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87 N.Y.U. L. Rev. 21 (2012)
Racial Critiques of Mass Incarceration: Beyond the new Jim Crow

handle is hein.journals/nylr87 and id is 23 raw text is: ARTICLES
RACIAL CRITIQUES OF MASS
INCARCERATION: BEYOND
THE NEW JIM CROW
JAMES FORMAN, JR.*
In the last decade, a number of scholars have called the American criminal justice
system a new form of Jim Crow. These writers have effectively drawn attention to
the injustices created by a facially race-neutral system that severely ostracizes
offenders and stigmatizes young, poor black men as criminals. This Article argues
that despite these important contributions, the Jim Crow analogy leads to a dis-
torted view of mass incarceration. The analogy presents an incomplete account of
mass incarceration's historical origins, fails to consider black attitudes toward
crime and punishment, ignores violent crimes while focusing almost exclusively on
drug crimes, obscures class distinctions within the African American community,
and overlooks the effects of mass incarceration on other racial groups. Finally, the
Jim Crow analogy diminishes our collective memory of the Old Jim Crow's partic-
ular harms.
INTRODUCTION .................................................            22
I. A   BRIEF HISTORY OF THE NEW          JIM CROW ............      25
11. THE VALUE OF THE JIM CROW ANALOGY..............                    27
III. OBSCURING HISTORY: THE BIRTH OF MASS
INCARCERATION ........................................             34
IV. OBSCURING BLACK SUPPORT FOR PUNITIVE CRIME
POLICY............................................         ...... 36
V. IGNORING VIOLENCE ...................................               45
VI. OBSCURING CLASS ......................................              52
VII. OVERLOOKING RACE ...................................                58
* Copyright @ 2012 by James Forman, Clinical Professor of Law, Yale Law School. I
would like to thank the following people for their comments: Michelle Alexander, the late
Derrick Bell, Richard Banks, Rachel Barkow, Oscar Chase, David Cole, Alec Ewald,
David Garland, Marty Guggenheim, Kristin Henning, Randy Hertz, Randall Kennedy,
Greg Klass, Marc Mauer, Jean Koh Peters, Claire Priest, Constancia Romilly, Adam
Samaha, Giovanna Shay, Lofc Wacquant, and the participants at faculty workshops at
Georgetown University Law Center, NYU Law School, and Yale Law School. I would
especially like to thank Arthur Evenchik, whose comments on multiple drafts have
improved this Article immeasurably. I received invaluable research assistance from Greger
Calhan, Mike Knobler, Kristin Lang, Katie Mesner-Hage, Emma Simson, Sarah Tallman,
the staff of the Edward Bennett Williams Library at Georgetown University Law Center,
and the staff of the Lillian Goldman Law Library at Yale Law School. This Article builds
on James Forman, Jr., Harm's Way: Understanding Race and Punishment, BOSTON
REVIEW, Jan.-Feb. 2011, at 55.
21

Imaged with Permission of N.Y.U. Journal of International Law and Politics

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