The New Jim Crow | Study Guide

Michelle Alexander

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The New Jim Crow | Chapter 3 : The Color of Justice | Summary

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Summary

In the War on Drugs, African Americans are subject to tactics and practices that would elicit public outrage if they happened in white middle-class neighborhoods. In seven states, African Americans make up over 80 percent of all drug offenders sent to prison. Statistically, people of all races use and sell drugs at similar rates. In fact, white teenagers are far more likely to sell and do drugs than black teenagers. Yet media imagery leads the public to believe the reverse is true, as well as the disproportionate number of minorities in prisons. Drug trafficking occurs everywhere in America—not just in inner city ghettos. Yet the racial biases of the War on Drugs means that although one in 14 black men are in prison for drug-related crimes, only one in 106 white men is. Publicly, however, racial attitudes have profoundly shifted in support of colorblind norms. As a result, many defenders of mass incarceration argue that the criminal justice system is now much fairer. These defenders blame "violent crime rates in the African American community" for a large number of black men in prison. Alexander posits that violent crime is not responsible for this mass incarceration—research shows that violent crime rates have little relationship to incarceration rates. In fact, violent crime rates are historically low, while incarceration rates continue to increase. Because of correctional control such as parole, this racial caste system goes beyond incarceration and dictates the daily lives of millions. Most of these offenders have been convicted of nonviolent crimes.

Alexander addresses the fact that many might dispute her claim that race plays a large role in drug arrests and mass incarceration. She highlights that the "new system" is set up in such a way that it can defend itself on "nonracial grounds." From this vantage, Alexander sets out to investigate how a "formally colorblind" system has been able to produce obviously racially discriminatory results. This occurs because law enforcement holds a great deal of power in its ability to stop, search, arrest, and charge anyone for a drug offense. It is also a system in which clear evidence of intentional racial discrimination can't be produced.

Picking and Choosing—The Role of Discretion

A drug-enforcement law is unlike most other types of law enforcement since there is not a clear victim. Buying and selling drugs is a mutually consensual activity—and a popular one at that. Because it is so ubiquitous, law enforcement must strategize who to target and how. It's worth noting that police and prosecutors didn't start the War on Drugs, but financial incentives made it attractive enough for agencies to begin strategizing. The media also changed its reporting to sensationalize an us versus them narrative—with them being drug-dealing black Americans. This depiction solidified the image of a black drug criminal. In many ways, the word crime became a coded word for black. Law enforcement officials were also exposed to these images and coded language, reinforcing biases. Alexander points out that unconscious and conscious cognitive biases tend to lead to discrimination, even when the person doesn't believe they are. Once blackness and crime became linked in the public perception, the biases solidified. Rather than protect the rights of African Americans, the US Supreme Court adopted rules that maximized racial discrimination during the War on Drugs. The Court also made it virtually impossible to challenge criminal justice racial bias under the Fourteenth Amendment.

Closing the Courthouse Doors—McCleskey v. Kemp

In 1987 the Court ruled in McCleskey v. Kemp that racial bias in sentencing could not be challenged under the Fourteenth Amendment. McCleskey was sentenced to death for killing a white police officer during an armed robbery in Georgia. He challenged the sentence on the grounds that it violated the Fourteenth and Eighth Amendments. He cited a study in his defense. The study showed that defendants charged with killing whites were 11 times more likely to receive the death penalty than defendants who kill blacks. Black defendants who killed white victims had the highest chance of receiving the death penalty. The Court rejected McCleskey's claims since he could not prove that the prosecutor in his case had sought the death penalty for racial reasons. The Court's decision suggested that racial discrimination could be tolerated in the criminal justice system as long as no one admits that is the case. In this light, Alexander argues it became a way to "immunize" the criminal justice system against any charges of racial bias.

Cracked Up—Discriminatory Sentencing in the War on Drugs

Alexander points out that a conviction for selling crack cocaine is 100 times more punishing than one for selling powder cocaine. An 18-year old named Edward Clary was sentenced to a minimum of 10 years in prison for selling less than two ounces of crack cocaine. During his trial, he challenged the constitutionality of the differences in punishment. His lawyers also argued that the law discriminates against African Americans since they are the majority of those charged for selling crack. Courts historically rejected these claims. However, Clary's judge challenged the prevailing views of the court. He declared that it was a racially discriminatory law that violated the Fourteenth Amendment. He also decided to sentence Clary as though he were in possession of powder cocaine—a lesser crime punished by only four years in prison. The prosecution appealed the judge's decision and it was overturned. Clary was then sent back to prison to complete a 10-year sentence.

Charging Ahead—Armstrong v. United States

A black man named Christopher Lee Armstrong was arrested for conspiracy to distribute crack cocaine. The federal public defenders assigned to his case noticed that every single crack defendant they took on was black. Not a single case over the course of three years involved a white person. They also found it disturbing that no white crack offenders had ever been charged, despite the fact that most crack offenders are white. This led them to believe that most whites were being sent from the federal system to the state system. They filed a motion to figure out how many white defendants had been transferred and why. They provided affidavits in support of their claim that showed that white and blacks use crack in equal proportion. The affidavits also indicated that nonblack defendants were regularly prosecuted in state courts rather than federal courts. There was even a government list that showed that of more than 2,000 people charged with crack cocaine violations, none were white. The prosecutors refused to release their records and appealed the case up to the US Supreme Court. The Court supported the case, rationalizing that Armstrong should have to produce information about white defendants who should have been charged in federal court. That information belonged to the very prosecutors he filed a motion against to discover in the first place. This also meant that prosecutors—who hold the most power—were immune to claims of racial bias. This was despite the fact that numerous studies demonstrate that prosecutors interpret criminal activity differently based on race.

In Defense of the All-White Jury—Purkett v. Elem

The history of race discrimination in jury selection can be traced back to slavery. Until 1860 no black person had ever served on a jury in the United States. After briefly being allowed to serve during Reconstruction, the all-white jury returned to the South. The US Supreme Court finally intervened in 1880 by striking down a statute in West Virginia that reserved jury service for white men. Yet it offered little in the way of meaningful protection against jury discrimination during the following years. The Court repeatedly upheld convictions of black defendants by all-white juries. Potential black jurors are still systematically excluded through the use of peremptory strikes. Both prosecutors and defense lawyers are allowed to strike jurors they don't believe will respond favorably to the evidence or witnesses during a trial. These challenges—meant to prevent bias in jurors—are more commonly used to create discriminatory juries. Thirty-one states also exclude former felons from serving on juries. In 1995 the Court ruled in the case of Purkett v. Elem (appears in text as Purkett v. Elm). Any "race-neutral" reason was enough for a prosecutor to have proof that the reason for a peremptory strike was not racially discriminatory. Those reasons could be as absurd as not liking someone's facial hair.

The Occupation—Policing the Enemy

Alexander posits that rather than legally banning race discrimination in policing, the US Supreme Court has authorized it. She points out that the police choose to go looking for drugs in inner city ghettos rather than suburban white neighborhoods. This is despite the fact that there are similar rates of drug use and selling. Poor blacks are easy targets because they lack political power and are confined to ghetto areas. In many ways, the militarization of law enforcement in these communities can be likened to an "Occupation." Defenders of these tactics claim that black and Latino drug users are merely more likely than whites to buy drugs out in the open. Therefore, it is easier for police to catch them. Yet even law enforcement officials admit that the demand for drugs is so great that anyone they arrest will soon be replaced. Violence occurs when drug rings are broken up.

Unconventional Wisdom

In 2002 a team of researchers tested the defenses of the drug war by submitting them to empirical testing in a racially-mixed city. The study showed that the high rates of arrests of African Americans couldn't be explained by rates of offending—or any other regularly used excuses. Instead, the study found that it was false stereotypes about crack that drove the decisions of the drug law enforcement. In racially mixed "open-air" drug markets, black dealers were more likely to be arrested than whites, despite their similar visibility. The study concluded that the police department focused its arrests on crack sellers and users and to make their arrests mainly in open-air drug markets. This showed "a racialized conception of the drug problem." White people were rarely even perceived as possible drug offenders, making them largely invisible to the police, and therefore protected.

Hollow Hope

Alexander brings up the question of why African American defendants are unable to file a successful lawsuit demanding an end to discriminatory drug-law enforcement practices. One legal scholar notes that the Court has imposed "nearly insurmountable barriers" to anyone who attempts to challenge race discrimination in the criminal justice system. One man who was put in a lethal chokehold during a routine traffic stop sued the City of Los Angeles for violating his constitutional rights. The lawsuit aimed to ban the practice of chokeholds by law enforcement. By the time his case reached the Court, 16 people had been killed by the practice. Yet the Court dismissed the case, arguing that he would need to prove that if he had another encounter with police he would be choked.

Race as a Factor

Police departments publicly declare that they don't racially profile while engaging in arrest tactics. This is despite the fact that they routinely use race as a factor for stop and search. They are able to do this because the Court essentially authorized the police to use race as a factor for this tactic. Nearly all seemingly "race-neutral factors" are, in fact, based on race. These include targeting people who live in "high-crime ghettos" or with a prior criminal history—people who usually tend to be black. Yet police are able to defend themselves against claims of racial bias because race is never the only reason they cite during stop and searches. Judges, for their part, are just as hesitant to second-guess the reasons for police's motives as they are prosecutors'. At least two studies have demonstrated that whites were actually more likely than people of color to be in possession of drugs during vehicle searches. One attorney general pointed out that this is the result of the "circular illogic of racial profiling." Law enforcement agencies point to a large number of minorities in prison as a reason to target them. They don't realize that their imprisonment is the product of that racial profiling. The stop-and-frisk tactics amongst black men are so common that many assume the position as soon as they see the police approach in their neighborhood. This becomes "a ritual of dominance and submission." These encounters are also often the "gateway into the criminal justice system."

The End of an Era

In 2001 the Supreme Court effectively eliminated any recourse for challenging racial bias in the criminal justice system. As a result, reporting on any litigation in the media ceased, with many being led to believe that racial profiling practices had decreased.

Analysis

Statistics show that whites use and sell drugs at the same rates as blacks (if not higher). However, whites don't face even remotely the same kind of stop and frisk tactics or sentencing as blacks. The War on Drugs has never been framed by the government and law enforcement in racial terms. Therefore, the majority of people accept at face value that it is battle against the drugs and criminals who sell them. What they fail to realize is that the majority of the "criminals" who are stopped, searched, and arrested "just happen" to be black. Rarely does drug law enforcement enter white middle-class neighborhoods or wealthy private schools. This is despite the fact that there is as much evidence that drugs are being sold there as anywhere else. The majority of Americans accept the brutal tactics used against suspected black criminals by law enforcement. This shows a huge double standard when it comes to who is "allowed" to be punished for these kinds of crimes. Drug crime is unlike other crime in that it is not violent and is also a consensual act between seller and buyer. Drug law enforcement must make "strategic choices" about whom to target and how. At the insistence of government campaigns for the War on Drugs, the media often portrays drug criminals as black. This approach leads the public to believe blacks are the primary problem.

Alexander traces racial discrimination to law enforcement having an unusual amount of discretion in choosing whom to stop, search, and charge. Therefore, whatever conscious or unconscious stereotypes they hold about blacks or whites go unchecked. The psychological consequences of this run deep. Many are unaware of the cognitive biases they hold, often shaped by the media's storytelling efforts. Alexander highlights in Picking and Choosing—The Role of Discretion that "racial bias in the drug war was inevitable" according to the relevant research. If most people are unaware of or deny that they have racial prejudices, there is no starting point at which to begin fixing them. At a certain point, allowance for these biases became institutionalized through a series of Supreme Court rulings. In McCleskey v. Kemp, the Court all but sanctioned racial bias "so long as no one admits it." Much like with the oversight of how drug law enforcement seizes the property and cash of arrested drug criminals, this leaves little recourse for those arrested, or accountability for law enforcement. There is virtually no recourse for a person of color who is stopped and searched on the basis of their race. Some judges have recognized and made statements regarding the constitutional unfairness of different drug sentencing guidelines for crack cocaine versus powder cocaine. They have commented on the unfairness of mandatory minimum sentencing that accompanies only crack cocaine cases.

Alexander provides these anecdotes in order to raise the question of why a society would find one option tolerable and the other unacceptable. Her conclusion is that it can only be about race. The cost to blacks is staggering, as she points out in Charging Ahead—Armstrong v. United States. When viewed through the lens of lives wasted and lives lived freely, an obvious connection between slavery, Jim Crow, and mass incarceration emerges. The emphasis on black drug crime and use all but "renders illegal drug activity by whites invisible." It gives one race a free pass and ability to move through society with ease and on the other it casts a constant gaze of suspicion. The illusion of invisibility may embolden a section of society to feel more confident committing illegal activities, knowing that the stakes are lower for them. It also demonstrates that racial profiling is actually the cause of the disproportionate number of racial minorities in prison. It is not a reflection of the ratio of crimes being committed.
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