poor self-esteem, because we’ve been branded. We hate ourselves, you know. We have been programmed that it’s something that’s wrong with us. We hate ourselves.74

This self-hate, she explained, does not affect just the young boys who find themselves getting in trouble and fulfilling the negative expectations of those in the community and beyond. Self-hate is also part of the reason people in her neighborhood do not speak to each other about the impact of incarceration on their families and their lives. In her nearly all-black neighborhood, she worries about what the neighbors would think about her if she revealed that her son had been labeled a criminal: “It’s hard, because, like I say ... we’ve been labeled all our lives that we are the bad people.”75

The silence this stigma engenders among family members, neighbors, friends, relatives, co-workers, and strangers is perhaps the most painful—yet least acknowledged—aspect of the new system of control. The historical anthropologist Gerald Sider once wrote, “We can have no significant understanding of any culture unless we also know the silences that were institutionally created and guaranteed along with it.”76 Nowhere is that observation more relevant in American society today than in an analysis of the culture of mass incarceration.

Descriptions of the silence that hovers over mass incarceration are rare because people—whether they are social scientists, judges, politicians, or reporters—are usually more interested in speech, acts, and events than in the negative field of silence and estrangement that lurks beneath the surface. But, as Braman rightly notes, those who live in the shadows of this silence are devalued as human beings:

There is a repression of self experienced by these families in their silence. The retreat of a mother or wife from friendships in church and at work, the words not spoken between friends, the enduring silence of children who guard what for them is profound and powerful information—all are telling indicators of the social effects of incarceration. As relationships between family and friends become strained or false, not only are people’s understandings of one another diminished, but, because people are social, they themselves are diminished as well.77

The harm done by this social silence is more than interpersonal. The silence—driven by stigma and fear of shame—results in a repression of public thought, a collective denial of lived experience. As Braman puts it, “By forcing out of public view the struggles that these families face in the most simple and fundamental acts—living together and caring for one another—this broader social silence makes it seem as though [ghetto families] simply are ‘that way’: broken, valueless, irreparable.”78 It also makes community healing and collective political action next to impossible.

Gangsta Love

For some, the notion that black communities are severely stigmatized and shamed by criminality is counterintuitive: if incarceration in many urban areas is the statistical norm, why isn’t it socially normative as well? It is true that imprisonment has become “normal” in ghetto communities. In major cities across the United States, the majority of young black men are under the control of the criminal justice system or saddled with criminal records. But just because the prison label has become normal does not mean that it is generally viewed as acceptable. Poor people of color, like other Americans—indeed like nearly everyone around the world—want safe streets, peaceful communities, healthy families, good jobs, and meaningful opportunities to contribute to society. The notion that ghetto families do not, in fact, want those things, and instead are perfectly content to live in crime-ridden communities, feeling no shame or regret about the fate of their young men is, quite simply, racist. It is impossible to imagine that we would believe such a thing about whites.

The predictable response is: What about gangsta rap and the culture of violence that has been embraced by so many black youth? Is there not some truth to the notion that black culture has devolved in recent years, as reflected in youth standing on the street corners with pants sagging below their rears and rappers boasting about beating their “hos” and going to jail? Is there not some reason to wonder whether the black community, to some extent, has lost its moral compass?

The easy answer is to say yes and wag a finger at those who are behaving badly. That is the road most traveled, and it has not made a bit of difference. The media fawn over Bill Cosby and other figures when they give stern lectures to black audiences about black men failing to be good fathers and failing to lead respectable lives. They act as though this is a message black audiences have not heard many times before from their ministers, from their family members, and from politicians who talk about the need for more “personal responsibility.” Many seem genuinely surprised that blacks in the audience applaud these messages; for them, it is apparently news that black people think men should be good fathers and help to support their families.

The more difficult answer—the more courageous one—is to say yes, yes we should be concerned about the behavior of men trapped in ghetto communities, but the deep failure of morality is our own. Economist Glenn Loury once posed the question: “are we willing to cast ourselves as a society that creates crimogenic conditions for some of its members, and then acts-out rituals of punishment against them as if engaged in some awful form of human sacrifice?” A similar question can be posed with respect to shaming those trapped in ghettos: are we willing to demonize a population, declare a war against them, and then stand back and heap shame and contempt upon them for failing to behave like model citizens while under attack?

In this regard, it is helpful to step back and put the behavior of young black men who appear to embrace “gangsta culture” in the proper perspective. There is absolutely nothing abnormal or surprising about a severely stigmatized group embracing their stigma. Psychologists have long observed that when people feel hopelessly stigmatized, a powerful coping strategy—often the only apparent route to self-esteem—is embracing one’s stigmatized identity. Hence, “black is beautiful” and “gay pride”—slogans and anthems of political movements aimed at ending not only legal discrimination, but the stigma that justified it. Indeed, the act of embracing one’s stigma is never merely a psychological maneuver; it is a political act—an act of resistance and defiance in a society that seeks to demean a group based on an inalterable trait. As a gay activist once put it, “Only by fully embracing the stigma itself can one neutralize the sting and make it laughable.”79

For those black youth who are constantly followed by the police and shamed by teachers, relatives, and strangers, embracing the stigma of criminality is an act of rebellion—an attempt to carve out a positive identity in a society that offers them little more than scorn, contempt, and constant surveillance. Ronny, a sixteen-year-old African American on probation for a drug-related offense, explains it this way:

My grandma keeps asking me about when I’m gonna get arrested again. She thinks just ’cause I went in before, I will go in again.... At my school my teachers talk about calling the cop[s] again to take me away.... [The] cop keeps checking up on me. He’s always at the park making sure I don’t get into trouble again.... My P.O. [probation officer] is always knocking on my door talking shit to me.... Even at the BYA [the local youth development organization] the staff treat me like I’m a fuck up.... Shit don’t change. It doesn’t matter where I go, I’m seen as a criminal. I just say, if you are going to treat me as a criminal then I’m gonna treat you like I am one, you feel me? I’m gonna make you shake so that you can say that there is a reason for calling me a criminal.... I grew up knowing that I had to show these fools [adults who criminalize youth] that I wasn’t going to take their shit. I started to act like a thug even if I wasn’t one.... Part of it was me trying to be hard, the other part was them treating me like a criminal.80

The problem, of course, is that embracing criminality—while a natural response to the stigma—is inherently self-defeating and destructive. While “black is beautiful” is a powerful antidote to the logic of Jim Crow, and “gay pride” is a liberating motto for those challenging homophobia, the natural corollary for young men trapped in the ghetto in the era of mass incarceration is something akin to “gangsta love.” While race and sexual orientation are perfectly appropriate aspects of one’s identity to embrace, criminality for its own sake most certainly is not. The War on Drugs has greatly exacerbated the problems associated with drug abuse, rather than solved them, but the fact remains that the violence associated with the illegal drug trade is nothing to be celebrated. Black crime cripples the black community and does no favors to the individual offender.

So herein lies the paradox and predicament of young black men labeled criminals. A war has been declared on them, and they have been rounded up for engaging in precisely the same crimes that go largely ignored in middle-and upper-class white communities—possession and sale of illegal drugs. For those residing in ghetto communities, employment is scarce—often nonexistent. Schools located in ghetto communities more closely resemble prisons than places of learning, creativity, or moral development. And because the drug war has been raging for decades now, the parents of children coming of age today were targets of the drug war as well. As a result, many fathers are in prison, and those who are “free” bear the prison label. They are often unable to provide for, or meaningfully contribute to, a family. Any wonder, then, that many youth embrace their stigmatized identity as a means of survival in this new caste system? Should we be shocked when they turn to gangs or fellow inmates for support when no viable family support structure exists? After all, in many respects, they are simply doing what black people did during the Jim Crow era—they are turning to each other for support and solace in a society that despises them.

Yet when these young people do what all severely stigmatized groups do—try to cope by turning to each other and embracing their stigma in a desperate effort to regain some measure of self esteem—we, as a society, heap more shame and contempt upon them. We tell them their friends are “no good,” that they will “amount to nothing,” that they are “wasting their lives,” and that “they’re nothing but criminals.” We condemn their baggy pants (a fashion trend that mimics prison-issue pants) and the music that glorifies a life many feel they cannot avoid. When we are done shaming them, we throw up our hands and then turn our backs as they are carted off to jail.

The Minstrel Show

None of the foregoing should be interpreted as an excuse for the violence, decadence, or misogyny that pervades what has come to be known as gangsta culture. The images and messages are extremely damaging. On an average night, one need engage in only a few minutes of channel surfing during prime-time hours to stumble across images of gangsta culture on television. The images are so familiar no description is necessary here. Often these images emanate from BET or black-themed reality shows and thus are considered “authentic” expressions of black attitudes, culture, and mores.

Again, though, it is useful to put the commodification of gangsta culture in proper perspective. The worst of gangsta rap and other forms of blaxploitation (such as VH1’s Flavor of Love) is best understood as a modern-day minstrel show, only this time televised around the clock for a worldwide audience. It is a for-profit display of the worst racial stereotypes and images associated with the era of mass incarceration—an era in which black people are criminalized and portrayed as out-of-control, shameless, violent, oversexed, and generally undeserving.

Like the minstrel shows of the slavery and Jim Crow eras, today’s displays are generally designed for white audiences. The majority of consumers of gangsta rap are white, suburban teenagers. VH1 had its best ratings ever for the first season of Flavor of Love—ratings driven by large white audiences. MTV has expanded its offerings of black-themed reality shows in the hopes of attracting the same crowd. The profits to be made from racial stigma are considerable, and the fact that blacks—as well as whites—treat racial oppression as a commodity for consumption is not surprising. It is a familiar form of black complicity with racialized systems of control.

Many people are unaware that, although minstrel shows were plainly designed to pander to white racism and to make whites feel comfortable with—indeed, entertained by—racial oppression, African Americans formed a large part of the black minstrels’ audience. In fact, their numbers were so great in some areas that theater owners had to relax rules segregating black patrons and restricting them to certain areas of the theater.81

Historians have long debated why blacks would attend minstrel shows when the images and content were so blatantly racist. Minstrels projected a greatly romanticized and exaggerated image of black life on plantations with cheerful, simple, grinning slaves always ready to sing, dance, and please their masters. Some have suggested that perhaps blacks felt in on the joke, laughing at the over-the-top characters from a sense of “in-group recognition.” 82 It has also been argued that perhaps they felt some connection to elements of African culture that had been suppressed and condemned for so long but were suddenly visible on stage, albeit in racist, exaggerated form.83 Undeniably, though, one major draw for black audiences was simply seeing fellow African Americans on stage. Black minstrels were largely viewed as celebrities, earning more money and achieving more fame than African Americans ever had before.84 Black minstrelsy was the first large-scale opportunity for African Americans to enter show business. To some degree, then, black minstrelsy—as degrading as it was—represented success.

It seems likely that historians will one day look back on the images of black men in gangsta rap videos with a similar curiosity. Why would these young men, who are targets of a brutal drug war declared against them, put on a show—a spectacle—that romanticizes and glorifies their criminalization? Why would these young men openly endorse and perpetuate the very stereotypes that are invoked to justify their second-class status, their exclusion from mainstream society? The answers, historians may find, are not that different from the answers to the minstrelsy puzzle.

It is important to keep in mind, though, that many hip-hop artists today do not embrace and perpetuate the worst racial stereotypes associated with mass incarceration. Artists like Common, for example, articulate a sharp critique of American politics and culture and reject the misogyny and violence preached by gangsta rappers. And while rap is often associated with “gangsta life” in the mainstream press, the origins of rap and hip-hop culture are not rooted in outlaw ideology. When rap was born, the early rap stars were not rapping about gangsta life, but “My Adidas” and good times in the ’hood in tunes like “Rapper’s Delight.” Rap music changed after the War on Drugs shifted into high gear and thousands of young, black men were suddenly swept off the streets and into prisons. Violence in urban communities flared in those communities, not simply because of the new drug—crack—but because of the massive crackdown, which radically reshaped the traditional life course for young black men. As a tidal wave of punitiveness, stigma, and despair washed over poor communities of color, those who were demonized—not only in the mainstream press but often in their own communities—did what all stigmatized groups do: they struggled to preserve a positive identity by embracing their stigma. Gangsta rap—while it may amount to little more than a minstrel show when it appears on MTV today—has its roots in the struggle for a positive identity among outcasts.

The Antidote

It is difficult to look at pictures of black people performing in minstrel shows during the Jim Crow era. It is almost beyond belief that at one time black people actually covered their faces with pitch-black paint, covered their mouths with white paint drawn in an exaggerated, clownish smile, and pranced on stage for the entertainment and delight of white audiences, who were tickled by the sight of a black man happily portraying the worst racial stereotypes that justified slavery and later Jim Crow. The images are so painful they can cause a downright visceral reaction. The damage done by the minstrel’s complicity in the Jim Crow regime was considerable. Even so, do we hate the minstrel? Do we despise him? Or do we do understand him as an unfortunate expression of the times?

Most people of any race would probably condemn the minstrel show but stop short of condemning the minstrel as a man. Pity, more than contempt, seems the likely response. Why? With the benefit of hindsight, we can see the minstrel in his social context. By shuckin’and jivin’for white audiences, he was mirroring to white audiences the shame and contempt projected onto him. He might have made a decent living that way—may even have been treated as a celebrity—but from a distance, we can see the emptiness, the pain.

When the system of mass incarceration collapses (and if history is any guide, it will), historians will undoubtedly look back and marvel that such an extraordinarily comprehensive system of racialized social control existed in the United States. How fascinating, they will likely say, that a drug war was waged almost exclusively against poor people of color—people already trapped in ghettos that lacked jobs and decent schools. They were rounded up by the millions, packed away in prisons, and when released, they were stigmatized for life, denied the right to vote, and ushered into a world of discrimination. Legally barred from employment, housing, and welfare benefits—and saddled with thousands of dollars of debt—these people were shamed and condemned for failing to hold together their families. They were chastised for succumbing to depression and anger, and blamed for landing back in prison. Historians will likely wonder how we could describe the new caste system as a system of crime control, when it is difficult to imagine a system better designed to create—rather than prevent—crime.

None of this is to suggest that those who break the law bear no responsibility for their conduct or exist merely as “products of their environment.” To deny the individual agency of those caught up in the system—their capacity to overcome seemingly impossible odds—would be to deny an essential element of their humanity. We, as human beings, are not simply organisms or animals responding to stimuli. We have a higher self, a capacity for transcendence.

Yet our ability to exercise free will and transcend the most extraordinary obstacles does not make the conditions of our life irrelevant. Most of us struggle and often fail to meet the biggest challenges of our lives. Even the smaller challenges—breaking a bad habit or sticking to a diet—often prove too difficult, even for those of us who are relatively privileged and comfortable in our daily lives.

In fact, what is most remarkable about the hundreds of thousands of people who return from prison to their communities each year is not how many fail, but how many somehow manage to survive and stay out of prison against all the odds. Considering the design of this new system of control, it is astonishing that so many people labeled criminals still manage to care for and feed their children, hold together marriages, obtain employment, and start businesses. Perhaps most heroic are those who, upon release, launch social justice organizations that challenge the discrimination ex-offenders face and provide desperately needed support for those newly released from prison. These heroes go largely unnoticed by politicians who prefer to blame those who fail, rather than praise with admiration and awe all those who somehow manage, despite seemingly insurmountable hurdles, to survive.

As a society, our decision to heap shame and contempt upon those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them.

There is another path. Rather than shaming and condemning an already deeply stigmatized group, we, collectively, can embrace them—not necessarily their behavior, but them—their humanness. As the saying goes, “You gotta hate the crime, but love the criminal.” This is not a mere platitude; it is a prescription for liberation. If we had actually learned to show love, care, compassion, and concern across racial lines during the Civil Rights Movement—rather than go colorblind—mass incarceration would not exist today.

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