Chapter 2: The Lockdown
The way television portrays the criminal justice system is misleading. The explosion of incarceration rates is due to convictions for drug crimes: two-thirds of the federal inmates entering between 1985-2000 were incarcerated for drugs and there have been 31 million since the drug war began. There are a few myths to be aware of: the War on Drugs is aimed at big drug kingpins (no, it’s mostly regular people with no history or violence) and it is aimed at dangerous drugs (no, it’s mostly getting marijuana users).
Alexander discusses how the rules work. The Supreme Court has helped the drug war through rulings that give law enforcement almost complete carte blanche in searches and seizures. The stop-and-frisk rule allows police to stop and frisk anybody if they have a “reasonable” suspicion of dangerous and criminal activity. In a case about random searches, Terence Bostick was randomly searched on a bus and convicted of having cocaine on him. The Court upheld this, and argued that people can refuse to be searched; however, most people would be too afraid or nervous to deny a police officer’s request. In regard to pretext stops, the police can stop anyone driving for almost anything and then search for illegal drugs. Lawyers in a case regarding pretext stops said “because of the multitude of applicable traffic and equipment regulations, and the difficulty of obeying all traffic rules perfectly at all times, the police will nearly always have an excuse to stop someone and go fishing for drugs” (67). This did not convince the Court, and they continued to indicate there were and are no limitations on the War on Drugs.
Unfortunately, only the guilty people are seen and heard; innocent people of color rarely push back against the injustices they are subjected to. They fear harassment and retaliation and thus do nothing. Therefore, judges typically only see the actually guilty and it is easy for them to conclude the police know what they are doing. However, law enforcement officers do not actually receive any training that would help them spot drug criminals and leave everyone else driving alone. One of the biggest programs, Operation Pipeline, proved useless; 95 percent of the stops yielded no drugs. Drug-courier profiles are also notoriously haphazard and contradictory.
When the War on Drugs was first announced, law enforcement was resistant, but once cash became an incentive, they embraced the program with abandon. Overall, the average person seems to think that when drug arrest rates are up, it is due to an increase in crime rather than an increase in funding and other incentives for police enforcement. However, a great deal of money was given to police departments along with special training and technical support. The militarization of police became ubiquitous. SWAT teams became common in the 1980s as a way to conduct drug raids, but they could be terrifying, dangerous, and actually result in the deaths of innocent people.
State and local law enforcement agencies were also granted the right to keep most of the cash and assets seized during the drug war. This increased the budgets of police departments and over 80 percent of forfeitures went uncontested. Furthermore, officers are told they need to keep their numbers up so budgets and grants will stay high or be renewed. There have been reports of planted drugs and falsified evidence in order to seize cash. These laws helped wealthy people turn over assets to buy their freedom while poor people could not. There is a thin line between police acting lawfully and unlawfully in taking property.
This Civil Asset Forfeiture Reform Act in 2000 somewhat remedied this situation, but it mostly cited issues with wealthy whites whose property was seized. Problems remain overall, especially since a person is not entitled to an attorney in forfeiture cases – only if they are charged with a crime. Poor people cannot afford the lawyer fees to get their assets back.
Once arrested, a person will rarely ever gain freedom from the system. Many poor people never talk to lawyers and are forced to make quick decisions that will affect the rest of their lives. Eighty percent of criminal defendants cannot afford a lawyer and are stuck with overworked public defenders. Sometimes they languish in jail for years. Many are compelled to plead guilty and will never see a courtroom. Guilty pleas have skyrocketed thanks to the War on Drugs with its extremely long mandatory minimums; this is very different than other developed countries. Snitching has also gone up because people are looking for a way out of extremely punitive sentences. Alexander clarifies that the issue is not that innocent people are being locked up but that there is no regard for their guilt or innocence, searches are unconstitutional, attorneys are poor, and the sentences are harsh.
Although sending a drug offender to treatment would be more economical, prudent, and tolerable, it is not done. Mandatory sentences give no choice to judges, even if they wish to be lenient. People who commit minor crimes end up with incredibly harsh punishments. Later, tragically, their status as a felon, which limits their ability to provide for themselves and their families, may force them to break the law again. A study found that 68 percent of people released from jail were back in jail within three years for a new offense, most being minor offenses. Parole is also difficult because of the stringency of the rules and the ease with which people can be thrown back into jail. Alexander quotes one scholar who calls this a “closed circuit of perpetual marginality” (95).
Chapter 3: The Color of Justice
Alexander begins with two anecdotes about African Americans stuck in the system with nowhere to go. She asserts that the drug war racially defines the enemy. Although most of the dealers and users of drugs are white, three-fourths of those imprisoned for drug offenses are black or Latino; in seven states they are 80-90 percent of those imprisoned. People of all races use drugs at the same rate and young white men are actually those most likely to be guilty of illegal possession or selling and those most admitted to emergency rooms.
So why, then, is this the case? Overt racism is (mostly) a thing of the past and the law is ostensibly colorblind. People simply think black men are more prone to violent crimes and that is why more of them are locked up. However, violent crime rates fluctuate in ways unrelated to incarceration rates. It is “the genius of the new system of control that it can always be defended on nonracial grounds, given the rarity of a noose or racial slur in connection with any particular criminal case” (103).
Of course, manifold racial justifications exist. First, law enforcement has a great deal of discretion in deciding whom to stop, search, and arrest. Unless someone has proof of actual racial bias in this event there is nothing that can be done. Second, as drug activity is a consensual illegal activity between seller and buyer, the police have to be more proactive in their policing. Third, the story in the 1980s focused on white crack users rather than black, but the media later shifted its attention and gave everyone a different perspective on drug users. Studies show that people almost always envision a black person when asked to picture a drug user. They are also harsher in studies asking them to punish an alleged criminal if he or she has very dark skin. Racial bias in the drug war is seemingly inevitable, Alexander concludes.
Sadly, the Supreme Court adopted rules that would maximize racial discrimination. Claims of racial bias are not even allowed under the Fourth Amendment, and the caveat that one could do so under the Equal Protection Clause of the Fourteenth Amendment was virtually impossible to enforce. In the McCleskey case, a black man sentenced to death claimed racial bias - even though a well-done, thorough study (the Baldus study) essentially proved that white defendants were treated more leniently than black ones in Georgia murder cases, the Court was not swayed and claimed evidence had to be conscious and clear. Alexander writes, “the Court’s opinion was driven by a desire to immunize the entire criminal justice system from claims of racial bias” (111).
After the McCleskey case, it became especially difficult to claim racial bias. In the case for Edward Clary, a young man with no priors caught transporting a small amount of drugs and sentenced to ten years, the judge ruled that there was racial bias in the sentencing of crack users, but his ruling was overturned by a higher court.
There are also major problems with prosecutorial discretion. Prosecutors are extremely powerful and can be very unfair and discriminatory. In the Christopher Armstrong case, his lawyers used an 1886 Supreme Court case, Yick Wo v. Hopkins, to argue that racial discrimination exists in the enforcement of crack offenses. Prosecutors refused to release documents that had to do with this and the Supreme Court agreed to take the case. In their decision, they asserted deference to prosecutorial discretion and created a Catch-22 situation in which defendants have to offer evidence that they need in advance even though it can only be attained through looking at prosecutors' files.
Problems also exist in jury selection. Even though it is unconstitutional to discriminate based on race in jury selection, it still happens all the time and black defendants end up with white juries. Lawyers can get away with it as long as it’s not explicit. Furthermore, most jury selection comes from places like DMV lists which have less people of color and felons cannot serve. Prosecutors can get away with absurd reasons for excluding jurors and the Supreme Court has done nothing to preclude this practice.
While prosecutors have the most power, clearly police have the most discretion. They choose to go into the ghettos to look for drugs, and subject the poor who have been forced to live there to their persecutions. To many it seems like an occupation; the police are very militarized and hostile. Some people claim it easier for them to police there because there are more public transactions. However, the incentives to deal drugs are so great that one dealer will just replace another; the drug war is going nowhere and is doomed to fail.
One study in Seattle more or less proved that the Seattle police department targeted black people in their drug arrests even though all of the data pointed to higher rates of whites buying and selling. With all this conspicuous evidence, why is it so hard for African Americans to file discrimination lawsuits? As Alexander and other scholars note, the Supreme Court has placed insurmountable barriers in the way of doing so. It is almost impossible to challenge systemic race dissociation. Furthermore, the state and the state police cannot be sued for damages and city police departments cannot be sued unless there is a specific policy or custom that explicitly discriminates by race. This intentional discrimination is virtually impossible to find.
At other stages of the criminal justice system, racial bias triggers strict scrutiny but in policing race can be used as a factor. Police relying on stereotypes are dangerous, of course, and no race-neutral definition works either (i.e., ghettos are not race-neutral because they were built for blacks to live there). There are dozens of studies done that reveal the prevalence of racial profiling in both traffic stops and pedestrian stops. Justifications are weak and the resulting database of young black men is dangerous and harmful.
Overall, the courthouse doors are closed to claims of racial bias at every step; the Sandoval case even took away the right of private litigants to bring cases under Title VI regarding racial discrimination, and the federal government is certainly loath to commit resources and antagonize local law enforcement.
Alexander begins Chapter 2 by referencing the television show Law and Order. It is not a glib reference because many Americans actually picture the criminal justice system as portrayed in the television show. In addition, most Americans’ typical high school civics class teach students about civil rights and liberties and famous Supreme Court cases that ostensibly protect said rights and liberties; as a result, Americans can easily come to the conclusion that things are more or less equal and the system works. Later, Alexander will discuss the denial, apathy, ignorance, and indifference that allow Americans to keep picturing the criminal justice system in this way, but in these two chapters she does not allow her readers to get away with it. She presents a plethora of data that again explodes the assumptions and stereotypes that maintain the racial caste system.
First, she presents facts regarding drug use. While people might think people of color buy, sell, and use drugs more than whites, that is patently false. The incarceration rates for people of color are dramatically and tragically higher than those of their white counterparts. The people arrested are also mostly regular people, not drug kingpins, and they committed no violent crimes.
Second, she reveals unfair policing practices. Police comb poor black neighborhoods and have the right to stop anyone for any reason. They have no legitimate training in how to look for drug users.
Third, she points out that many people cannot afford a lawyer and are stuck with overworked public defenders.
Fourth, she emphasizes that police departments have incredible incentives to lock up people and seize their assets – they are told their budgets depend on it, and they get to keep much of what is seized.
In an interview with NPR, Alexander explains how these factors led her to idea of a racial caste system. "I think it's very easy to brush off the notion that the system operates much like a caste system, if in fact you are not trapped within it. I have spent years representing victims of racial profiling and police brutality and investigating patterns of drug law enforcement in poor communities of color, and attempting to help people who have been released from prison attempting to 're-enter' into a society that never seemed to have much use to them in the first place... My experience and research has led me to the regrettable conclusion that our system of mass incarceration functions more like a caste system than a system of crime prevention or control."
In Chapter 3, Alexander shows how racism permeates almost every aspect of the criminal justice system after the initial arrest. There are very few, if any, legal avenues in which to pursue redress or even acknowledgment of racism. At almost every stage of the system, race comes into play.
When the War on Drugs started, law enforcement was encouraged to go after crack cocaine, more commonly used by African Americans than the powder cocaine used by whites. Mandatory minimums were established to disproportionately punish people caught with these drugs – people who were, of course, mostly black. Concomitantly, the media began to depict these crack-users as the scourge of humanity, and since this scourge was black, the picture of a typical criminal became racialized.
With the stereotypes in place, police with the discretion to stop whomever they please can be quite dangerous. They do not usually say anything explicit about race, which is beneficial because various Supreme Court cases have made it nearly impossible to bring suits alleging bias in apprehending or sentencing. Law enforcement claims they go into ghettos because all the drug users live there, but in reality it is where all the black people are due to housing discrimination in the 20th century. There is no such thing as race-neutral.
When it comes to the trail itself, juries are often not comprised of a person’s peers, especially if that person is black and poor. Lawyers have ingenious, Court-protected ways of getting rid of jurists who may be sympathetic to the plaintiff. Racial bias also exists in sentencing, as the death penalty is more common for blacks than whites convicted of the same crime.