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The New Jim Crow

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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 ВЅ 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, Вѕ 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 2035, 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 ВЅ 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 I95,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)
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