The New Jim Crow | Study Guide

Michelle Alexander

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The New Jim Crow | Chapter 2 : The Lockdown | Summary

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Summary

Many people believe they understand how the criminal justice system works because of a glut of fictional television shows on the subject. These shows typically tend to romanticize drug law enforcement. The way the criminal justice system actually works bears little resemblance to these television shows; the rules of law and procedure they depict are much harder to find in real life. The single biggest cause of the explosion in incarceration rates is drug offense convictions, accounting for two-thirds of the rise of federal inmates. The majority of these convictions are for minor offenses, such as possession. Many of those convicted on these charges have no history of violence or intent to sell. The majority of the convictions are for marijuana possession, a drug that is not deemed to be "dangerous." Consequently, by 2007, one in every 31 adults in America was either locked up, on probation, or on parole.

Rules of the Game

The Fourth Amendment to the US Constitution provides security against unreasonable searches and seizures without probable cause or a warrant. Until the War on Drugs, courts had "been fairly stringent" about upholding these rights. But a shift began within a few years in the relationship between citizens and police in regards to these rights. Alexander points out that "virtually all constitutionally protected civil liberties" have been threatened by the War on Drugs. This means that there are new legal loopholes by which anyone can become a target of drug law enforcement by the police.

Unreasonable Suspicion

Under the Fourth Amendment, police could not stop and search someone without a warrant unless they could prove a probable cause. The Amendment was modified after a 1968 US Supreme Court ruling. It was changed to mean that if police officers observe "unusual conduct," they have the right to conduct a limited search for weapons. In the years since that decision, interrogations and stop-and-frisks of ordinary people driving or walking have become commonplace for people of color. The police today no longer need to believe that people are dangerous to stop and search them, as long as that person consents.

Just Say No

One common tactic of police during the War on Drugs was sweeps of buses during interstate travel. They did not inform passengers of the right to remain silent or refuse to answer questions. Convictions against these passengers were overturned by state courts, only to be reinstated by the US Supreme Court. Lower courts pointed out that most people would feel pressured or obligated to speak to law enforcement when questioned. However, the US Supreme Court argued that "reasonable people" understand that they don't have to. This makes "consent searches" valuable tools for law enforcement because they are aware that very few say no to them out of obligation or fear.

Poor Excuse

Alexander points out that most people feel intimidated by cops when they are confronted by them and asked questions. Most are unaware that they can legally answer "no" when asked to talk. Another tool that law enforcement relied on during the War on Drugs was pretext stops. This is a traffic stop meant not to enforce traffic laws but to look for drugs despite the absence of evidence. Much like consent searches, the US Supreme Court has enabled pretext stops. It seemed to make clear by these rulings that the Fourth Amendment was unable to place any constraints on police searches during the War on Drugs. A motorist who refuses consent to being searched can still be arrested for minor traffic violations, or police can bring in a drug-sniffing dog.

Kissing Frogs

Many people of color fear police harassment and retaliation for complaining about unfair searches. Many have little confidence in a fair hearing or fair treatment. This means that the public rarely hears about the many innocent who walk free after being searched. Their impression is that the searches lead to better police work. Yet the police have no special training that allows them to spot criminals. The Drug Enforcement Agency (DEA) trained its officers how to use pretext traffic stops and consent searches as gateways to look for drugs. Rather than train officers to spot lawbreakers, it teaches them to take a "volume approach" that ends up sweeping over large numbers of innocent people. One estimate is that 95 percent of these stops yield no illegal drugs.

It Pays to Play

The rules for fighting the War on Drugs allow for the rounding-up of a large number of Americans for minor and nonviolent offenses. Alexander ponders why, exactly, police would choose to arrest so many people for minor drug crimes. Many police departments have far more violent and serious crimes to solve. Even more puzzling is the fact that drug use was declining when the War on Drugs began. Initially, law enforcement was resistant to the War on Drugs. It wasn't a pressing public concern and there were far more violent crimes to solve. This created an issue for the Reagan administration since a large part of its campaign was the War on Drugs. The administration provided large cash grants to law enforcement agencies that promised to make drug law enforcement their main priority. Therefore, the system is linked and traceable to what boils down to be a bribe offered by the federal government to state and local law enforcement.

Waging War

Another component that contributed to the War on Drugs was the formation of SWAT teams in every major city. Prior to the War on Drugs, SWAT teams were only used in emergency situations for hostages or hijackings. Once local law enforcement had increased access to federally-bestowed cash and military equipment, things began to change. Today SWAT teams are commonly used to serve drug warrants. Their tactics are violent and startling: throwing grenades, pointing guns, and entering in the middle of the night. Dozens of people have been killed during the course of these raids—a shift from what was once "community policing" to "military policing." This approach was urged in part by President Reagan's persuasion of Congress to pass the Military Cooperation with Law Enforcement Act. Local law enforcement was then incentivized to prioritize drug arrests and could also net city or county money for each arrest made. Policing not related to illegal drugs, on the other hand, was not rewarded with federal dollars—not even violent crime.

Finders Keepers

The Reagan administration offered one other incentive for local law enforcement to focus on drug crime. This was the authority to keep any cash and assets seized. This gave state and local police a large stake in fighting the War on Drugs, and not even to win it, but to prolong it. It was, therefore, beneficial to law enforcement that the drug market stayed booming. Police departments were suddenly able to increase their budgets merely by seizing the money and assets of the people they arrested for drug crimes. Property could be seized even if a person wasn't charged with a crime.

The Shakedown

Alexander finds it predictable that the large rewards created by drug-law enforcement incentives have blurred the line between lawful and unlawful seizure of money and property by police. Many officers were aware that their jobs depended on renewals of federal grants. Therefore, they needed to keep the number of drug-related arrests high. Reporter investigations found that police used traffic violations as an excuse to confiscate money from motorists. In 2000, Congress passed the Civil Asset Forfeiture Reform Act with the aim of addressing police abuse of civil forfeiture. This Act shifted the burden of proof back to the government. Alexander argues that the reform does not go far enough since a citizen must prove they did not know their possessions were tied in any way to anything illegal. Ninety percent of forfeiture cases go unchallenged because citizens must represent themselves in court against the federal government and must hire their own attorney. An even bigger failure of the Reform Act is the fact that it doesn't address the profit motive that remains for drug law enforcement. Police departments are still allowed to keep the assets they seize for their own use. This means that law enforcement still has a monetary interest in keeping the war on drugs going—and so it has become institutionalized.

Legal Misrepresentation

Alexander posits that the design of the War on Drugs system helps to ensure that entire racial caste is created and sustained. This is because after being arrested, the chance of ever becoming truly free of the system again are slim. Many defendants are denied meaningful legal representation and are pressured into a plea bargain rather than accept a lengthy sentence. Even though the Supreme Court ruled that all people accused of serious crimes are entitled to legal counsel, thousands of people go through courts every year with no lawyer. America's public defender system is inadequate due to the large caseloads. This makes it impossible for public defenders to adequately defend their clients. The low pay and large caseloads also discourage attorneys from becoming public defenders.

Bad Deal

Accused criminals rarely go to trial. Instead, they have their cases resolved through plea bargaining, in which the accused submits a guilty plea in exchange for a lesser punishment. This makes prosecutors the most powerful law enforcement officials—more so than judges or even police. Prosecutors have a great deal of freedom to dismiss cases or file more charges against a defendant. Prosecutors often offer lesser sentences for guilty pleas when the alternative by going to trial is much more severe. Many defendants choose the plea deal rather than take the risk, especially if they can't rely on having their own counsel. Mandatory minimums introduced during the War on Drugs have given a great deal of power to prosecutors. One way that prosecutors exercise this bargaining power is by "loading up" charges on defendants that would be hard to prove in court but which carry harsh sentences. This pressures them to plead guilty to the lesser charges. Reliable estimates show that between two and five percent of people in prison are innocent—which translates into tens of thousands of people.

Time Served

Mandatory drug-sentencing laws mean that sentences for drug crimes are often longer than sentences for violent crimes. They also don't allow for a judge to account for circumstances such as addiction in their sentencing. This would result in a defendant getting treatment rather than a prison sentence. Mandatory sentencing laws are used as a justification to keep violent criminals behind bars. However, the majority of drug offenders are not guilty of violent crimes. Alexander notes that some federal judges have quit in protest of federal drug laws and mandatory sentencing, after witnessing up-close the devastating impact on lives.

The Prison Label

Many people believe that the large jump in the prison population is due to growing crime. Crime rates haven't changed—except to decline, for the most part—but changes in laws and policies have, particularly the length of prison sentences. Alexander also points out that once a person is labeled as a felon, upon release they experience legal discrimination and exclusion because of that label. Reducing prison terms doesn't have any impact on the lives of people already in the system, even if they are on parole or probation. The felon label will relegate them to second-class status for the remainder of their lives. They are barred from public housing, ineligible for food stamps, and forced to reveal their criminal record on employment and private housing applications. They are also banned from receiving licenses necessary for a wide range of professions. These rules also include restrictions on travel and behavior, as well as paying fines and meeting with probation officers. Those violations usually land them back in prison. By 2000 as many people returned to prison on parole violations as there were people in prison in 1980 for all reasons. Alexander argues that the only way to reduce the number of people in prison is to change laws and policies that label people felons.

Analysis

Most Americans seem to believe they understand how the criminal justice system works, based on television shows about criminals and news reports from the media. Alexander tells in thorough detail just how misunderstood the ins and outs of the justice system are, particularly since the dawn of the War on Drugs. This campaign quadrupled the number of drug offenders sent to prison for mandatory minimums or three strikes laws. The majority of those serving time in prison are incarcerated for nonviolent, soft-drug crimes, such as marijuana possession. Through government sanctions and programs, law enforcement became emboldened to increase searches and seizures. They based the increase on racial profiling, able to give reasons such as "because he had short hair," or "because he had long hair." When the unconstitutionality of such procedures has been brought all the way to the US Supreme Court, the courts rule over and over in favor of law enforcement. The Court continually dismisses any evidence that many of the stop and frisks are based on nothing other than skin color. These rulings have eroded constitutional civil liberties slowly but surely. It is disturbing that in a country founded on liberty and justice, these rights are granted conditionally. What's more, the federal government has incentivized law enforcement to make more drug-related arrests. Law enforcement has received increased funding and the right to keep any cash or property possessed during the arrests. Incentivizing cops to seek out and arrest drug crimes only keeps the War on Drugs going, rather than any effort towards rehabilitation or community outreach. Additionally, when there is no oversight for the unprecedented power drug law enforcement can wield, abuse of it can run rampant.

Being arrested on a suspicion of a drug crime is only the beginning of the ordeal of incarceration. Many criminal defendants go without decent representation in court. They are pressured by the prosecution to plead guilty in order to cut a deal, even if they did not commit the crime. To not plead guilty is to risk having more charges brought with harsher punishments. Most public defenders are overwhelmed by their caseloads. They often encourage their clients to accept the deal rather than face the risk of increased prison time. And after people serve their time and are released, they are still accountable to parole and probation systems, and they still face the stigma of being labeled a criminal. Yet studies and data cited in Kissing Frogs reveal that most of those detained and searched are "innocent of any crime." Drug law enforcement is able to use any pretext—which is most often racial—in order to stop someone and search them for drugs. A large number of innocent people are affected in the process. Alexander points out that initially, the War on Drugs was not even a law enforcement initiative, but a political one reinvented by the Reagan administration. In order to get law enforcement on board, the federal government offered enticing incentives for law enforcement to shift its priorities to drug offenses. This is significant because it addresses not only how the War on Drugs was able to succeed on such a massive scale, but also why it was able to succeed. To make things worse, law enforcement all but had a monetary stake in the War on Drugs never ceasing and continuing to be profitable. In this light, the very people hired to protect citizens and their property have an incentive to continue the lawful and unlawful seizure of other people's property. As long as there is still benefit to be had, the system itself will never have any incentive to end. It also begs the question of whether the War on Drugs is actually designed to prevent crime or to control the criminals it arrests.

Drug law enforcement, for all the power wielded, is not the biggest and most influential player in the War on Drugs—prosecutors are. This is because prosecutors are able to offer plea bargains or add more charges to a defendant's arrest. Much of this is due to new mandatory minimum sentencing requirements. These guarantee that prosecutors wield control over charges much more than the judges who sentence them. In this way, prosecutors are able to pressure defendants into accepting plea deals rather than risk much harsher punishments. Mandatory minimums also mean that judges have no choice but to sentence drug defendants longer than they would normally receive. They are no longer allowed to treat defendants as individuals with varying relevant circumstances. This is significant because it means a third-time marijuana user can face just as much time as a violent criminal or someone arrested for much more dangerous drugs. The explosion in the prison population, therefore, is not due to any significant change in crime rates. It has been caused by changes in sentencing guidelines. Alexander takes care to point out this irony in the system. Mass incarceration has done little to change drug crime rates but instead has created an entire second-class racial caste of criminals. This designation doesn't end when people leave prison, either. They simply now inhabit a world in which discrimination against them is perfectly legal in housing, employment, and public assistance. This stigma also lends itself to many inevitable returns to prison. Once people realize they can't find housing or jobs, they return to dealing drugs to survive or get arrested for failing to meet a parole guideline. One sociologist brands this as "a closed circuit of perpetual marginality," meaning that it is a cycle that is all but impossible to escape from.

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