Incarceration Rates and Jim Crow Analogies

James Forman, Jr. has a piece up in the forthcoming N.Y.U. Law Review attacking the analogies made between high rates of incarceration and Jim Crow. From the abstract:

But despite its contributions, the Jim Crow analogy ultimately leads to a distorted view of mass incarceration. First, the Jim Crow analogy oversimplifies the origins of mass incarceration by highlighting the role of politicians seeking to exploit racial fears while minimizing other historical factors. Second, the analogy has too little to say about black attitudes towards crime and punishment, masking the nature and extent of black support for punitive crime policy. Third, the analogy’s exclusive focus on the War on Drugs diverts our attention from violent crime — a troubling oversight given the toll that violence takes on low-income black communities and the fact that violent offenders make up a plurality of the prison population. Fourth, the Jim Crow analogy obscures the fact that mass incarceration’s impact has been almost exclusively concentrated among the most disadvantaged African-Americans. Fifth, the analogy draws our attention away from the harms that mass incarceration inflicts on other racial groups, including whites and Hispanics. Finally, the analogy diminishes our understanding of the particular harms associated with the old Jim Crow.

These are all fair points. The analogy is way overblown, makes the issue seem black-white when 21st race relations are a lot more complicated, ignores class and divisions within the African-American community. It also seriously obscures the horror of Jim Crow and exactly what that was like. At the same time, there’s no questioning that the criminal justice system reflects and exacerbates racial inequality. The problem with the analogy is that it is bad history, but it’s also not without some accuracy.