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Unformatted text preview: 94 THE NEWJIM caow trapped by their second-class status, has been described by Lo'ic Wacquant ( «Has, a “closed circuit of perpetual marginality.”94 Hundreds of thousands of ./ 5. L people are released from prison every year, only to find themselves locked out of the mainstream society and economy. Most ultimately return to prison, sometimes for the rest of their lives. Others are released again, only to find themselves in precisely the circumstances they occupied before, unable to cope with the stigma of the prison label and their permanent pariah status. Reducing the amount of time people spend behind bars—by eliminating harsh mandatory minimums—will alleviate some of the unnecessary suffer- ' g caused by this system, but it will not disturb the closed circuit. Those la— beled felons will continue to cycle in and out of prison, subject to perpetual surveillance by the police, and unable to integrate into the mainstream society and economy. Unless the number of people who are labeled felons is dram matically reduced, and unless the laws and policies that keep cit—offenders marginalized from the mainstream society and economy are eliminated, the system will continue to create and maintain an enormous undercaste. Michelle. Alfinawéer, 'WNew 3m cm...” New Press zoi o 3 The Color of Justice Imagine you are Emma Faye Stewart, a thirty-year-old, single African Amer- ican mother of two who was arrested as part of a drug sweep in Hearne, Texas. 1 All but one of the people arrested were African American. You are in- nocent. After a week in jail, you have no one to care for your two small chil- dren and are eager to get home. Your court-appointed attorney urges you to plead guilty to a drug distribution charge, saying the prosecutor has offered probation. You refuse, steadfastly proclaiming your innoCence. Finally, after almost a month in jail, you decide to plead guilty so you can retum home to your children. Unwilling to risk a trial and years of imprisonment, you are sentenced to ten years probation and ordered to pay $1,000 in lines, as Well as court and probation costs. You are also now branded a drug felon. You are no longer eligible for food stamps; you may be discriminated against in em- ployment; you cannot vote for at least twelve years; and you are about to be evicted from public housing. Once homeless, your children will be taken from you and put in foster care. A judge eventually dismisses all cases against the defendants who did notj ‘/ plead guilty At trial, the judge finds that the entire sweep was based on the testimony of a single informant who lied to the prosecution. You, however, are still a drug felon, homeless, and desperate to regain custody of your children. Now place yourself in the shoes of Clifford Runoalds, another African American victim of the Hearne drug hust.2 You returned home to Bryan, Texas, to attend the funeral of your eighteen—month—old daughter. Before the 96 THE NEW JIM caow funeral services begin, the police show up and handcuff you. You beg the of— ficers to let you take one last look at your daughter before she is buried. The police refuse. You are told by prosecutors that you are needed to testify against one of the defendants in a recent drug bust. You deny witnessing any drug transaction; you don’t know what they are talking about. Because of your refusal to cooperate, you are indicted on felony charges. After a month of being held in jail, the charges against you are dropped. You are technically free, but as a result of your arrest and period of incarceration, you lose your job, your apartment, your furniture, and your car. Not to mention the chance to say good-bye to your baby girl. This is the War on Drugs. The brutal stories described above are not iso- iated incidents, nor are the racial identities of Emma Faye Stewart and Clif- ford Runoalds random or accidental. In every state across our nation, African Americans—particularly in the poorest neighborhoods—are subjected to tactics and practices that would result in public outrage and scandal if committed in middle—class white neighborhoods. In the drug war, the enemy is racially defined. The law enforcement methods described in chapter 2 have been employed almost exclusively in poor communities of color, result- ing in jaw-dropping numbers of African Americans and Latinos filling our nation’s prisons and jails every year. We are told by drug warriors that the en- emy in this war is a thing—drugs—not a group of people, but the facts prove otherwise. Human Rights Watch reported in 2000 that, in seven states, African Americans constitute 80 to 90 percent of all drug offenders sent to prison.3 In at least fifteen states, blacks are admitted to prison on drug charges at a rate from twenty to fifty—seven times greater than that of white men.4 In fact, nationwide, the rate of incarceration for African American drug offenders dwarfs the rate of whites. When the War on Drugs gained full steam in the mid-19805, prison admissions for African Americans skyrocketed, nearly quadrupling in three years, and then increasing steadily until it reached in 2000 a level more than twenty-six times the level in 1983.5 The number of 2000 drug admissions for Latinos was twentyatwo times the number of 1983 admissions.t3 Whites have been admitted to prison for drug offenses at in- creased rates as well—the number of whites admitted for drug offenses in 2000 was eight times the number admitted in 1983~—but their relative numbers are smail compared to blacks’land Latinos’.7 Althoughthe majority of illegal drug users and dealers nationwide are__white_,_ three—fourths of ail THE COLOR or JUSTICE 97 Beale imprisoned for drug offenses haveieariar...g;_.raao.t In years, rates of blachiihpnsonment for drug offenses have dipped somewhate declining approximately 25 percent from their zenith in the mid-19905w but it remains the case that African Americans are incarcerated at grossly disproportionate rates throughout the United States.9 There is, of course, an official explanation for all of this: crime rates. This explanation has tremendous appeal—before you know the facts—for it is consistent with, and reinforces, dominant racial narratives about crime and criminality dating back to slavery. The truth, however, is that rates and pat— terns of drug crime do not explain the glaring racial disparities in our crimi- nal justice system. People of all races use and seli illegal drugs at remarkablyl similar rates.10 If there are significant differences in the surveys to be found,- they frequently suggest that whites, particularly white youth, are more likely to engage in illegal drug dealing than people of coior.U One study, for exam- ple, published in 2000 by the National Institute on Drug Abuse reported that white students use cocaine at seven times the rate of black students, 7 use crack cocaine at eight times the rate of black students, and use heroin , at seven times the rate of black students.12 That same survey revealed that - nearly identicai percentages of white and black high school seniors use maru I ijuana. The National Household Survey on Drug Abuse reported in 2000 -‘ that white youth aged 12—17 are more than a third more likely to have sold illegal drugs than African American youth.13 Thus the very same year Hu- man Rights Watch was reporting that African Americans were being arrested and imprisoned at unprecedented rates, government data revealed that—“'” white youth were actually the most likely of any racial or ethnic group to be " blacks were no more likely to be guilty of drug crimes than whites and that} guilty of illegal drug pOSsession and sales. Any notion that drug use among ' blacks is more severe or dangerous is belied by the data; White youth have about three times the number of drug-related emergency room visits as their African American counterparts.” The notion that whites comprise the vast majority of drug users and dealers—wand may well be more iikely than other racial groups to commit drug crimes—may seem implausible to some, given the media imagery we are fed on a daily basis and the racial composition of our prisons and jails. Upon reflection, however, the prevalence of white drug crime—including drug dealingeshould not be surprising. After all, where do whites get their illegal drugs? Do they all drive to the ghetto to purchase them from somebody 98 THE NEW jIM caow standing on a street corner? No. Studies consistently indicate that drug mar- kets, like American society generally, reflect our nation’s racial and socioeco— nomic boundaries. Whites tend to sell to whites; blacks to blacks.15 University - students tend to sell to each other.16 Rural whites, for their part, don’t make a special trip to the ’hood to purchase marijuana. They buy it from somebody down the road. 17 White high school students typically buy drugs from white classmates, friends, or older relatives. Even Barry McCaffrey, former direc— tor of the White House Office of National Drug Control Policy, once re- marked, if your child bought drugs, "it was from a student of their own race generally.”18 The notion that most illegal drug use and sales happens in the ghetto is pure fiction. Drug trafficking occurs there, but it occurs everywhere else in America as well. Nevertheless, black men have been admitted to state prison on drug charges at a rate that-is more than thirteen times higher than white men.19 The racial bias inherent in the drug war is a major reason that i in every 14 black men was ehind bars in 2 , compare Wit in 106 White In . ng ack men, the statistics a n worse. One inmm'en between the ages of twenty and thirtyafrve was behind bars in 2006, and far more were under some form of penal control—such as proH g bation or parole.21 These gross racial diSparities simply cannot be explained ‘ by rates of illegal drug activity among African Americans. What, then, does explain the extraordinary racial disparities in our criminal , justice system? Old-fashioned racism seems out of the question. Politicians and law enforcement officials today rarely endorse racially biased practices, and most of them fiercely condemn racial discrimination of any kind. When accused of racial bias, police and prosecutors—dike most Americans; express horror and outrage. Forms of race discrimination that were open and notorious for centuries were transformed in the 1960s and 1970s into If something un-Arnerican—an affront to our newly conceived ethic of color- blindness. By the early 1980s, survey data_indicated that 90 percent of whites thought black and white children should attend the same schools, 71 percent disagreed with the idea that Whites have a right to keep blacks out of their neighborhoods, 80 percent indicated they would support a black candidate for president, and 66 percent opposed laws prohibiting in- termarriage.22 Although far fewer supported specific policies designed to jachieve racial equality or integration (such as busing), the mere fact that large majorities of whites were, by the early 19805, supporting the antidisa THE COLOR or JUSTICE 99 crimination principle reflected a profound shift in racial attitudes. The mar- gin of support for colorblind norms has only increased since then. This dramatically changed racial climate has led defenders of mass incar- ceration to insist that our criminal justice system, whatever its past sins, is f‘ now largely fair and nondiscriminatory. They point to violent crime rates ii the African American community as a justification for the staggering num- ber of black men who find themselves behind bars. Black men, they say, have much higher rates of violent crime; that’s why so many of them are locked in prisons. Typically, this is where the discussion ends. The problem with this abbreviated analysis is that violent crime is not re- sponsible for the prison boom. As numerous researchers have shown, violent crime rates have fluctuated over the years and bear little relationship to in« carceration rates—which have soared during the past three decades regard- less of Whether violent crime was going up or down.23 Today violent crime rates are at historically low levels, yet incarceration rates continue to climb. Murder convictions tend to receive a tremendous amount of media atten— tion, which feeds the public’s sense that violent crime is rampant and for- ever on the rise. But like violent crime in general, the murder rate cannot explain the prison boom. Homicide convictions account for a tiny fraction of the growth in the prison population. in the federal system, for example, ho- micide offenders account for 0.4 percentof the past decade’s growth in the federal prison population, while drug offenders account for nearly 61 per- 7» cent of that expansion.24 In the state system, less than 3 percent of new , court commitments to state prison typically involve people convicted of hos micide.25 As much as a third of state prisoners are violent offenders, but that statistic can easily be misinterpreted. Violent offenders tend to get longer prison sentences than nonviolent offenders, and therefore comprise a much *- larger share of the prison population than they would if they had earlier re- lease dates. The uncomfortable reality is that convictions for drug offensese not violent crime—are the single most important cause of the prison boom in the United States, and people of color are convicted of drug offenses at rates out of all proportion to their drug crimes. These facts may still leave some readers unsatisfied. The idea that the criminal justice system discriminates in such a terrific fashion when few people openly express or endorse racial discrimination may seem far-fetched, 100 THE NEW JIM CROW if not absurd. How could the War on Drugs operate in a discriminatory man- ner, on such a large scale, when hardly anyone advocates or engages in ex‘ plicit race discrimination? That question is the subject of this chapter. As we shall see, despite the colorblind rhetoric and fanfare of recent years, the de sign of the drug war effectively guarantees that those Who are swept into the nation’s new undercaste are largely black and brown. This sort of claim invites skepticism. Nonracial explanations and excuses for the systematic mass incarceration of people of color are plentiful. 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 a racial slur in connection with any particular criminal case. Moreover, because blacks and whites are almost never similarly situated (given extreme racial segregation in hous— ing and disparate life experiences), trying to "control for race” in an ef— fort to evaluate whether the mass incarceration of people of color is really about race or something else—anything else—is difficult. But it is not impossible. A bit of common sense is overdue in public discussions about racial bias in the criminal justice system. The great debate over whether black men have been targeted by the criminal justice system or unfairly treated in (the War on Drugs often overlooks the obvious. What is painfully obvious when one steps back from individual cases and specific policies is that the i system of mass incarceration operates with stunning efficiency to SWeep people of color off the streets, lock them in cages, and then release them l\‘into an inferior second—class status. Nowhere is this more true than in the War on Drugs. The central question, then, is how exactly does a formally colorblind crime inal justice system achieve such racially discriminatory results? Rather eas- ily, it turns out. The process occurs in two stages. The first step is to grant law enforcement officials extraordinary discretion regarding whom to stop, search, arrest, and charge for drug offenses, thus ensuring that conscious e and unconscious racial beliefs and stereotypes will be given free reign. Un- bridled discretion inevitably creates huge racial disparities. Then, the damn- " ing step: Close the courthouse doors to all claims by defendants and private litigants that the criminal justice system operates in racially discriminatory i fashion. Demand that anyone who wants to challenge racial bias in the sys- tem offer, in advance, clear proof that the racial disparities are the product THE COLOR or JUSTICE 101 .iwill almost never be available in the era of colorblindness, because everyone - knowse—but does not sayfithat the enemy in the War on Drugs can be iden‘ : tified by race. This simple design has helped to produce one of the most ex- traordinary systems of racialized social control the world has ever seen. Picking and Choosing—The Role of Discretion Chapter 2 described the first step in some detail, including the legal rules that grant police the discretion and authority to stop, interrogate, and search anyone, anywhere, provided they get “consent” from the targeted individual. It also examined the legal framework that affords prosecutors extraordinary discretion to charge or not charge, plea bargain or not, and load' up defen- dants with charges carrying the threat of harsh mandatory sentences, in or- der to force guilty pleas, even in cases in which the defendants may well be innocent. These rules have made it possible for law enforcement agencies to boost dramatically their rates of drug arrests and convictions, even in com- munities where drug crime is stable or declining.26 But that is not all. These rules have also guaranteed racially discriminatory results. The reason is this: Drug-law enforcement is unlike most other types of law enforcement. When a violent crime or a robbery or a trespass occurs, someone usually calls the police. There is a clear victim and perpetrator. Someone is hurt or harmed in some way and wants the offender punished. But with drug crime, neither the purchaser of the drugs nor the seller has any incentive to contact law enforcement. It is consensual activity. Equally important, it is pgptllar. The clear majority of Americans of all races have vi- in ten Americans violate drug laws. But due to resource constraints (and the politics of the drug war), only a small fraction are arrested, convicted, and for a drug offense.27 The ubiquity of illegal drug activity, combined with its consensual nature, incarcerated. In 2002, for example, there were 19.5 million illicit drug users, " compared to 1.5 million drug arrests and 175,000 people admitted to prison fl requires a far more proactive approach by law enforcement than what is re— . of intentional racial discrimination—tie, the work of a bigot. This evidence olated drug laws in their lifetime. In fact, in any given year, more than one ‘1 “iv, quired to address ordinary street crime. It is impossible for law enforcement - 102 THE NEWJIM caow to identify and arrest every drug criminal. Strategic choices must be made about whom to target and what tactics to employ. Police and prosecutors did not declare the War on Drugs—and some initially opposed it—but once the financial incentives for waging the war became too attractive to ignore, law enforcement agencies had to ask themselves, if we're going to wage this war, where should it be fought and who should be taken prisoner? That question was not difficult to answer, given the political and social context. As discussed in chapter 1, the Reagan administration launched a media campaign a few years after the drug war was announced in an effort to publicize horror stories involving black crack users and crack dealers in ghetto communities. Although crack cocaine had not yet hit the streets when the War on Drugs was declared in 1982, its appearance a few years later created the perfect opportunity for the Reagan administration to build support for its new war. Drug use, once considered a private, public-health matter, was refrained through political rhetoric and media imagery as a grave threat to the national order. Jimmie Reeves and Richard Campbell show in their research how the "-' media imagery surrounding cocaine changed as the practice of smoking co- caine came to be associated with poor blacks.28 Early in the 19805, the typi- cal cocaine-related story focused on white recreational users who snorted the drug in its powder form. These stories generain relied on news sources associated with the drug treatment industry, such as rehabilitation clinics, and emphasized the possibility of recovery. By 1985, however, as the War on Drugs moved into high gear, this frame was supplanted by a new “siege para- digm,” in which transgressors were poor, nonwhite users and dealers of crack cocaine. Law enforcement officials assumed the role of drug "experts," em- phasizing the need for law and order responses-a crackdown on those as- sociated with the drug. These findings are consistent with numerous other studies, including a study of network television news from 1990 and 1991, fr which found that a predictable r‘us against them” frame was used in the ! news stories, with r‘us” being white, suburban America, and “them” being IX blackAmericans and a few corrupted whites.29 The media bonanza inspired by the administration’s campaign solidified E in the public imagination the image of the black drug criminal. Although ex— plicitly racial political appeals remained rare, the calls for “war” at a time when the media was saturated with images of black drug crime left little doubt about who the enemy was in the War on Drugs and exactly what he THE cocoa or JUSTICE 103 looked like. Jerome Miller, the former executive director of the National Center for Institutions and Alternatives, described the dynamic this way:c, "There are certain code words that allow you never to have to say ‘race,’ but everybody knows that’s what you mean and 'crime’ is one of those. . . . So ' when we talk about locking up more and more people, what we’re reain talk- 1 ing about is locking up more and more black men.”30 Another commentator noted, “it is unnecessary to speak directly of race [today] because speaking about crime is talking about race.”31 Indeed, not long after the drug war was ramped up in the media and political discourse, almost no one imagined that drug criminals could be anything other than black. A survey was conducted in 1995 asking the following question: "Would you close your eyes for a second, envision a drug user, and describe that per- son to me?" The startling results were published in the Journal of Alcohol and Drug Education. Ninety-five percent of respondents pictured a black? drug user, while only 5 percent imagined other racial groups.32 These results contrast sharply with the reality of drug crime in America. African Amen-é cans constituted only 15 percent of current drug users in 1995, and they) constitute roughly the same percentage today. Whites constituted the vast majority of drug users then (and now), but almost no one pictured a white person when asked to imagine what a drug user looks like. The same group of respondents also perceived the typical drug trafficker as black. There is no reason to believe that the survey results would have been any different if police officers or prosecutors—rather than the general public— had been the respondents. Law enforcement officials, no less than the rest of us, have been exposed to the racially charged political rhetoric and media imagery associated with the drug war. In fact, for nearly three decades, new stories regarding virtually all street crime have disproportionately featured African American offenders. One study suggests that the standard crime news “script” is so prevalent and so thoroughly raciaiized that viewers imag- ine a black perpetrator even when none exists. In that study, 60 percent of viewers who saw a story with no image falsely recalled seeing one, and 70 percent of those viewers believed the perpetrator to be African American.33 Decades of cognitive bias research demonstrates that both unconscious and conscious biases lead to discriminatory actions, even when an individual} does not want to discriminate.34 The quotation commonly attributed to Nietzsche, that “there is no immaculate perception," perfectly captures how cognitive schemas-e—thohghtstructu're's’l“'iiifliieiice what we notice and 104 THE NEW JIM caow how the things we notice get interpreted.3S Studies have shown that racial schemas operate not only as part of conscious, rational deliberations, but also automaticallywwithout conscious awareness or intent.36 One study, for example, involved a video game that placed photographs of white and black individuals holding either a gun or other object (such as a wallet, soda can, or cell phone) into various photographic backgrounds. Participants were told to decide as quickly as possible whether to shoot the target. Consistent with earlier studies, participants were more likely to mistake a black target as armed when he was not, and mistake a white target as unarmed, when in fact he was armed.37 This pattern of discrimination reflected automatic, un- conscious thought processes, not careful deliberations. Most striking, perhaps, is the overwhelming evidence that implicit bias [measures are disassociated from explicit bias measures.38 In other words, the fact that you may honestly believe that you are not biased against African Americans, and that you may even have black friends or relatives, does not mean that you are free from unconscious bias. Implicit bias tests may still show that you hold negative attitudes and stereotypes about blacks, even though you do not believe you do and do not want to.39 In the study de- scribed above, for example, black participants showed an amount of "shooter bias” similar to that shown by whites.40 Not surprisingly, people- who have the greatest explicit bias (as measured by self-reported answers to survey questions) against a racial. group tend also to have the greatest implicit bias against them, and vice versa.41 Yet there is often a weak correlation between degrees of explicit and implicit bias; many people who think they are not bi- ased prove when tested to have relatively high levels of bias.42 Unfortunately, a fairly consistent finding is that punitiveness and hostility almost always in- crease when people are primedfleven subliminally_with images or verbal cues associated with African Americans. In fact, studies indicate that people pl become increasingly harsh when an alleged criminal is darker and more , :‘stereotypically black”; they are more lenient when the accused is lighter and appears more stereotypically white. This is true of jurors as Well as law enforcement officers.43 Viewed as a whole, the relevant research by cognitive and social psycholo- gists to date suggests that racial bias in the drug war was inevitable, once a public consensus was constructed by political and media elites that drug L crime is black and brown. Once blackness and crime, especially drug crime, THE COLOR OF JUSTICE 105 became conflated in the public consciousness, the “criminalblackman,” as termed by legal scholar Kathryn Russell, would inevitably become the pri- mary target of law enforcement.44 Some discrimination would be conscious and deliberate, as many honestly and consciously would believe that black men deserve extra scrutiny and harsher treatment. Much racial bias, though, would operate unconsciously and automatically—even among law enforce ment officials genuinely committed to equal treatment under the law. Whether or not one believes racial discrimination in the drug war was in- evitable, it should have been glaringly obvious in the 19805 and i990s that an extraordinarily high risk of racial bias in the administration of criminal justice was present, given the way in which all crime had been framed in the media and in political discourse. Awareness of this risk did not require inti- mate familiarity with cognitive bias research. Anyone possessing a television set during this period would likely have had some awareness of the extent to which black men had been demonized in the War on Drugs. The risk that African Americans would be unfairly targeted should have been of special concern to the U.S. Supreme Court-the one branch of gov- ernment charged with the responsibility of protecting "discrete and insular minorities” from the excesses of majoritarian democracy, and guaranteeing conJ stitutional rights for groups deemed unpopular or subject to prejudice.45 Yet when the time came for the Supreme Court to devise the legal rules that would govern the War on Drugs, the Court adopted rules that would WimiZEA—“Il, not minimize—the amount of racial discrimination that would likely occur. . It then closed the courthouse doors to claims of racial bias. Wren v. United States is a case in point. As noted in chapter 2, the Court held in Whren that 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. 30 long as a minor traffic violation—such as failing to use a turn signal, exceeding the speed limit by a mile or two, tracking improperly between the lines, or stop- ping on a pedestrian walkway—can be identified, police are free to stop mo— torists for the purpose of engaging in a fishing expedition for drugs. Such police conduct, the Court concluded, does not violate the Fourth Amend- ment’s ban on “unreasonable searches and seizures.”46 For good reason, the petitioners in III/bran argued that granting police offi- cers such broad discretion to investigate virtually anyone for drug crimes 106 THE NEW JIM CROW created a high risk that police would exercise their discretion in a racially discriminatory manner. With no requirement that any evidence of drug ac- tivity actually be present before launching a drug investigation, police offi— cers’ snap judgments regarding who seems like a drug criminal would likely be influenced by prevailing racial stereotypes and bias. They urged the Court ‘ to prohibit the police from stopping motorists for the purpose of drug inves tigations unless the officers actually had reasOH to believe a motoristhwas committing, or had committed, a drug crime. Failing to do so, they argued, was unreasonable under the Fourth Amendment and would expose African Americans to a high risk of discriminatory stops and searches. Not only did the Court reject the petitioners' centrai claim—that using traffic stops as a pretext for drug investigations is unconstitutional—wit ruled that claims of racial bias could not be brought under the Fourth Amend— ment. In other words, the Court barred any victim of race discrimination by r the police from even alleging a claim ofmcinl bias under the Fourth Amend- ment. According to the Court, whether or not police discriminate on the basis of race when making traffic stops is irrelevant to a consideration of whether their conduct is “reasonable” under the Fourth Amendment. The Court did offer one caveat, however. It indicated that victims of race discrimination could still state a claim under the equal protection clause of ~ the Fourteenth Amendment, which guarantees “equal treatment under the i laws." This suggestion may have been reassuring to those unfamiliar with the Court’s equal protection jurisprudence. But for those who have actually tried to prove race discrimination under the Fourteenth Amendment, the Court's remark amounted to cruel irony. As we shall see below, the Supreme - Court has made it virtually impossible to challenge racial bias in the crimi- nal justice system under the Fourteenth Amendment, and it has barred liti- gation of such claims under federal civil rights laws as well. 1 Closing the Courthouse Doors—McCleskey v. Kemp First, consider sentencing. In 1987, when media hysteria regarding black drug crime was at fever pitch and the evening news was saturated with im- ages of black criminals shackled in courtrooms, the Supreme Court ruled in McClesleey v. Kemp that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the Fourteenth THE COLOR or JUSTICE 107 Amendment in the absence of clear evidence of conscious, discriminatory intent. On its face, the case appeared to be a straightforward challenge to Georgia’s death penalty scheme. Once the Court’s opinion was released, however, it became clear the case was about much more than the death penalty. The real issue at hand was whetheriand to what extent—the Su-"I preme Court would tolerate racial bias in the criminal justice system as a, whole. The Court’s answer was that racial bias would be toleratedwvirtually to any degree—so long as no one admitted it. } Warren McCleskey was a black man facing the death penalty for killing a white police officer during an armed robbery in Georgia. Represented by the NAACP Legal Defense and Education Fund, McCleskey challenged his death sentence on the grounds that Georgia’s death penalty scheme was in- fected with racial bias and thus violated the Fourteenth and Eighth Amend— ments. In support of his claim, he offered an exhaustive study of more than two thousand murder cases in Georgia. The study was known as the Baldus study—named after Professor David Baldus, who was its lead author. The study found that defendants charged with killing white victims received the death penalty eleven times more often than defendants charged with killing black victims. Georgia prosecutors seemed largely to blame for the disparity; they sought the death penalty in 70 percent of cases involving black defen— ' dants and white victims, but only 19 percent of cases involving white defen- _ dents and black victims.47 Sensitive to the fact that numerous factors besides race can influence the decision making of prosecutors, judges, and juries, Baldus and his colleagues subjected the raw data to highly sophisticated statistical analysis to see if nonracial factors might explain the disparities. Yet even after accounting for? thirty—five nonracial variables, the researchers found that defendants charged)... with killing white victims were 4.3 times more likely to receive a death sensl _' tence than defendants charged with killing blacks. Black defendants, like McCleskey, who killed white victims had the highest chance of being sen- tenced to death in Georgia.48 The case was closely watched by criminal lawyers and civil rights lawyers nationwide. The statistical evidence of discrimination that Baldus had devel— oped was the strongest ever presented to a court regarding race and criminal sentencing. if McCleskey's evidence was not enough to prove discrimina- tion in the absence of some kind of racist utterance, what would be? By a one-vote margin, the Court rejected McCleskey’s claims under the 108 THE NEW jIM caow Fourteenth Amendment, insisting that unless McCleskey could prove that the prosecutor in his particular case had sought the death penalty because ' of race or that the jury had imposed it for racial reasons, the statistical evi« dence of race discrimination in Georgia’s death penalty system did not prove unequal treatment under the law. The Court accepted the statistical evi- dence as valid but insisted that evidence of conscious, racial bias in Me- Cleskey's individual case was necessary to prove unlawful discrimination. In the absence of such evidence, patterns of discrimination—even patterns as shocking as demonstrated by the Baldus study—did not violate the Four— teenth Amendment. in erecting this high standard, the Court knew fuli well that the standard could not be met absent an admission that a prosecutor or judge acted be- cause of racial bias. The majority opinion openly acknowledged that long" T standing ruies generaily bar litigants from obtaining discovery from the I prosecution regarding charging patterns and motives, and that similar rules ‘. forbid introduction of evidence of jury deliberations even when a juror has ' chosen to make deliberations public.“9 The very evidence that the Court de— manded in McClesltey—evidence of deliberate bias in his individual case— would almost always be___unavailab_le and/or inadmissible-due to procedural rules that shield jurors and prosecutors from scrutiny. This dilemma was of ittie concern to the Court. It closed the courthouse doors to claims of racial fines in sentencing. I There is good reason to believe that, despite appearances, the McCleskey g decision was not really about the death penalty at all; rather, the Court’s , opinion was driven by a desire to immunize the entire criminal justicesys- 2' tern from claims of racial bias. The best evidence in support of this view can be found at the end of the majority opinion where the Court states that dis- cretion plays a neccessary role in the implementation of the criminal justice system, and that discrimination is an inevitable by—product of discretion. —— Racial discrimination, the Court seemed to suggest, was something that simply must be tolerated in the criminal justice system, provided no one ad» mits to racial bias. The majority observed that significant racial disparities had been found in other criminal settings beyond the death penalty, and that McCleskey’s case implicitly calls into question the integrity of the entire system. In the Court's words: "Taken to its logical conclusion, Warren McCleskey’s claim] throws THE COLOR or JUSTICE 109 into serious question the principles that underlie our criminal justice sys- tem. . . . [Hf we accepted McCleskey’s claim that racial bias has impermis- sibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.”50 The Court openly worried that other actors in the criminal justice system might also face scrunity for alleg- edly biased decision-making if similar claims of racial bias in the system were allowed to proceed. Driven by these concerns, the Court rejected McCleskey’s claim that Georgia’s death penalty system violates the Eighth ,I Amendment’s ban on arbitrary punishment, framing the critical question as whether the Baldus study demonstrated a "constitutionally unacceptable risk” of discrimination. Its answer was no. The Court deemed the risk of racial bias in Georgia's capital sentencing scheme “constitutionally accept able." justice Brennan pointedly noted in his dissent that the Court’s opin- ion “seems ‘to suggest a fear of too much justice.”51 Cracked Up—Discriminatory Sentencing in the War on Drugs Anyone who doubts the devastating impact of McCleskey v. Kemp on African American defendants throughout the criminal justice system, including those ensnared by the War on Drugs, need only ask Edward Clary. Two months after his eighteenth birthday, Clary was stopped and searched in the St. Louis airport because he "looked like" a drug courier. At the time, he was returning home from visiting some friends in California. One of them perm suaded him to take some drugs back home to St. Louis. Clary had never at- tempted to deal drugs before, and he had no criminal record. During the search, the police found crack cocaine and promptly arrested him. He was convicted in federal court and sentenced under federal laws that punish crack offenses one hundred times more severely than offenses involving powder cocaine. A conviction for the sale of five hundred grams of . powder cocaine triggers a fiveayear mandatory sentence, while only five grams of crack triggers the same sentence. Because Clary had been caught with more than fifty grams of crach {less than two ounces), the sentencing judge believed he had no choice but to sentence him~+an eighteenuyearuold, first—time offenderéto a minimum of ten years in federal prison. Clary, like defendants in other crack cases, challenged the constitution- 110 THE NEW JIM CROW ality of the hundred-to—one ratio. His lawyers argued that the law is arbitrary and irrational, because it imposes such vastly different penalties on two forms of the same substance. They also argued that the law discriminates against African Americans, because the majority of those charged with crimes involving crack at that time were black (approximately 93 percent of convicted crack offenders were black, 5 percent were white), whereas pow- der cocaine offenders were predominantly white. , Every federal appellate court to have considered these claims had rejected them on the ground that Congressvrightly or wrongly—believed that crack L was more dangerous to society, a view supported by the testimony of some drugrabuse “experts” and police officers. The fact that most of the evidence in support of any disparity had since been discredited was deemed irreleu vant; what mattered was whether the law had seemed rational at the time it was adopted. Congress, the courts concluded, is free to amend the law if circumstances have changed. ‘ Courts also had rejected claims that crack sentencing laws were racially discriminatory, largely on the ground that the Supreme Court’s decision in McCleslzey v. Kemp precluded such a result. in the years following McCles— THE COLOR or JUSTICE . 11] young black male as a criminal. "The presumption of innocence is now a legal myth," he declared. r‘The lOO-to-l ratio, coupled with mandatory mini— mum sentencing provided by federal statute, has created a situation that ; reeks with inhumanity and injustice. . . . If young white males were being incarcerated at the same rate as young black males, the statute would have ,l been amended long ago.” judge Cahill sentenced Clary as if the drug he had carried home had been powder cocaine. The sentence imposed was four years in prison. Clary served his term and was released. The prosecution appealed Clary’s case to the Eighth Circuit Court of Ap- peals, which reversed judge Cahill in a unanimous opinion, finding that the case was not even close. In the court’s view, there was no credible evidence that the crack penalties were motivated by any conscious racial bigotry, as required by McCleskey v. Kemp. The court remanded the case back to the '1 a district court for resentencing. Claryfinow married and a fatherwwas or— ‘- dered back to prison to complete his ten-year term.53 Few challenges to sentencing schemes, patterns, or results have been brought since McCleskey, for the exercise is plainly futile. Yet in 1995, a few brave souls challenged the implementation of Georgia’s “two strikes andil L, { key, lower courts consistently rejected claims of race discrimination in the you’re out" sentencing scheme, which imposes life imprisonment for a second I criminal justice system, finding that gross racial disparities do not merit drug offense. Georgia’s district attorneys, who have unbridled discretion to strict scrutiny in the absence of evidence of explicit race discrimination—m decide whether to seek this harsh penalty, had invoked it against only i percent—'1. ii. the very evidence unavailable in the era of colorblindness. of white defendants facing a second drug conviction but against 16 percent of_i [p Judge Clyde Cahill of the Federal District of Missouri, an African Ameri- { tr black defendants. The result was that 98.4 percent of those serving life sen’ v can judge assigned Clary's case, boldly challenged the prevailing view that courts are powerless to address forms of race discrimination that are not overtly hostile. Cahill declared the hundred-to-one ratio racially discrimina— tory in violation of the Fourteenth Amendment, notwithstanding McCles- key/.52 Although no admissions of racial bias or racist intent could be found in the record, Judge Cahill believed race was undeniably a factor in the crack sentencing laws and policies. He traced the history of the get-tough \ movement and concluded that fear coupled with unconscious racism had led to a lynch-mob mentality and a desire to control crimegand those deemed responsible for itkat any cost. Cahill acknowledged that many people may not believe they are motivated by discriminatory attitudes but argued that we all have internalized fear of young black men, a fear rein- forced by media imagery that has helped to create a national image of the tences under the provision were black. The Georgia Supreme Court ruled, _ by a 4—3 vote, that the stark racial disparity presented a threshold case of discrimination and required the prosecutors to offer a race—neutral explana—j tion for the results. Rather than offer a justification, however, the Georgia attorney general filed a petition for rehearing signed by every one of theil‘ state’s forty-six district attorneys, all of whom were white. The petition ar-/ gued that the—'Court’s decision was a' diré'ifir’siaké'; if the decision were allowed to stand and prosecutors were compelled to eXplain gross racial dis~ parities such as the ones at issue, it would be a "substantial step toward invalidating" the death penalty and would "paralyze the criminal justice system”—apparently because severe and inexplicable racial disparities per- vaded the system as a whole. Thirteen days later, the Georgia Supreme E Court reversed itself, holding that the fact that 98.4 percent of the defen- / 112 THE NEW JIM cnow dants selected to receive life sentences for repeat drug offenses were black required no justification. The court’s new decision relied almost exclusively on McCleskey v. Kemp. To date, not a single successful challenge has ever been made to racial bias in sentencing under McCleskey v. Kemp anywhere in the United States. Charging Ahead_Armstrong v. United States If sentencing were the only stage of the criminal justice process in which ra- cial biases were allowed to flourish, it would be a tragedy of gargantuan pro— portions. Thousands of people have had years of their lives wasted in prison—wears they would have been free if they had been white. Some, like McCleskey, have been killed because of the influence of race in the death penalty Sentencing, however, is not the end, but gust the beginning. As we shall see, the legal rules governing prosecutions, like those that govern sen- tencing decisions, maximize rather than minimize racial bias in the drug war. The Supreme Court has gone to great lengths to ensure that prosecutors are free to exercise their discretion in any manner they choose, and it has closed ' I the courthouse doors to claims of racial bias. As discussed in chapter 2, no one has more power in the criminal justice «‘ system than prosecutors. Few rules constrain the exercise of prosecutorial discretion. The prosecutor is free to dismiss a case for any reason or no rea- son at all, regardless of the strength of the evidence. The prosecutor is also free to file more charges against a defendant than can realistically be proven in court, so long as probable cause arguably exists. Whether a good plea deal is offered to a defendant is entirely up to the prosecutor. And if the mood strikes, the prosecutor can transfer drug defendants to the federal system, where the penalties are far more severe. Juveniles, for their part, can be transferred to adult court, where they can be sent to adult prison. Angela J. Davis, in her authoritative study Arbitrary Justice: The Powar of the Ameri— can Prosecutor, observes that “the most remarkable feature of these impor- tant, sometimes life-and-death decisions is that they are totally discretionary and virtually unreviewable.”S4 Most prosecutors' offices lack any manual or guidebook advising prosecutors how to make discretionary decisions. Even the American Bar Association’s standards of practice for prosecutors are THE cocoa or JUSTICE 113 purely aspirational; no prosecutor is required to follow the standards or even consider them. Christopher Lee Armstrong learned the hard way that the Supreme Court has little interest in ensuring that prosecutors exercise their extraordinary i discretion in a manner that is fair and nondiscriminatory. He, along with- four of his companions, was staying at a Los Angeles motel in April 1992 when federal and state agents on a joint drug crime task force raided their room and arrested them on federal drug chargesmconspiracy to distribute more than fifty grams of crack cocaine. The federal public defenders as‘ signed to Armstrong's case were disturbed by the fact that Armstrong and his friends had something in common with every other crack defendant their office had represented during the past the past year: they were all black. In fact, of the fiftyuthree crack cases their office had handled over the prior three years, fortyreight defendants were black, five were Hispanic, and not ah" singie one was white. Armstrong’s lawyers found it puzzling that no white 2 crack offenders had been charged, given that most crack offenders are white. They suspected that whites were being diverted by federal prosecutors to the state system, where the penalties for crack offenses were far less severe. The only way to prove this, though, would be to gain access to the prosecu— tors' records and find out just how many white defendants were transferred 5 to the state system and why. Armstrong’s lawyers thus filed a motion asking ' the district court for discovery of the prosecutors’ files to support their claim of selective prosecution under the Fourteenth Amendment. Supreme Court had recognized that racially selective enfpircernent" violates Nearly one hundred years earlier, in a case called Yicle W'o 1). Hopkins, the til it}: equal protection of the laws. In that case, decided the Court unani~ mously overturned convictions of two Chinese men who were operating laundries without a license. San Francisco had denied licenses to all Chi» . nese applicants, but granted licenses to all but one of the non—Chinese laun- dry operators who applied. Law enforcement arrested more than a hundred people for operating laundries without licenses, and every one of the arrest— ees was Chinese. OVerturning Yick Wo’s conviction, the Supreme Court declared in a widely quoted passage, ‘Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegai discriminations, between persons in similar circum- (I ,. 114 THE NEWJIM cnow stances . . . the denial of equal justice is still within the prohibition of the Constitution.”55 Armstrong’s lawyers sought to prove that, like the law at is— sue in Yick W0, federal crack laws were fair on their face and impartial in their appearance, but were selectively enforced in a racially discriminatory .L manner. In support of their claim that Armstrong should, at the very least, be enti- tled to discovery, Armstrong’s lawyers offered two sworn affidavits. One was from a halfway house intake coordinator who testified that, in his experience treating crack addicts, whites and blacks dealt and used the drugs in similar proportions. The other affidavit was from a defense attorney who had exten- sive experience in state prosecutions He testified that nonblack defendants were routinely prosecuted in state, rather than federal, court. Arguably the best evidence in support of Armstrong’s claims came from the government, which submitted a list of more than two thousand people charged with fed" r eral crack cocaine violations over a three-year period, all but eleven of whom I were black. None were white. The district court ruled that the evidence presented was sufficient to jus— tify discovery for the purposes of determining whether the allegations of se— lective enforcement were valid. The prosecutors, however, refused to release If any records and appealed the issue all the way to the US. Supreme Court. 1 i- even to discovery on his selective-prosecution claim. With no trace of irony, In May 1996, the Supreme Court reversed. As in McCleskey, the Court did not question the accuracy of the evidence submitted, but ruled that because -‘ Armstrong failed to identify any similarly situated white defendants who should have been charged in federal court but were not, he was not entitled the Court demanded that Armstrong produce in advance the very thing he ' sought in discovery: information regarding white defendants who should i. have been charged in federal court. That information, of course, was in the prosecution’s possession and control, which is why Armstrong filed a discov- ery motion in the first place. As a result of the Armstmng decision, defendants who suspect racial bias on the part of prosecutors are trapped in a classic catche22. In order to state a claim of selective prosecution, they are required to offer in advance the very evidence that generally can be obtained only through discovery of the prose— cutor’s files. The Court justified this insurmountable hurdle on the grounds that considerable deference is owed the exercise of prosecutorial discretion. Unless evidence of conscious, intentional bias on the part of the prosecutor THE COLOR or JUSTICE 115 could be produced, the Court would not allow any inquiry into the reasons for or causes of apparent racial disparities in prosecutorial decision making. Again the courthouse doors were closed, for all practical purposes, to claims of racial bias in the administration of the criminal justice system. Immunizing prosecutors from claims of racial bias and failing to impose any meaningful Check on the exercise of their discretion in charging, plea bargaining, transferring cases, and sentencing has created an environment in which conscious and unconscious biases are allowed to flourish. Numer- ous studies have shown that prosecutors interpret and respond to identical criminal activity differently based the offender.56 One widely cited study, was conducted by the Sam lose Mercury News. The study re- viewed 700,000 criminal cases that were matched by crime and criminal history of the defendant. The analysis revealed that similarly situated whites were far more successz than African Americans and Latinos in the plea bargaining process; in fact, "at virtually every stage of pretrial negotiation, whites are more successful than nonwhites.”S7 I} The most comprehensive studies of racial bias in the exercise of prosecm tonal and judicial discretion involve the treatment of juveniles. These stud- 7;. ies have shown that youth of color are more likely to be arrested, detained, formally charged, transferred to adult court, and confined to secure residen- rial facilities than their white counterparts.58 A report in 2000 observed that among youth who have never been sent to a juvenile prison before, African Americans were more than six times as likely as whites to be sentenced to 7 i . prison for identical crimes.59 A study sponsored by the US. justice Depart- ment and several of the nation’s leading foundations, published in 2007, found that the impact of the biased treatment is magnified with each addi- tional step into the criminal justice system. African American youth account for 16 percent of all youth, 28 percent of all juvenile arrests, 35 percent of the youth waived to adult criminal court, and 58 percent of youth admitted to state adult prison.60 A major reason for these disparities is unconscious and conscious racial biases infecting decision making. In the state of Wash- ington, for example, a review of juvenile sentencing reports found that pros— ecutors routinely described black and white offenders differently.61 Blacks committed crimes because of internal personality flaws such as disrespect. Whites did so because of external conditions such as family conflict. The risk that prosecutorial discretion will be racially biased is especially acute in the drug enforcement context, where virtually identical behavior is 7l 116 THE New JIM caow susceptible to a wide variety of interpretations and responses and the media imagery and political discourse has been so thoroughly racialized. Whether a kid is perceived as a dangerous drugrdealing thug or instead is viewed as a good kid who was merely experimenting with drugs and selling to a few of his friends has to do with the ways in which information about illegal drug activity is processed and interpreted, in a social climate in which drug deal— ing is racially defined. As a former US. Attorney eimlained: i had an {assistant US. attorney who] wanted to drop the gun charge against the defendant [in a case in which] there were no extenuating circumstances. I asked, “Why do you want to drop the gun offense?” And he said, "‘He’s a rural guy and grew up on a farm. The gun he had with him was a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles, and it’s not like he was a gun—toting drug dealer." But he was a gun toting drug dealer, exactly. The decision in Armstrong effectively shields this type of biased decision making from judicial scrutiny for racial bias. Prosecutors are well aware that the exercise of their discretion is unchecked, provided no ewlicitly racist reg marks are made, as it is next to impossible for defendants to prove racial bias. It is difficult to imagine a system better designed to ensure that racial biases and stereotypes are given free reign—while at the same time appear- ing on the surface to be colorblind——than the one devised by the US. Su— preme Court. In Defense of the All-White jury—Parked 1). Him The rules governing jury selection provide yet another illustration of the Court’s complete abdication of its responsibility to guarantee racial minorities \ equal treatment under the law. In 1985, in Batson 17. Kentucky, the Court 7 held that the Fourteenth Amendment prohibits prosecutors from discrimi— nating on the basis of race when selecting juries, a ruling hailed as an impor- tant safeguard against all-white juries locking up African Americans based on racial biases and stereotypes. Prior to Batson, prosecutors had been al- lowed to strike blacks from juries, provided they did not always strike black THE COLOR OF warren 11? jurors. The Supreme Court had ruled in 1965, in Swain a Alabama, that an equal-protection claim would arise only if a defendant could prove that a prosecutor struck African American jurors in every case, regardless of the crime involved or regardless of the races of the defendant or the victim.62 Two decades later, in Batson, the Supreme Court reversed course, a nod to the newly minted public consensusrthat explicit racediscrimination is an affront to American values. Almost immediately after Batson was decided, however, it became readily apparent that prosecutors had no difficulty circumventing the formal requirement of colorblindness in jury selection by means of a form of subterfuge the Court would come to accept, if not endorse. a The history race-discrimination in jury selection dates back to slaveryl Until 1860, no black person had ever sat on a jury in the United States. Dur— ing the Reconstruction era, African Americans began to serve on juries in the South for the first time. The all~white jury promptly returned, however, when Democratic conservatives sought to “redeem” the South by stripping blacks of'their right to vote and their right to serve on juries. In 1880, the Supreme Court intervened, striking down a West Virginia statute that ex- pressly reserved jury service to white men. Citing the recently enacted Four- teenth Amendment, the Court declared that the exclusion of blacks from jury service was "practically a brand upon them, affixed by law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impedi- ment to . . . equal justice."63 The Court asked, “How can it be maintained that compelling a colored man to submit to a trial for his fife by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of his color alone, however well qualified in other respects, is not a denial to him of equal protection?”64 For all its bluster, the Court offered no meaningful protection against jury discrimination in the years that followed. As legal scholar Benno Schmidt has observed, from the end of Reconstruction through the New Deal, r‘the systematic exclusion of black menfrom Southern juries was about as plain as any legal discrimination could be short of proclamation in state statutes or confession by state officials.”*55 The Supreme Court repeatedly upheld convictions of black defendants by all-white juries in situations where exclusion of black jurors was obviousf’6 The only case in which the Court overturned a conviction on the grounds of discrimination in jury selection was Neal 12. Delaware, a case decided in 1935. State law in Delaware once \‘M 118 THE NEW JIM CROW THE. COLOR 0F jUSTICE 119,-" had e licitl restricted 'u service to White men, and "no colored citizen because eo le of color are si niflcantl less likel to own cars or re 'ster to XP Y .l W l) P g y Y 9 had ever been summoned as a juror.”67 The Delaware Supreme Court had vote. Making matters worse, thirty-one states and the federal government rejected Neal’s equal protection claim on the ground that “the great body of . subscribe to the practice of lifetime felon exclusion from juries. As a result, 7' black men residing in this State are utterly unqualified [for jury service] by about 30 percent of black men are automatically harmed from jury service for want of intelligence, experience, or moral integrity."68 The Supreme Court life.“ Accordingly, no more than a handful of strikes are necessary in many reversed. Clearly, what offended the U.S. Supreme Court was not the exclu- cases to eliminate all or nearly all black jurors. The practice of systematically {Slim 0f blaCkS from jury SBI’VlCE Per 56, bUt father Cit}ng SO OPGHIY and explic- " ' excluding black jurors has not been halted by Batson; the only thing that has itly. That orientation continues to hold today. changed is that prosecutors must come up with a race-neutral excuse for the / Notwithstanding Batson’s formal prohibition on race discrimination in strikesman exceedingly easy task. < jury selection, the Supreme Court and lower federal courts have toleratedgall In fact, one comprehensive study reviewed all published decisions involv- but the most egregious examples of racial bias in jury selection. Miller El ing Bataan challenges from 1986 to 1992 and concluded that prosecutors al— Cocktail was such a case.69 That case involved a jury-selection manual that most never fail to successfully craft acceptable race-neutral explanations to" sanctioned race-based selection. The Court noted that it was unclear justify striking black jurors.72 Courts accept explanations that jurors are too 9 Whether the Official POHCY 0f race-based GXClLlSiOII W85 Still in Effect, but the yonng, too old, too conservative, too liberal, too comfortable, or too uncom- PI’OSBCUtiOH did in faCt exclude ten 0f GlEVen blaijUl’OI’S, in Part by emPlOYr fortable. Clothing is also favorite reason; jurors have been stricken for wear- in an unusual ractice of “'u shufflin ” that reduced the number of black in hats or sun lasses. Even ex lanations that mi ht correlate with race, a p ,J___ry s a a P s jurors.7U The prosecution also engaged in disparate questioning of jurors such as lack of education, unemployment, poverty, being single, living in the based on race—practices that seemed linked to the jury—selection manual. same neighborhood as the defendant, or prior involvement with the criminal - This was a highly unusual case. In typical cases, there are no official policies justice systemmhave all been accepted as perfectly good, non-pretextual / authorizing race discrimination in jury selection still lurking around, argu— excuses for striking African Americans from juries. As professor Sheri Lynn ably in effect. Normally, the discrimination is obvious yet unstated, and the johnson once remarked, "If prosecutors exist who . . . cannot create a ‘ra- systematic exclusion of black jurors continues largely unabated through use cially neutral’ reason for discriminating on the basis of race, bar exams are of the peremptory strike. me flashW3 Peremptory strikes have long been controversial. Both prosecutors and Given how flagrantly prosecutors were violating Batson’s ban on race dis— defense attorneys are permitted to strike “peremptorily” jurors they don’t crimination in jury selection, it was reasonable to hope that, if presented like—that is, people they believe will not respond favorably to the evidence with a particularly repugnant case, the Supreme Court might be willing to or witnesses they intend to present at trial. In theory, peremptory strikes may draw the line at practices that make a mockery of the antidiscrimination increase the fairness of the proceeding by eliminating jurors who may be bi— principle. Granted, the Court had been unwilling to accept statistical proof I ased but whose biases cannot be demonstrated convincingly to a judge. In of race discrimination in sentencing in McCleslcey, and it had brushed off i Practice. however, peremptory Challenges are notoriously discriminatory. Law- concerns of racial bias in discretionary police stops in Whren, and it had i yers typically have little information about potential jurors, so their decisions granted virtual immunity to prosecutors in their charging decisions in Arm- 1, to strike individual jurors tend to be based on nothing more than stereo— strong, but would it go so far as to allow prosecutors to offer blatantly absurd, C H .H types, prejudices, and hunches. Achieving an all-white jury, or nearly all- dowuright laughable excuses for striking blacks from juries? It turns out the white jury, is easy in most jurisdictions, because relatively few racial answer was yes. minorities are included in the jury pool. Potential jurors are typically called In Purkett 12. Elm, in 1995, the Supreme Court ruled that any race-neutral ‘; r - - - . . . . . . . l L for servrce based on the list of registered voters or Department of Motor Ve— reason, no matter how Sllly, rldlculous, or superstitlous, is enough to satisfy ;‘ hicle listsmsources that contain disproportionately fewer people of color, the prosecutor’s burden of showing that a pattern of striking a particular ra— I 120 THE NEW JIM oaow cial group is not, in fact, based on race. In that case, the prosecutor offered the following explanation to justify his strikes of black jurors: I struck [juror] number twenty—two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared not to be a good juror for that fact. . . .Also, he had a mustache and a goatee type beard. And juror number twenty-four also had a mustache and goatee type beard. . . . And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me?4 The Court of Appeals for the Eighth Circuit ruled that the foregoing ex- planation for the prosecutor's strikes of black jurors was insufficient and should have been rejected by the trial court because long hair and facial hair are not plausibly related to a person’s ability topperform as a juror. The appel- late court explained: ‘Where the prosecution strikes a prospective juror who is a member of the defendant’s racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is quali- fied to serve as a juror in the particular case, the prosecution must at least articulate some plausible race neutral reason for believing that those factors will somehow affect the person’s ability to perform his or her duties as a juror.”75 The US. Supreme Court reversed, holding that when a pattern of race- based strikes has been identified by the defense, the prosecutor need not I provide "an explanation that is persuasive, or even plausible.”76 Once the ' reason is offered, a trial judge may choose to believe (or disbelieve) any "silly ‘ or superstitious" reason offered by prosecutors to explain a pattern of strikes that appear to be based on race.” The Court sent a clear message that ap- pellate courts are largely free to accept the reasons offered by a prosecutor for excluding prospective black jurors—no matter how irrational or absurd the reasons may seem. The Occupation—Policing the Enemy The Court’s blind eye to race discrimination in the criminal justice system has been especially problematic in Racial bias is most acute at the THE COLOR or JUSTICE 121 point of entry into the system for two reasons: discretion and authorization. Although prosecutors, as a group, have the greatest power in the criminal jus- j tice system, police have thggreatgsg discretion—discretion that is amplified l ;___m____,____, ,fl.__......_m_ in drug-law enforcement. And unbeknownst to the general public, the Su- preme Court has actually authorized race discrimination in policing, rather than adopting legal rules banning it. Racially biased police discretion is key to understanding how the over- whelming majority of people who get svvept into the criminal justice system in the War on Drugs turn out to be black or brown, even though the police adamantly deny that they engage in racial profiling. In the drug war, police have discretion regarding whom to target (which individuals), as well as where to target (which neighborhoods or communities). As noted earlier, at least 10 percent of Americans violate drug laws every year, and people of all races engage in illegal drug activity at similar rates. With such an extraor— ,1 dinarily large population of offenders to choose from, decisions must be made regarding who should be targeted and where the drug war should be waged. From the outset, the drug war could have been waged primarily in over- whelmingly white suburbs or on college campuses. SWAT teams could have rappelled from helicopters in gated suburban communities and raided the “ homes of high school lacrosse players known for hosting coke and ecstasy -4 parties after their games. The police could have seized televisions, furniture, and cash from fraternity houses based on an anonymous tip that a few joints or a stash of cocaine could be found hidden in someone’s dresser drawer. 7 Suburban homemakers could have been placed under surveillance and sub- jected to undercover operations designed to catch them violating laws regulating the use and sale of prescription “uppers.” All of this could have happened as a matter of routine in White communities, but it did not. Instead, when police go looking for drugs, they look in the Ihood. Tactics that would be political suicide in an upscale white suburb are not even} newsworthy in poor black and brown communities. So long as mass drug ar— rests are concentrated in impoverished urban areas, police chiefs have little} ‘ reason to fear a political backlash, no matter how aggressive and warlike the _, efforts may be. And so long as the number of drug arrests increases or at least remains high, federal dollars continue to flow in and fill the depart— ment’s coffers. As one former prosecutor put it, "It’s a lot easier to go out to the ’hood, so to speak, and pick somebody than to put your resources in an 122 THE new JIM cnow THE COLOR or jUSTICE 123 undercover [operation in a] community where there are potentially politi- public housing project and stopped the car, every young black man in the (331131 PowerfUl People-"78 area would almost reflexiver place his hands up against the car and spread l w The hypersegregation of the black poor in ghetto communities has made his legs to be searched. And the officers would search them. The officers would then get back in the car and stop in another project, and this would the roundupneasyflCo-nfined"to ghetto a‘reas‘ahd' lacking polit—icfipoWer, the black poor are convenient targets. Douglas Massey and Nancy Denton’s happen again. This repeated itself throughout the entire day. I couldn’t be— book, American Apartheid, documents how racially segregated ghettos were lieve it. This was nothing like we iearned in law school. But it just seemed ,s. deliberately created by federal policy, not impersonal market forces or pria so normal—for the police and the young men.” r vate housing choices.79 The enduring racial isolation of the ghetto poor has Numerous scholars (and many law enforcement officials) attempt to jus- made them uniquely vulnerable in the War on Drug—s." What happens to tify the concentration of drug law enforcement resources in ghetto commu- them does not directly affect—and is scarcely noticed by—the privileged nities on the ground that it is easier for the police to combat illegal drug beyond the ghetto’s invisible walls. Thus it is here, in the poverty-stricken, activity there. The theory is that black and Latino drug users are more likely racially segregated ghettos, where the War on Poverty has been abandoned than white users to obtain illegal drugs in public spaces that are visible to '- and factories have disappeared, that the drug war has been waged with the the police, and therefore it is more efficient and convenient for the police to greatest ferocity. SWAT teams are deployed here; buy-and-bust operations concentrate their efforts on open-air drug markets in ghetto communities. ,— are concentrated here; drug raids of apartment buildings occur here; stop- Sociologists have been major proponents of this line of reasoning, pointing and-frisk operations occur on the streets here. Black and brown youth are out that differential access to private space influences the likelihood that " the primary targets. It is not uncommon for a young black teenager living in criminai behavior will be detected. Because poor people lack access to pri- a ghetto community to be stopped, interrogated, and frisked numerous times vate space (often sharing small apartments with numerous family members in the course of a month, or even a single week, often by paramilitary units. or relatives), their criminal activity is more likely to be conducted outdoors. Studies of racial profiling typically report the total number of people stopped Concentrating law enforcement efforts in locations where drug activity will and searched, disaggregated by race. These studies have led some policing be more easily detected is viewed as a race-neutral organizational necessity. experts to conclude that racial profiling is actually “worse” in white commu- This argument is often buttressed by claims that most citizen complaints nities, because the racial disparities in stop and search rates are much about illegal drug activity come from ghetto areas, and that the violence as- w J greater there. What these studies do not reveal, however, is the frequency sociated with the drug trade occurs in inner cities. These facts, drug war de- with which any given individual is likely to be stopped in specific, racially defined neighborhoods. The militarized nature of law enforcement in ghetto communities has in- fenders claim, make the decision to wage the drug war almost exclusively in poor communities of color an easy and logical choice. This line of reasoning is weaker than it" initially appears. Many law spired rap artists and black youth to refer to the police presence in black enforcement officials acknowledge that the demand for illegal drugs is {Jeommppipies as “W hchcupatioin.” In these occupied territories, many black youth automatically ‘iassume the‘position” when a patrol car pulls up, know- ing full weli that they will be detained and frisked no matter what. This dynamic often comes as a surprise to those who have spent little time in so great—end the lack of aiternative sources of income so few in'ghetto communities—that "if you take one dealer off thestreet, he’ll be replaced '7} ~' within an hour.” Many also admit that a predictable consequence of break- ’ l ing up one drug ring is a slew of violence as others fight for control of the " ghettos. Craig Futterman, a law professor at the University of Chicago, previously stabilized market.80 These realities suggestwif the past two de- reports that his students frequently express shock and dismay when they cades of endless war somehow did not—that the drug war is doomed to fail. venture into those communities for the first time and witness the distance They also call into question the legitimacy of “convenience” as an excuse for between abstract legal principles and actual practice. One student reported, the mass imprisonment of black and brown men in ghetto communities. foliowing her ride—along with Chicago police: "Each time we drove into a Even putting aside such concerns, though, recent research indicates that 124 THE NEW JIM caow the basic assumptions upon which drug war defenses typically rest are sim- ply wrong. The conventional wisdom—{hat r'get tough" tactics are a regret- I .— table necessity in poor communities of color and that efficiency requires the drug war to be waged in the most vulnerable neighborhoodsmturns out to be, as many have long suspected, nothing more than wartime propaganda, not sound policy. Unconventional Wisdom In 2002, a team of researchers at the University of Washington decided to take the defenses of the drug war seriously, by subjecting the arguments to empirical testing in a major study of drug-lawr enforcement in a racially mixed city——Seattle.81 The study found that, contrary to the prevailing “com- f' mon sense,” the high arrest rates of African Americans in drug-law enforce- . ment could not be explained by rates of offending; nor could they be explained by other standard excuses, such as the ease and efficiency of po’ licing open-air drug markets, citizen complaints, crime rates, or drug-related _ violence. The study also debunked the assumption that white drug dealers l deal indoors, making their criminal activity more difficult to detect. f The authors found that it was untrue stereotypes about crack markets, crack dealers, and crack babies———not facts—that were driving discretionary decision making by the Seattle Police Department. The facts were as fol- lows: Seattle residents were far more likely to report suspected narcotics ac; tivities in residences—not outdoors—"but police devoted their resources to open—air drug markets and to the one precinct that was least likely to be identified as the site of suspected drug activity in citizen complaints. In fact, - although hundreds of outdoor drug transactions were recorded in predomi— _ nantly White areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transacu tions was much lower. in racially mixed openaair drug markets, black dealers ‘ r were far more likely to be arrested than whites, even though white dealers were present and visible. And the department focused overwhelmingly on crack—the one drug in Seattle more likely to be sold byAfrican Americansee f despite the fact that local hospital records indicated that overdose deaths involving heroin were more numerous than all overdose deaths for crack and THE COLOR OF JUSTICE 125 powder cocaine combined. Local police acknowledged that no significant level of violence was associated with crack in Seattle and that other drugs were causing more hospitalizations, but steadfastly maintained that their deployment decisions were nondiscriminatory. The study’s authors concluded, based on their review and analysis of the empirical evidence, that the Seattle Police Department's decisions to focus so heavily on crack, to the near exclusion of other drugs, and to concentrate its efforts on outdoor drug markets in downtown areas rather than drug mar« kets located indoors or in predominantly white communities, reflect "afg- racialized conceptionmrof problem."82 As the authors put it: “[The Seattle Department’s] focus on black and Latino individuals and on the drug most strongly associated with ‘blackness’ suggest that lawrl enforcement policies and practices are predicated on the assumption tha the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.“'33 This racial- ized cultural script about who and what constitutes the drug problem ren- ders illegal drug activity by whites invisible. r‘White people,” the study’s authors observed, “are simply not perceived as drug offenders by Seattle po- lice officers.”34 Hollow Hope One might imagine that the facts described above would provide grounds for a iawsuit challenging the Seattle Police Department’s drug war tactics as a violation of the equal protection clause of the Fourteenth Amendment and demanding reform. After all, obtaining reform through the city council or most despised minority in the US. population. Few politicians will leap at state legislature may seem unlikeiy, for black “criminals” are perhaps the [Cristal the opportunity to support black people labeied criminals. Accordingly, a lawsuit may seem like the best option. The purpose of our Constitution— especiaily the Fourteenth Amendment’s equal-protection guarantee—is to protect minority rights even when, or especially when, they are unpopular. So shouldn’t African American defendants be able to file a successful law- suit demanding an end to these discriminatory practices or challenge their drug arrests on the grounds that these law enforcement practices are unlaw- u’ 126 THE NEW JIM CROW fully tainted by race? The answer is yes, they should, but no, they probably can’t. As legal scholar David Cole has observed, "The Court has imposed nearly dnsurmountable barriers to persons challenging race discrimination at all Lstages of the criminal justice system."85 The barriers are so high that few lawsuits are even filed, notwithstanding shocking and indefensible racial disparities. Procedural hurdles, such as the "standing requirement," have made it virtually impossible to seek reform of law enforcement agencies through the judicial process, even when the policies or practices at issue are illegal or plainly discriminatory Lytmis, attempt to ban the use of lethai chokeholds by the Los Angeles Police Department (LAPD) is a good example. Lyons, a twenty- four-year-old black man, was driving his car in Los Angeles one morning when he was pulled over by four police officers for a burnt-out taillight. With guns drawn, police ordered Lyons out of his car. He obeyed. The offi— cers told him to face the car, spread his legs, and put his hands on his head. Again, Lyons did as he was told. After the officers completed a pat—down, Lyons dropped his hands, prompting an officer to slam Lyons’s hands back on his head. When Lyons complained that the car keys he was holding were causing him pain, the officer forced Lyons into a chokehold. He lost con- sciousness and collapsed. When he awoke, “he was spitting up blood and dirt, had urinated and defecated, and had suffered permanent damage to his larynx.”86 The officers issued a traffic ticlcet for the burnt-out taillight and released him. Lyons sued the City of Los Angeles for violation of his constitutional rights and sought, as a remedy, a ban against future use of the chokehoids. By the time his case reached the Supreme Court, sixteen people had been killed by police use of the chokehold, twelve of them black men. The Supreme Court dismissed the case, however, ruling that Lyons lacked “standing” to seek an injunction against the deadly practice. In order to have standing, the Court l reasoned, Lyons would have to show that he was highly likely to be subject ,H to a chokehold again. Lyons argued that, as a black man, he had good reason to fear he would be stopped by the police for a minor traffic violation and subjected to a chokehold again. He had done nothing to provoke the chokehold; to the contrary, he had obeyed instructions and cooperated fully. Why wouldn’t he THE cotoa OF jUSTICE 127 believe he was at risk of being stopped and choked again? The Court, how ever, ruled that in order to have standing Lyons would have had not only to allege that he would have another en- counter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they have an encounter, whether for the purpose of arrest, issu- ing a citation or for questioning, or (2) that the City ordered or autho- rized the police to act in such a manner.87 Lyons did not allege race discrimination, but if he had, that claim would almost certainly have been a loser too. The Court’s ruling in Lyons makes it E extremely difficult to challenge systemic race discrimination in law enforce- ment and obtain meaningful policy reform. For example, African Americans in Seattle who hope to end the Seattle police department’s discriminatory tactics through litigation would be required to prove that they plan to violate 7* drug laws and that they will almost certainly face race discrimination by Se— % “' , attle police officers engaged in drug-law enforcement, in order to have stand- ing to seek reform~—i.e., just to get in the courthouse door. It is worthy of note that the Lyons standard does not apply to suits for "I i damages. But any suggestion that litigants need not worry about policy re- form because they can always sue for damages would be disingenuousk particularly as applied to race discrimination cases. Why? Neither the state nor the state police can be sued for damages. In a series of cases, the Su- preme Court has ruled that the state and its offices are immune from federal suits for damages under the Eleventh Amendment to the Constitution (un— less they consent), and the state can’t be sued for damages for constitutional violations in state court either?“ City police departments, like the LAPD, are also typically off limits. The Court has ruled that a city police depart» ment cannot be sued for damages unless a specific city policy or custom can”; V g/ be identified authorizing the illegal practice.89 Most cities, of course, do not have policies specifically authorizing illegal conduct (particularly race dis- crimination), and “custom” is notoriously difficult to prove. Accordingly, su- ing a city police department for damages is generally not an option. Yet even if all of those hurdles can somehow be overcome, there is still the matter of proving a claim of rggg__<ii§grirn_inatipn. As we have seen, to establish ., ; conscious racial bias. Law enforcement officials rarely admit to having acted 128 THE NEW JIM cnow _. an equal-protection violation, one must prove intentional discrimination— I for racial reasons, leaving most victims of discriminatory law enforcement without anyone to sue and without a claim that can be proven in a court of law. But even if a plaintiff managed to overcome all of the procedural hur~ dles and prove that a police officer deliberately exercised his or her discre~ tion on the basis of race, that still might not be enough. Race as a Factor {The dirty little secret of policing is that the Supreme Court has actually i granted the police license to di§_crinlinate. This fact is not advertised by police departments, because law enforcement officials know that the pub- lic would not respond well to this fact in the era of colorblindness.. It is the sort of thing that is better left unsaid. Civil rights lawyersi—including those litigating racial profiling cases—have been complicit in this silence, fear- ing that any acknowledgment that race-based policing is authorized by law would legitimate in the public mind the very practice they are hoping to eradicate. The truth, however, is this: At other stages of the criminal justice process, the Court hasindicated that overt racial bias necessarily triggers strict scrutiny—a concession that has not been costly, as very few law enforce- ment officials today are foolish enough to admit bias openly. But the Sn- Epreme Court has indicated that in policing, race can be used as a factor in discretionary decision making. In United States v. BfignOTIi‘PD‘J/ECQ, the Court 1 concluded it was permissible under the equal protection ciause of the Four- l teenth Amendment for the police to use race as a factor in making decisions about which motorists to stop and search. In that case, the Court concluded ,/ that the police could take a person’s Mexican appearance into account when developing reasonable suspicion that a vehicle may contain undocumented immigrants. The court said that “the likelihood that any person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”90 Some commentators have argued that Brignoni—Ponce may be lim- ited to the immigration context; the Court might not apply the same princi- ple to drug-law enforcement. It is not obvious what the rational basis would be for limiting overt race discrimination by police to immigration. The likeli« THE COLOR or Jusrica 129 hood that a person of Mexican ancestry is an “alien” could not be signifi- cantly higher than the likelihood that any random black person is a drug criminal. The Court’s quiet blessinng race-based traffic stops has led to something of an Orwellian public discourse regarding racial profiling. Police departments l l and highway patrol-agencies frequently declare, ‘We do not engage in racial profiling," even though their officers routinely use race as a factor when N making decisions regarding whom to stop and search. The justification for the implicit doublespeak—“we do not racial-profile; we just stop people} based on race”*can be explained in part by the Supreme Court’s jurispru- dence. Because the Supreme Court has authorized the police to use race as"; a factor when making decisions regarding whom to stop and search, police l departments believe that racial profiling exists only when race is the sole fac- tor. Thus, if race is one factor but not the only factor, then it doesn’t really a count as a factor at all. J The absurdity of this logic is evidenced by the fact that police almost never stop anyone solely because of race. A young black male wearing baggy pants, standing in front of his high school surrounded by a group of similarly dressed black friends, may be stopped and searched because police believe he “looks like” a drug dealer. Clearly, race is not the only reason for that con- clusion. Gender, age, attire, and location play a role. The police wouid likelyE ignore an eighty-five—year-old black man standing in the same spot sur- rounded by a group of elderly black women. The problem is that although race is rarely the sole reason for a stop or 7‘ search, it is frequently a determinative reason. A young white male wearingd baggy pants, standing in front of his high school and surrounded by his friends, might Well be ignored by police officers. It might never occur to them that a group of young white kids might be dealing dope in front of their high school. Similarly situated people inevitably are treated differently when police are granted permission to rely on racial stereotypes when making dis- cretionary decisions. Equally important, though, the sole-factor test ignores the ways in which seemingly race-neutral factors—such as location—operate in a highly dis~ criminatory fashion. Some law enforcement officials claim that they would stop and search white kids wearing baggy jeans in the ghetto (that would be suspicious)—~it just so happens they’re rarely there. Subjecting people to stops and searches because they live in “high crime" ghettos cannot be said 130 THE NEW JIM caow 'l to be truly race-neutral, given that the ghetto itself was constructed to con- tain and control groups of people defined by race.91 Even seemingly race- neutral factors such as “prior criminal history” are not truly race—neutral. A black kid arrested twice for possession of marijuana may be no more of a re peat offender than a white frat boy who regularly smokes pot in his dofm room. But because of his race and his confinement to‘ a racially segregated ghetto, the black kid has a criminal record, while the white frat boy, because of his race and relative privilege, does not. Thus, when prosecutors throw (the book at black repeat offenders or when police stalk err-offenders and subject them to regular frisks and searches on the grounds that it makes sense to “watch criminals closely," they are often exacerbating racial dispari- ties created by the discretionary decision to wage the War on Drugs almost fxclusively in poor communities of color. { Defending against claims of racial bias in policing is easy. Because race is never the only reason for a stop or search, any police officer with a fifth grade education will be able to cite multiple nonracial reasons for initiating an encounter, including any number of the so-called "indicator-s-"VnoiC drug' it trafficking discussed in chapter 2, such as appearing too nervous or too calm. Police officers (like prosecutors) are highly adept at offering racenneutral reasons for actions that consistently disadvantage African - Americans. Whereas prosecutors claim they strike black jurors not because of their race but because of their hairstyle, police officers have their own stock excusesfi e.g., "Your honor, we didn’t stop him because he’s black; we stopped him be- cause he failed to use his turn signal at the right time,” or “It wasn’t just because he was black; it was also because he seemed nervous when he saw THE cocoa or JUSTICE 131 Maryland in the 19903. Allegations of racial profiling in federally funded drug interdiction operations resulted in numerous investigations and com- prehensive data demonstrating a dramatic pattern of racial bias in highway patrol stops and searches. These drug interdiction programs were the brain child of the DEA, part of the federally funded program known as Operation Pipeline. in New Jersey, the data showed that only 15 percent of all drivers on the New Jersey Turnpike were racial minorities, yet 42 percent of all stops and 73 percent of all arrEsts were of black motorists—despite the fact that blacks and whites violated traffic laws at almost exactly the same rate. While radar stops were relatively c0nsistent with the percentage of minority violators, discretionary stops made by officers involved in drug interdiction resulted in I! double the number of stops of minorities?3 A subsequent study conducted by the attorney general of New Jersey found that searches on the turnpike were even more discriminatory than the initial stops—77 percent of all consent searches were of minorities The Maryland studies produced simi— lar results: African Americans comprised only 17 percent of drivers along a stretch of I—95 outside of Baltimore, yet they were 70 percent of those who were stopped and searched. Only 21 percent of all drivers along that stretch of highway were racial minorities (Latinos, Asians, and African Americans), yet those groups comprised nearly 80 percent of those pulled over and searched.94 What most Surprised many analysts was that, in both studies, whites were actually more likely than people of color to be carrying illegal drugs or con- traband in their vehicles. In fact, in New Jersey, whites were almost twice as R” the police car.” Judges are just as reluctant to second‘guess an officer’s mo- ‘fiives as they are to second-guess prosecutors’. So long as officers refrain from uttering racial epithets and so long as they show the good sense not to say fill the only reason I stopped him was ’cause he’s black," courts generally turn { a blind eye to patterns of discrimination by the police. Studies of racial profiling have shown that police do, in fact, exercise their discretion regarding whom to stop and search in the drug war in a highly { discriminatory manner.92 Not only do police discriminate in their determi- Sénations regarding where to wage the war, but they also discriminate in their (judgments regarding whom to target outside of the ghetto’s invisible walls. The most famous of these studies Were conducted in New Jersey and likely to be found with illegal drugs or contraband as African Americans, and five times as likely to be found with contraband as Latinos.95 AlthoughW/l Whites were more likely to be guilty of carrying drugs, they were far less likely to be viewed as suspicious, resulting in relatively few stops, searches, and arrests of whites. The former New Jersey attorney general dubbed this phenomenon the “giggapiullpngigngfflgagiglvphmfiling.” Law enforcement offi- cials, he explained, often point to the racial composition of our prisons and jails as a justification for targeting racial minorities, but the empirical evi- dence actually suggested the Opposite conclusion was warranted. The dis— proportionate imprisonment of people of color was, in part, a product (5 racial profilingmnot a justification for it. 132 THE new JIM CROW In the years following the release of the New Jersey and Maryland data, dozens of other studies of racial profiling have been conducted. A brief sampling: ' In Volusia County, Florida, a reporter obtained 148 hours of video footage documenting more than 1,000 highway stops conducted by state troopers. Only 5 percent of the drivers on the road were African American or Latino, but more than 80 percent of the peOple stopped and searched were minorities.96 ' In Illinois, the state police initiated a drug interdiction program known as Operation Valkyrie that targeted Latino motorists. While Latinos comprised less than 8 percent of the Illinois population and took fewer than 3 percent of the personal vehicle trips in Illinois, they comprised approximately 30 percent of the motorists stopped by drug interdiction officers for discretionary offenses, such as failure to sig- nal a lane change.97 Latinos, however, were significantly 1e55 likely than whites to have illegal contraband in their vehicles. 0 A racial profiling study in Oakland, California, in 2001 showed that African Americans were approximately twice as likely as whites to be stopped, and three times as likely to be searched.95 4’ {Pedestrian stops, too, have been the subject of study and controversy The New York Police Department released statistics in February 2007 showing r that during the prior year its officers stopped an astounding 508,540 peopleflw an average of 1,393 per day—who were walking down the street, perhaps on their way to the subway, grocery store, or bus stop. Often the stops included searches for illegal drugs or gunsisearches that frequently required people to lie face down on the pavement or stand spread-eagled against a wall while police officers aggressively groped all over their bodies while bystanders watched or walked by. The vast majority of those stopped and searched were [racial minorities, and more than half were African American.99 The NYPD began collecting data on pedestrian stops following the shoot— ing of Amadou Diallo, an African immigrant who died in a hail of police bul- lets on the front steps of his own home in February 1999. Diallo was followed to his apartment building by four white police officers—members of the elite Street Crime Unit—who viewed him as suspicious and wanted to in- THE COLOR 0F jUSTICE £33 terrogate him. They ordered him to stop, but, according to the officers, Di— allo did not respond immediately. He walked a bit further to his apartment building, opened the door, and retrieved his walletiprobably to produce identification. The officers said they thought the wallet was a gun, and fired forty—one times. Amadou Diallo died at the age of twenty-two. He was un— armed and had no criminal record. Diallo's murder sparked huge protests, resulting in a series of studies corn- missionecl by the attorney general of New York. The first study found that African Americans were stopped six times more frequently than whites, and I that stops of African Americans were less likely to result in arrests than stops I of whites—presumably because blacks were less likely to be found with drugs or other contraband.100 Although the NYPD attempted to justify the stops on the grounds that they were designed to get guns off the street, stops by the Street Crime Unitm—the group of officers who supposedly are spe- cially trained to identify gun-toting thugs—yielded a weapon in only 2.5 percent of all stops.101 Rather than reducing reliance on stop-and-frisk tactics following the Di- allo shooting and the release of this disturbing data, the NYPD dramatically increased its number of pedestrian stops and continued to stop and friskAf— a rican Americans at grossly disprOportionate rates. The NYPD stopped five -' times more people in 2005 than in 2002—the ovarwhelming majority of " whom were African American or Latino.102 In Los Angeles, mass stops of young African American men and boys re- sulted in the creation of a database containing file names, addresses, and other biographical information of the overwhelming majority of young black men in the entire city. The LAPD justified its database as a tool for tracking gang or "gang-related” activity. However, the criterion for inclusion in the database is notoriously vague and discriminatory. Having a relative-l or friend in a gang and Wearing baggy jeans is enough to put youth on what I the ACLU calls a Black List. In Denver, displaying any two of a list of , attributesw—including slang, "clothing of a particular color," pagers, hairstyles, : or jewelry—earns youth a spot in the Denver Police’s gang database. In I l 1992., citizen activism led to an investigation, which revealed that eight out ,' of every ten people of color in the entire city were on the list of suspected criminals .103 134 THE NEW JIM cnow The End of an Era The litigation that swept the nation in the 19903 challenging racial profiling practices has nearly vanished. The news stories about people being stopped and searched on their way to church or work or school have faded from the evening news. This is not because the problem has been solved or because the experience of being of being stopped, interrogated, and searched on the basis of race has become less humiliating, alienating, or demoralizing as time has gone by, The lawsuits have disappeared because, in a little noticed ficase called Alexanderg Sandoval, deficidgd in _2QOJ_,_theiunreme Court {eliminated the last remaining avenue available for challenging racial bias in \the criminal justice system.104 Sandoval was not, on its face, even about criminal justice. It was a case challenging the Alabama Department of Public Safety’s decision to adminis- ter state driver’s license examinations only in English The plaintiffs argued that the department’s policy violated Title VI of the Civil Rights Act of 19.64 ' and its implementing regulations, because the policy had the effect of sub- jecting non—English speakers to discrimination based on their national ori1 gin. The Supreme Court did not reach the merits of the case, ruling instead that the plaintiffs lacked the legal right even to file the lawsuit. It concluded that Title Vi does not provide a “private right of action” to ordinary citizens r and civil rights groups; meaning that victims of discrimination can no longer I \ sue under the law. \ The Sandoval decision virtually wiped out racial profiling litigation nation- wide. Nearly all of the cases alleging racial profiling in drug-law enforce- _ merit were brought pursuant to Title VI of the Civil Rights Act of 1964 and its implementing regulations Title VI prohibits federally funded programs or activities from discriminating on the basis of race, and the regulations employ a udisparate impact test” for discriminationimeaning that plaintiffs 5 could prevail in claims of race discrimination without proving discriminatory :, intent. Under the regulations, a federally funded law enforcement program :— or activity is unlawful if it has a racially discriminatory impact‘and if that im- pact cannot be justified by law enforcement necessity. Because nearly all law enforcement agencies receive federal funding in the drug war, and be- cause drug war tactics—such as pretext stops and consent searchesuhave a grossly discriminatory impact and are largely ineffective, plaintiffs were THE COLOR OF JUSTICE able to argue persuasively that the tactics could not be justified by law en- forcement necessity in 1999, for example, the ACLUprorthern .aclass ac: tion lawsuit against the California Highway Patrol (CHP), alleging that its”:- tr" highway drug interdiction program violated Title VI of the Civil Rights Act 4 because it relied heavily on discretionary pretext stops and consent searches that are employed overwhelmingly againstAfrican American and Latino mo— torists. During the course of the litigation, the CHP produced data that showed African Americans were twice as likely, and Latinos three times as likely, to be stopped and searched by its officers as were whites. The data further showed that consent searches were ineffective; only a tiny percent~ age of the discriminatory searches resulted in the discovery of drugs or other contraband, yet thousands of black and brown motorists were subjected to baseless interrogations, searches, and seizures as a result of having commit— ted a minor traffic violation. The CHP entered into a consent decree that 7 provided for a threeayear moratorium on consent searches and pretext stops statewide and the collection of comprehensive data on the race and ethnic: ity of motorists stopped and searched by the police, so that it would be pos- sible to determine whether discriminatory practices were continuing. Similar results were obtained in New Jersey, as a result of landmark litigation filed against the New Jersey State Police. After Sandovallthese cases can no lon- ger be brought under Title VI by private Only the federal govern- ment can sue to enforce Title Vl’s antidiscrimination provisionsisomething 7} it has neither the inclination nor the capacity to most racial profiling cases due to its limited resources and institutional reluctance to antagonize A local law enforcement. Since the War on Drugs, private litigants represented by organizations such as the ACLU have been at the forefront of racial pro- filing litigation. Those days, however, have come to an end. The racial profil» ing cases that swept the nation in the 19905 may well be the last wave of litigation challenging racial bias in the criminal justice system that we see ,% for a very long time. The Supreme Court has now closed the courthouse doors to claims of‘ racial bias at every stage of the criminal justice process, from stops and< searches to plea bargaining and sentencing. The system of mass incarcera- tion is now, for all practical purposes, thoroughly immunized from claimsj of racial bias. Staggering racial disparities in the 'war continue but rarely make the news. The Obama administration has indicated it supports 136 THE. NEW JIM cnow abolition of the hundred-to-one disparity in sentencing for crack versus powder cocaine—the most obvious and embarrassing example of racial bias in a system that purports to be colorblind. But that disparity is just the tip of the iceberg. As noted in chapter 2, this system depends primarily on the prison label, not prison time. What matters most is who gets swept into this system of control and then ushered into an undercaste. The legal rules ad- opted by the Supreme Court guarantee that those who find themselves locked up and permanentiy locked out due to the drug war are overwhelm- ingly black and brown. 4 The Cruel Hand A heavy and cruel hand has been laid upon us. Asia people, we feel ourselves to be not only deeply injured, but grossly misunderstood. Our white country- men do not know us. They are strangers to our character, ignorant of our capac- ity, oblivious to our history and progress, and are misinformed as to the principles and ideas that control and guide us, as a people. The great mass of American citizens estimates us as being a characterless and purposeless people; and hence we hold up our heads, if at all, against the withering influence of a nation’s l scorn and coriternput.1 —Frederick Douglass, in a statement on behalf of delegates to the National Colored Convention held in Rochester, New York, in July 1853 When Frederick Douglass and the other delegates to the National Colored Convention converged in Rochester, New York, in the summer of 1853 to discuss the condition, status, and future of r‘coloreds" (as they were called then), they decried the stigma of race—the condemnation and scorn heaped upon them for no reason other than the color of their skin. Most of the dele— gates were freed slaves, though the younger ones may have been born free. Northern emancipation was complete, but freedom remained elusive. Blacks were finally free from the formal control of their owners, but they were not full citizenseeuthey could not vote, they were subject to legal discrimination, and at any moment, Southern plantation owners could capture them on the street and whisk them back to slavery. Although Northern slavery had been ...
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