Radical criminal justice reform will also require the involvement of activists, advocates, journalists, commentators, clergy, public defenders, grassroots political organizations, and radically progressive voters, since they, ultimately, decide the political fate of radically progressive elected officials. Radical reform will require all these agents of change to take on the monumental task of redefining this nation’s values and moral norms in matters of blame and punishment. And the urgent question confronting any and all truly progressive reformers is this: Through what moral, legal, and political lenses do radically progressive people committed to making deep and lasting cuts in racialized mass incarceration look at blame and punishment?
Nigga Theory expounds a radically progressive moral, legal, and political framework for DAs, Public Defenders, lawmakers, activists, and voters to help transform how we think and feel about the disproportionately Black minds, bodies, and souls we currently cage in the name of justice. At the heart of this framework is someone whom liberal critics of mass incarceration too often discount or deny: the violent offender. The widely accepted liberal narrative about racialized mass incarceration, as popularized by Michelle Alexander’s important and influential book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), argues that racist lawmakers responded to the civil rights era triumphs of Blacks over state-sanctioned racialized segregation—Old Jim Crow—by shifting to another institutional mechanism of racial oppression: the criminal justice system. According to Alexander, the federal government launched the War on Drugs, with “low-level nonviolent drug offenses” driving the explosion in US incarceration rates. “The impact of the drug war has been astounding,” Alexander writes. “In less than 30 years, the US penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.” Recognizing that “violent crime tends to provoke the most visceral and punitive response,” Alexander spells out the most forceful argument of “defenders of mass incarceration” who claim that it is not a form of racial oppression:
They point to violent crime in the African American community as a justification for the staggering number of black men who find themselves behind bars. Black men, they say, have much higher rates of violent crime; that’s why so many of them are locked up.
Her go-to response to those who defend racialized mass incarceration as centered on violent offenders, reiterated in no uncertain terms throughout the book, is that “violent crime is not responsible for mass incarceration.” Warning readers not to be “misled by those who insist that violent crime has driven the rise of this unprecedented system of racial and social control,” Alexander proclaims: “the uncomfortable reality is that arrests and convictions for drug offenses—not violent crime—have propelled mass incarceration.”11
The clear implication, of course, is that the “uncomfortable reality” of racialized mass incarceration might not be so uncomfortable if it afflicted mostly violent offenders rather than nonviolent drug offenders; a core premise of this book is that it should be an intolerably “uncomfortable reality” in relation to both violent and nonviolent offenders. This deep conventional moral distinction between violent and nonviolent offenders drives the liberal New Jim Crow narrative, centering it on the latter and repeatedly making their draconian treatment the touchstone of injustice. As recently as 2015, President Obama publicly propagated this factual cornerstone of the narrative: “Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before, and that is the real reason our prison population is so high.” It’s infinitely easier to carry a brief for nonviolent than violent offenders in the court of public opinion. Accordingly, Alexander places great rhetorical weight on the distinction, declaring in one passage that “[w]e ought never excuse violence,” while urging in another that we ought to excuse low-level nonviolent wrongdoing because “all people make mistakes,” “all of us are sinners,” “all of us are criminals,” “all of us violate the law at some point in our lives,” and “most of us break the law not once but repeatedly throughout our lives.” For instance, “most Americans violate drug laws in their lifetime,” she observes, and “[y]et there are people in the United States serving life sentences for first-time drug offenses,” she laments—lost generations of Blacks “rounded up for crimes that go ignored on the other side of town.”12
The rhetorical force of this language rests entirely on the factual assumption that we are talking about low-level, nonviolent offenses, for from the standpoint of prevailing values and moral norms it sounds preposterous to say all of us are violent criminals or all of us violate laws against robbery, rape, homicide, and assault at some point in our lives. And of course violent crimes are not ignored in privileged predominantly white communities, so it’s hard to say that violent offenders in black neighborhoods are being rounded up for, say, murders that go ignored on the other side of town. If anything, far too few murders and other violent crimes in the black community are solved, prompting a community organization like Baltimore’s Mothers of Murdered Sons and Daughters to sponsor billboards calling on the mayor to “STOP POT ARRESTS. SOLVE MURDERS INSTEAD.” But this rhetoric invites a political distinction in criminal matters between an “us” of low-level, nonviolent, eminently excusable wrongdoers and a “them” of violent ones, the ones who “jeopardize the safety and security of others” and whose violence “we ought never excuse.”13 It invites a politics of compassion for ordinary human frailty, as long as that frailty does not express itself in violence. And most importantly, it promises that deep cuts in racialized mass incarceration can be accomplished on the cheap, without radically challenging our “comfortable” moral frameworks or political identities; all that it asks for is sympathy and leniency for low-level nonviolent offenders who deep down are morally indistinguishable from the rest of us.
This is why facts matter: different factual realities demand different moral lenses and different us-them politics. Factually, the liberal New Jim Crow narrative could hardly be more wrong and misguided, rendering its underlying moral compass and politics profoundly regressive and counterproductive for anyone seeking deep and lasting cuts in racialized mass incarceration. As Pfaff points out in Locked In, “only about 16% of state prisoners are serving time on drug charges—and very few of them, perhaps only around five or six percent of that group, are both low level and nonviolent.” “At the same time,” he continues, “more than half of all people in state prisons have been convicted of a violent crime.” Because the vast majority (87%) of US inmates are held in state prisons, most people in US prisons simply are not there for low-level nonviolent drug offenses.14 The problem with telling the public that racialized mass incarceration boils down to low-level, nonviolent drug offenders (perhaps who simply need to be diverted into non-carceral programs) is that this false factual account lulls lawmakers and concerned citizens into the comfortable but counterproductive fantasy that deep cuts in the prison population can be achieved by targeting a lot of relatively sympathetic prisoners. Nevertheless, this false narrative has become an ingrained article of faith for many progressives.
The New Jim Crow deserves great credit for helping many Americans—especially but not exclusively white liberals—begin to think about racialized mass incarceration as a civil rights crisis rather than simply a “law and order” problem resulting from the bad choices of bad people. When The New Jim Crow was published in 2010, the debate over issues like affirmative action in higher education was consuming much of the time, attention, and other resources of the civil rights community, and Alexander’s book, more than any other, helped establish racialized mass incarceration as the main battlefront in US race relations, which is why the book became, in the words of one commentator, “the bible of a social movement”—truly a monumental achievement. But because of fatal flaws in its factual account, moral compass, and politics, the liberal New Jim Crow narrative now actually hurts more people locked in American prisons than it helps.
For instance, in a 2016 Vox poll, more than 2,000 registered voters overestimated how many people are in prison for nonviolent drug offenses. A total of 61% of respondents said that half of all prisoners