The New Jim Crow

Mass Incarceration in the Age of Colorblindness

Author: Michelle Alexander

“Injustice Anywhere, is a Threat to Justice Everywhere”

-Martin Luther King Jr.

“The War on Drugs is the New Jim Crow”

• “I understood the problems plaguing poor communities of color including problems associated with crime and rising incarceration rates, to be a function of poverty and lack of access to quality education—the continuing legacy of slavery and Jim Crow…never did I consider the possibility of a new racial caste.” (Alexander 3)

Myths of the Drug War• The War on Drugs was a result of the “crack boom” of the

1980s• The War on Drugs began in 1982; 2 years prior to crack boom of

the mid-80s (Alexander 5)

• “Most drug dealers are black or brown.”• “Studies show people of all colors use and sell illegal drugs at

remarkably similar rates. If there is a higher usage in studies its typically among white youth.” (Alexander 7)

– A 2000 study by the National Institute on Drug Abuse reported that white students use cocaine at 7x the rate of black students, crack-cocaine at 8x the rates, and use heroine at 7x the rate of black students. (97)

Myths of the Drug War

• The War on Drugs targets drug “kingpins” or big-time dealers. (Alexander 59)– 2005: 4/5 of drug arrests were for possession; only 1/5

were for selling (Alexander 59)• Most people in state prison for drug offenses are also

guilty of violent crimes.• The overwhelming majority have NO history of violence or

significant selling activity (93)• The Drug war is focused on “hard/dangerous drugs”– Marijuana possession accounted for 80% of the growth of

drug arrests in the 1990s (59)

Impact of Drug War

• The U.S. penal population has risen from 350,000 to 2.3 million in 30 years! (Alexander 92)

• The U.S. has the highest rate of incarceration in the world! (Alexander 6)

• “The U.S. imprisons a larger percentage of its black population than South Africa during its height of apartheid.” (Alexander 6)

• “In D.C., it’s estimated ¾ of young black men can expect to serve time in prison.” (Alexander 7)

Impact of Drug War

• Federal law enforcement agencies’ budgets increased 1000% in 1980s; while funding for drug prevention & treatment decreased 400% (Alexander 49)

• Drug offenses accounted for 2/3 of the rise in the federal inmate population and more than ½ of the rise in state prisoners between 1985 and 2000 (59)

• Since 1982, there has been an 1,100% increase in the drug related prison population.

Tactics of the Drug War

Changing the Rules of the Game

Rules of the Game

• “The system is structured to reward mass drug arrests and facilitate convictions regardless of guilt or innocence.” (60)

• “The War on Drugs has eviscerated the 4th Amendment” (60)

Terry v. Ohio: Terry Frisk

• Terry Frisk:– “So long as a police officer has “reasonable

suspicion’ that someone is engaged in criminal activity and dangerous, it is constitutionally permissible to stop, question, and frisk him or her even in the absence of probable cause.” (62)

Tactics—Consent Searches

• Today, as long as you give “consent,” the police can stop, interrogate, and search you for any reason or no reason at all…an effective tactic because hardly anyone dares to say ‘no’ (63)

• So-called consent searches have made it possible for the police to stop and search for drugs just about anybody walking down the street (65)

• Drug sniffing dogs do not constitute a “search” and therefore do not trigger 4th Amendment scrutiny (68)

Tactics—Pretext Stops

• Pretext Stop: Traffic stop motivated by a desire to hunt for drugs in the absence of any evidence of illegal drug activity (66).– Police officers using minor traffic violations as a

pretext to search for drugs…upheld by Supreme Court (67)

• OVERWHELMING MAJORITY (over 95%) of Operation Pipeline stop and searches yielded no illegal drugs (70).

Tactics: Drug Courier Profiles• The use of “Drug Courier Profiles” has also been

upheld by the Supreme Court…profiles help determine whether or not an individual will be searched… (70)

• The “Profile” includes:– “Driving an expensive car, driving a car that needs

repairs, traveling with luggage, traveling without luggage, out-of-state plates, acting too calm, acting too nervous, dressing casually, wearing expensive clothing or jewelry, paying for a ticket in cash, carrying large denominations of currency, and yes…race.” (70)

Incentiving the Drug War

Incentives to Support the Drug War

• Most state and local law enforcement were against the War on Drugs, initially…how did the federal government get them to go along? (72)– Massive cash grants to agencies willing to make drug

law enforcement a top priority (72)– Equipment

• Between 1997-1999, local law enforcement agencies received 3.4 million pieces of military equipment including: 253 aircraft, Blackhawk and Huey Helicopters, 7,856 M-16 rifles, 181 grenade launchers (73)

– Funding to establish SWAT Teams (73)

Incentives to Support Drug War• Finders Keepers…– State and local law enforcement agencies are granted

the authority to keep up to 80% of the cash and assets they seize when waging the drug war…(77)• …Making the Drug War a profit motivated system

– Property can be seized on mere suspicion (78)– The Supreme Court has ruled “the guilt or innocence

of the property’s owner is irrelevant to the property’s guilt” (78)– THEREFORE, A PERSON EVENTUALLY FOUND INNOCENT OF

CRIMINAL ACTIVITY COULD STILL BE SUBJECT TO FORFEITURE OF SEIZED ASSETS• Most wrapped up in Drug War are to poor to afford an attorney

to fight for their assets, so they lose them. (78)• Massive costs/fees involved in forfeiture claims: Thus over 90% of

forfeiture cases in some jurisdictions go unchallenged (82)

Sentencing

Justice Served?

After Arrest• Despite the Gideon decision, tens of thousands of

poor people go to jail every year without ever speaking to a lawyer (83)

• Defendants who do are typically denied meaningful representation (83)• Most are represented by public defenders who are

overworked, underpaid, and understaffed (84)• 80% of criminal defendants are indigent and thus

unable to hire a lawyer…yet the nation’s public defender system is “woefully inadequate” (84)– Lake Charles, LA: The public defenders office had only

2 investigators for 2,500 new felony cases and 4,000 new misdemeanor cases (84)

The Plea Bargain

• Harsh sentencing forces many to reluctantly accept plea bargains (86)

• The prosecutor holds the cards…– The prosecutor is free to file more charges against a

defendant than can realistically be proven in court, so long as probable cause arguably exists…A practice known as overcharging (86)

• The threat of mandatory minimums pushes even the innocent to accept deals (87)– Reliable estimates of the number of INNOCENT

people currently in prison tend to range from 2-5% (87)

Racial Disparities in the Drug War

Have the Equal Protection Clause and Due Process Clause been

guaranteed to all?

Racial Disparities• “The law enforcement tactics described earlier have been

used almost exclusively in poor communities of color.”• In at least 15 states, black men are admitted to prison on

drug charges at rates 20 to 50 times greater than those of white men. (Alexander 7)

• In some major cities wracked in the drug war, as much as 80% of young African American men now have criminal records and thus are subjected to legalized discrimination for the rest of their lives.

• 1/3 young African American men are currently under the control of the criminal justice system: in prison, jail, probation, or on parole.

Racial Disparities

• African Americans were arrested at 26 times the level in 2000 as they were in 1983 (96).

• Although the majority of illegal drug users and dealers nationwide are white, ¾ of all people imprisoned for drug offenses have been black or Latino (96-97).

Racial Disparities

• In 2000, a Human Rights Watch report, found 7 different states in which African Americans constituted 80 to 90% of all drug offenders sent to prison. (96)

• In 2006, 1 in every 14 black men were behind bars, compared with 1 in every 106 white men (98)– The rate was worse for young black men, ages 20-

35, in which 1 in 9 are behind bars!!! (98)

Racial Disparities in Law Enforcement: A Mockery of Justice

• In a given year, more than 1 in 10 Americans violate drug laws… (101)

• Yet only a small fraction are arrested and incarcerated…

• Resources are limited…“STRATEGIC CHOICES MUST BE MADE ABOUT

WHOM TO TARGET AND WHAT TACTICS TO EMPLOY.(102)”

Racial Disparities in Law Enforcement

• Beginning in 1982, the Department of Justice & FBI cut ½ of its force working on identifying and prosecuting white collar crimes and shifted the resources to drug crime

Racial Disparities in Law Enforcement

• “The 1980s media bonanza fueled political goals by solidifying in the public imagination the image of the black drug criminal.” (Alexander 104)

• Whren v. U.S. (105)– Police officers are free to use minor traffic violations as an

excuse to stop motorists for drug investigations—even when there is no evidence whatsoever that the motorist has engaged in drug crime (105).

– “With no evidence required, police officers make snap judgments on who seems like a drug criminal and this is likely influenced by prevailing racial stereotypes and bias.” (Alexander 105)

Racial Disparities in Law Enforcement• McCleskey v. Kemp• Ruled racial bias in sentencing, even if shown through

credible statistical evidence, could not be challenged under the 14th Amendment in the absence of clear evidence of conscious discriminatory intent… (107)

• “Racial bias would be tolerated…so long as no one admitted it.” (107)– Essentially the decision states as long as a law doesn’t have

“discriminatory intent,” it didn’t matter if the results did.– i.e. In Georgia, the death penalty was applied in 70% of

cases involving black defendants and white victims v. 19% of cases with white defendants and black victims!...the courts found no issue with this. (107)

Racial disparities: Sentencing• Until 2011, under federal law, CRACK OFFENSES

WERE PUNISHED 100 TIMES MORE SEVERELY THAN CASES INVOLVING POWDER COCAINE (109)– A conviction for the sale of 500 grams of powder

cocaine triggered a 5 year mandatory sentence v. 5 grams of crack cocaine which yielded same sentence (Alexander 107)

– Georgia: “2 Strikes and Your Out Drug Law” (111)– Possible LIFE SENTENCE for the conviction of a second drug

offense– Georgia prosecutors used the provision against only 1% of

white defendants but 16% of black defendants!!! (111)– The result, 98.4% of those serving life sentences under

provision are African American (Alexander 111)

Impact of McCleskey v. Kemp

• “TO DATE, NOT A SINGLE SUCCESSFUL CHALLENGE HAS EVER BEEN MADE TO RACIAL

BIAS IN SENTENCING UNDER McCLESKEY V. KEMP.” (112)

Power of Prosecutors

• Few rules restrict prosecutors: Prosecutors may…– Dismiss a case for any reason or no reason at all,

regardless of the strength of the evidence (112)– File more charges against a defendant than can

realistically be proven, so long as probable cause arguably exists…forcing many to accept pleas (aka overcharging)

– Transfer juveniles to adult court (112)

• Prosecutors powers are virtually unchecked and their decisions unreviewable

Armstrong v. U.S. • Prosecutors are immune from claims of racial bias.• Out of 53 crack cases a public defenders office in

L.A. handled during a 3 year period, 48 defendants were black, 5 were Hispanic, 0 were white!!! (Sadly this is the NORM)– Interesting …considering the majority of crack users are

white– Whites are generally diverted by federal prosecutors to

the state system where penalties are far less severe (113)

Racial Disparities in Prosecution

• “Minority youth are more likely to be arrested, detained, formally charged, transferred to adult court, and confined than their white counterparts” (114)

• A 2000 report observed, “…African Americans were more than 6 times more likely as whites to be sentenced to prison for identical crimes” (114)

• African Americans have suffered from a systematic exclusion from juries as a result of Purkett v. Elm and thus many have truly been denied a jury of their peers (119)

Discrimination in policing

• “The Supreme Court has actually authorized race discrimination in policing.”

• Police Discretion– “People of all races engage in illegal drug activity

at similar rates, with such a large demographic to choose from, decisions must be made regarding who should be targeted…” (121)

– “Hypersegregation of the black poor in ghetto communities makes round-up easy.” (122)

Discrimination in Policing

• THE SUPREME COURT HAS AUTHORIZED THE POLICE TO USE RACE AS A FACTOR WHEN MAKING DECISIONS WHOM TO STOP AND SEARCH, AS LONG AS IT’S NOT THE “SOLE

FACTOR”

Discrimination in Policing

• Studies have shown police do, in fact, exercise discretion in a discriminatory manner.– N.J.—Data showed that only 15% of all drivers on the NJ

Turnpike were minorities, yet 42% of all stops and 73% of all arrests were black motorists…despite whites and blacks violating traffic laws at exactly the same rate. (131)

– MD—African Americans made up only 17% of drivers on I-95,outside Baltimore, yet they made up 70% of those who were stopped and searched. (131)

• “IN BOTH STUDIES, WHITES WERE ACTUALLY MORE LIKELY THAN PEOPLE OF COLOR TO BE CARRYING ILLEGAL DRUGS OR CONTRABAND.” (131)

Discrimination in Policing

• “Law enforcement officials often point to the racial composition of our prisons and jails as a justification for targeting racial minorities, but the empirical evidence actually suggests the opposite conclusion is warranted. The disproportionate imprisonment of people of color is, in part, a product of racial profiling—not justification for it.” (131)

Discrimination…Accepted

• “So long as mass drug arrests are concentrated in impoverished urban areas, police chiefs have little reason to fear political backlash, no matter how aggressive and warlike the efforts may be.”

A Cruel Fate

• The “white-only” signs may be gone, but new ones have gone up:– “Once labeled a felon, one’s criminal record,

today, authorizes precisely the forms of discrimination we left behind—discrimination in employment, housing, education, public benefits, and jury service. Those labeled criminals can even be denied the right to vote.” (138)

Felon Label=“Second Class Citizenship”

• Once released from incarceration…– Often denied the right to vote– Excluded from juries– Denied food stamps– Barred from public housing– Denied financial aid– Denied access to the mainstream economy• Studies have shown 95% of employers immediately

disregard an application if the box is checked indicating a felony conviction

What is left for an individual to turn to…?

ARE YOU READY TO JOIN THE FIGHT FOR JUSTICE IN AMERICA?

New Jim Crow Position Paper

• Write a 250 -400 word essay supporting or refuting Michelle Alexander’s argument that the War on Drugs has become the “New Jim Crow” (form of social control against African Americans & [Hispanics])…– A quick overview of her argument is that the War on Drugs and the

laws/policies that support it, disproportionately target the African American community…and that once these individuals are labeled felons (most for non-violent drug offenses), they are subject to the same social, political, and economic restrictions as African Americans during the Jim Crow Era of the first half of the 20th Century. (Contributing to the issue of cyclical poverty in the African American community).

• You might cite statistical evidence to back your position– Must include Works Cited (w/ at least 3 credible sources)