TEACHING TOLERANCE

A PROJECT OF THE SOUTHERN POVERTY LAW CENTER TOLERANCE.ORG

TEACHING

The New Jim Crow

THE NEW JIM CROW by Michelle Alexander

CHAPTER 2

The Lockdown We may think we know how the criminal justice system works. Television is overloaded with fictional dramas about police, crime, and prosecutors—shows such as Law & Order. A charismatic police officer, investigator, or prosecutor struggles with his own demons while heroically trying to solve a horrible crime. He ultimately achieves a personal and moral

victory by finding the bad guy and throwing him in jail. That is the made-for-TV ver- sion of the criminal justice system. It perpetuates the myth that the primary

function of the system is to keep our streets safe and our homes secure by rooting out dangerous criminals and punishing them.

Those who have been swept within the criminal justice system know that the way the system actually works bears little resemblance to what happens

on television or in movies. Full-blown trials of guilt or innocence rarely occur; many people never even meet with an attorney; witnesses are routinely paid and

coerced by the government; police regularly stop and search people for no reason whatso- ever; penalties for many crimes are so severe that innocent people plead guilty, accepting plea bargains to avoid harsh mandatory sentences; and children, even as young as fourteen, are sent to adult prisons.

In this chapter, we shall see how the system of mass incarceration actually works. Our focus is the War on Drugs. The reason is simple: Convictions for drug offenses are the single most important cause of the explosion in incarceration rates in the United States. [M]ore than 31 million people have been arrested for drug offenses since the drug war began.1 To put the mat- ter in perspective, consider this: there are more people in prisons and jails today just for drug offenses than were incarcerated for all reasons in 1980.2 Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the War on Drugs.

Before we begin our tour of the drug war, it is worthwhile to get a couple of myths out of the way. The first is that the war is aimed at ridding the nation of drug “kingpins” or big-time dealers. Nothing could be further from the truth. The vast majority of those arrested are not charged with serious offenses. In 2005, for example, four out of five drug arrests were for possession, and only one out of five was for sales. Moreover, most people in state prison for drug offenses have no history of violence or significant selling activity.3

The second myth is that the drug war is principally concerned with dangerous drugs. Quite to the contrary, arrests for marijuana possession—a drug less harmful than tobacco or alco- hol—accounted for nearly 80 percent of the growth in drug arrests in the 1990s.4

Abridged excerpt from The New Jim Crow: Mass Incar- ceration in the Age of Colorblindness — Copyright © 2010, 2012 by Michelle Alexander. Reprinted by permission of The New Press. thenewpress.com

BOOK

EXCERPT

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The percentage of drug arrests that result in prison sentences (rather than dismissal, com- munity service, or probation) has quadrupled, resulting in a prison-building boom the likes of which the world has never seen. In two short decades, between 1980 and 2000, the num- ber of people incarcerated in our nation’s prisons and jails soared from roughly 300,000 to more than 2 million. By the end of 2007, more than 7 million Americans—or one in every 31 adults—were behind bars, on probation, or on parole.5

We begin our exploration of the drug war at the point of entry—arrest by the police—and then consider how the system of mass incarceration is structured to reward mass drug arrests and facilitate the conviction and imprisonment of an unprecedented number of Americans, whether guilty or innocent.

Rules of the Game Few legal rules meaningfully constrain the police in the War on Drugs. This may sound like an overstatement, but upon examination it proves accurate. The absence of significant constraints on the exercise of police discretion is a key feature of the drug war’s design. It has made the roundup of millions of Americans for nonviolent drug offenses relatively easy.

With only a few exceptions, the Supreme Court has seized every opportunity to facilitate the drug war, primarily by eviscerating Fourth Amendment protections against unreason- able searches and seizures by the police.

Most Americans do not know what the Fourth Amendment of the U.S. Constitution actu- ally says or what it requires of the police. It states, in its entirety:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Until the War on Drugs, courts had been fairly stringent about enforcing the Fourth Amendment’s requirements.

The Fourth Amendment is but one example. Virtually all constitutionally protected civil liberties have been undermined by the drug war. The Court has been busy in recent years ap- proving mandatory drug testing of employees and students, upholding random searches and sweeps of public schools and students, permitting police to obtain search warrants based on an anonymous informant’s tip, expanding the government’s wiretapping authority, legiti- mating the use of paid, unidentified informants by police and prosecutors, approving the use of helicopter surveillance of homes without a warrant, and allowing the forfeiture of cash, homes, and other property based on unproven allegations of illegal drug activity.

These new legal rules have ensured that anyone, virtually anywhere, for any reason, can be- come a target of drug-law enforcement activity.

 

 

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Unreasonable Suspicion Once upon a time, it was generally understood that the police could not stop and search someone without a warrant unless there was probable cause to believe that the individual was engaged in criminal activity. That was a basic Fourth Amendment principle. In Terry v. Ohio, decided in 1968, the Supreme Court modified that understanding, but only modestly, by ruling that if and when a police officer observes unusual conduct by someone the officer reasonably believes to be dangerous and engaged in criminal activity, the officer “is entitled for the protection of himself and others in the area” to conduct a limited search “to discover weapons that might be used against the officer.”6 Known as the stop-and-frisk rule, the Terry decision stands for the proposition that, so long as a police officer has “reasonable articulable 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.

Justice Douglas dissented in Terry on the grounds that “grant[ing] police greater power than a magistrate [ judge] is to take a long step down the totalitarian path.”7 His voice was a lonely one. Most commentators at the time agreed that affording police the power and discretion to protect themselves during an encounter with someone they believed to be a dangerous criminal is not “unreasonable” under the Fourth Amendment.

History suggests Justice Douglas had the better of the argument. In the years since Terry, stops, interrogations, and searches of ordinary people driving down the street, walking home from the bus stop, or riding the train, have become commonplace—at least for people of color. Today it is no longer necessary for the police to have any reason to believe that people are engaged in criminal activity or actually dangerous to stop and search them. As long as you give “consent,” the police can stop, interrogate, and search you for any reason or no reason at all.

Poor Excuse So-called consent searches have made it possible for the police to stop and search just about anybody walking down the street for drugs. All a police officer has to do in order to conduct a baseless drug investigation is ask to speak with someone and then get their “con- sent” to be searched. So long as orders are phrased as a question, compliance is interpreted as consent. “May I speak to you?” thunders an officer. “Will you put your arms up and stand against the wall for a search?” Because almost no one refuses, drug sweeps on the sidewalk (and on buses and trains) are easy. People are easily intimidated when the police confront them, hands on their revolvers, and most have no idea the question can be answered, “No.” But what about all the people driving down the street? How do police extract consent from them? The answer: pretext stops.

Like consent searches, pretext stops are favorite tools of law enforcement in the War on Drugs. A classic pretext stop is a traffic stop motivated not by any desire to enforce traffic laws, but instead motivated by a desire to hunt for drugs in the absence of any evidence of illegal drug activity. In other words, police officers use minor traffic violations as an ex- cuse—a pretext—to search for drugs, even though there is not a shred of evidence suggest- ing the motorist is violating drug laws. Pretext stops, like consent searches, have received the Supreme Court’s unequivocal blessing.

 

 

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