Note: This is the third installment in a series discussing Michelle Alexander’s book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. For other posts in this series see:
In Chapter 2, Alexander shifts her attention away from race to focus on the overall impact of the Drug War and its implications. She pinpoints the Drug War as the single greatest reason for the unprecedented rise in America’s incarceration rate and charges America’s “tough on crime” posture with unraveling our constitutional rights. Here are some of the major talking points from Chapter 2:
The Drug War equipped the federal government with the legal means to criminalize and imprison millions of Americans in a draconian fashion historically associated with only the most oppressive regimes.
Drug offenders in prison or jail have increased by 1100 percent since 1980, meaning that over 31 million people have been arrested for drug offenses over the past forty years. More people are in jail for drug offenses today than the number of people imprisoned for all offenses in 1980. Over 66 percent of the federal inmate population is accounted for by drug offenses alone. The majority of people in state prisons have no history of violence or significant drug selling. In 2005, at least 80 percent of drug arrests were for possession only; and in 2011, over 79 percent of the total growth in drug arrests had been for marijuana possession. The result is that 1 out of every 31 U.S. adults are under correctional control. This unprecedented surge does not correspond to any parallel increase in drug use or crime.
One major contributor to the surge in prison population has been the creation of three-strikes-you’re-out legislation, leading to harsher and harsher sentences for minor, nonviolent crimes. In one case, a man was sentenced to 50 years in prison for stealing videotapes. In another case, a man was sentenced to 55 years in prison for three marijuana sales, a mandatory sentence that the judge himself described as unjust. “The court believes,” he said, “that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational.” Many judges have resigned, refused to accept drug cases, and spoken out against the draconian laws they are forced to uphold in the Drug War.
Moreover, about 80 percent of criminal defendants are poor and unable to hire a lawyer. This leaves them at the mercy of public defenders whose unreasonably high caseloads make it impossible for them to receive fair representation. Popular television shows like “Law and Order” contribute to the public notion that the minute a poor person demands a lawyer, effective legal aid arrives in their cell. This is simply not the case. One man, for instance, spent over 8 years in a Louisiana jail without ever receiving legal aid or even a trial. One city had only two public defenders for an average of 2,500 new felony cases and 4,000 new misdemeanor cases each year. Tens of thousands of innocent defendants go to jail or prison every year because they are too poor to afford adequate representation or plead guilty because they do not understand the process.
For more research:
- Race to Incarcerate, 33
- A 25-Year Quagmire: The War on Drugs and Its Impact on American Society, p. 2
- Hearing on Unfairness in Federal Cocaine Sentencing: Is it time to Crack the 100 to 1 Disparity?
- A 25-Year Quagmire: The War on Drugs and Its Impact on American Society, pp. 2-3
- One in 31: The Long Reach of American Corrections, p. 5
- Lockyer v. Andrade
- “The Hidden Problem of Time Served in Prison”
- Criticizing Sentencing Rules, U.S. Judge Resigns
- 2 Judges Decline Drug Cases, Protesting Sentencing Rules
- “Revolt to Sentencing is Gaining Momentum”
- Schools and Prisons: Fifty Years After Brown v. Board of Education
- Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice
- 8 Years in a Louisiana Jail but He Never Went to Trial
Operation Pipeline, which began in the 1980s, essentially equipped law enforcement officers with the legal means to stop and search anyone and everyone. Under this program, tens of thousands of civilians are stopped, interrogated, and searched every year, when the vast majority (95 to 99 percent) yields no illegal drugs. The result is that tens of thousands of innocent people are mistreated for the sake of finding a few offenders.
The program was designed to train officers in the “characteristics” of drug offenders for the purposes of interdiction. However, these “drug courier profiles” are so broad and so vague that virtually anyone can be stopped for any reason whatsoever. The following is a non-inclusive list of a few of the traits used by federal agents in a drug-courier profile:
For More Research:
- Fourth Amendment Lessons from the Highway and the Subway: A principled Approach to Suspicionless Searches, p. 44
- New Jersey Argues that the U.S. Wrote Outline for Race Profiling
- Explaining and Eliminating Racial Profiling
- Review of the Drug Enforcement Administration’s Use of Cold Consent Encounters at Mass Transportation Facilities
- Driving While Black
The Drug War has contributed to the unprecedented militarization of civilian police, the expansion of federal power, and fiscal corruption in the criminal justice system.
The transformation of the police began in 1981, when Congress passed the Military Cooperation with Law Enforcement Act, thereby undermining a 90-year-old law which prevented the use of the military in civilian policing. This new legislation authorized and encouraged the military to give police access to military bases, weaponry, and other equipment for drug interdiction.
Prior to the 1980s, paramilitary units (or SWAT teams) were used in rare emergency situations, such as hostage takings, hijackings, and prison escapes. But throughout the 1980s and thereafter, deploying SWAT teams against civilians became common. Over the course of several decades, the federal government engaged in an unprecedented effort to militarize civilian law enforcement, resulting in war-style military raids against countless innocent people and minor drug offenders with no history of violence, often leading to unnecessary deaths.
To put this in context, in 1972, there were a few hundred paramilitary drug raids per year in the U.S. By the early 1980s, about 3,000. By 1996, there were 30,000. By 2001, there were 40,000. In explanation, one SWAT officer told a reporter, “It’s a war.” Between 1997 and 1999, about 3.4 million orders of military equipment went through the hands of domestic police agencies, including grenade launchers, Blackhawk helicopters, and thousands of M16 rifles. One retired police chief recalled that he was offered “tanks, bazookas, anything I wanted.” The result of such militarization he observed, “feeds a mind-set that you’re not a police officer serving a community, you’re a soldier at war.”
For More Research:
By tying massive amounts of federal money to drugs, legislators directly encouraged the expansion of federal power into areas largely considered state issues. As agencies became dependent on federal funds, the federal government simultaneously enacted legislation allowing law enforcement agencies to essentially make money off drugs. Pretext confiscations, for instance, became common methods for seizing money, even apart from criminal behavior. One investigation by reporters in Florida revealed that law enforcement officers used pretext to confiscate tens of thousands of dollars, even when there was no evidence of wrongdoing (no charges for 3 out of every 4 seizures).
Federal and state asset forfeiture laws eventually allowed the government to confiscate any goods or real estate that it could connect to drug trafficking. Such legislation has led to countless home raids with sparse legal justification in order to uncover phantom drugs and seize the property of innocent victims. Under these forfeiture laws, poor drug offenders who commit smaller crimes often suffer the harshest penalties of the law. Wealthy drug dealers and major kingpins reduce their sentences or even get off altogether by trading in their assets, essentially buying their way out of prison, while poor drug offenders have little to barter. One investigation of the four largest counties in Massachusetts found that offenders were able to reduce their sentences by 6.3 years for every $50,000 payment they made.
Ultimately, federal grant programs and forfeiture laws have created an incentive for law enforcement to keep the Drug War “alive,” at the expense of objectively assessing the benefits of more effective drug interventions. A drug task force in the state of Washington, for instance, was forced to cut its budget by 15 percent following the legalization of medical marijuana. Not surprisingly, law enforcement vehemently opposed the legalization, even though there remains little evidence to suggest that medical marijuana leads to an increase in crime.
For More Research:
- Department of Justice Drug Demand Reduction Activities
- “Trail’s End: Deep in a Wild Canyon West of Malibu, a Controversial Law Brought Together a Zealous Sheriff’s Deputy and an Eccentric Recluse; a Few Seconds Later, Donald Scott Was Dead”
- Wanted: Civil Forfeiture Reform
- “Civil Forfeiture of Women as Innocent Owners and Third Parties”
- United States v. Reese, 1993
- Tainted Cash or Easy Money?
- Policing for Profit, p. 72
- The Drug War’s Profit Motive
The Drug War has gradually unraveled our constitutional rights.
Courts strictly upheld the Fourth Amendment’s protection against unreasonable searches and seizures until the Drug War. The Fourth Amendment was written for good cause. American founders were all too familiar with the tactics used under British colonial rule to search and seize their property for any and every reason. Thus, the Fourth Amendment’s protection against unreasonable searches and seizures.
But then we decided to get “tough on crime.”
I am not a scholar of constitutional law, so if any readers would like to comment on the following jurisprudence that Alexander tackles, please do. Alexander essentially walks us through four decades of SCOTUS decisions, starting in 1968, that have left the Fourth Amendment essentially meaningless. I have read the summaries and skimmed through the text of each of these decisions, but I would love to hear further explanation/elaboration from anyone more familiar with Fourth Amendment law.
Terry v. Ohio, 1968. The history of “Stop-and-Frisk” began in 1968 with the Supreme Court decision in Terry v. Ohio. The ruling allowed police officers to conduct a “limited search” of people deemed suspicious. Douglas dissented. He argued that allowing police to conduct warrantless searches whenever they suspect criminality is contrary to the design of the Fourth Amendment and leads down a “totalitarian path.” Nevertheless, Terry has become a cornerstone in American law. Stops, interrogations, and searches of ordinary people are now commonplace.
Schneckloth v. Bustamonte, 1972. Four years after Terry, the Supreme Court observed that if ordinary people actually understood their right to refuse consent, then “consent searches” would likely never happen. That is, searches and seizures depend upon the ignorance and powerlessness of those involved. As long as ordinary people do not understand their right to refuse, they will comply with an officer’s demands. Therefore, officers are not legally required to inform individuals of their right to refuse.
United States v. Place, 1983. The Court ruled that bags at an airport can be seized without consent and subjected to a “sniff-test” by a drug dog without violating any Fourth Amendment rights.
Florida v. Bostick, 1991. SCOTUS overturned a Florida Supreme Court ruling and upheld suspicion-less bus-sweeping as constitutional. Following the decision, federal officers could legally stop any bus, with or without suspicion, and “sweep” the vehicle for drugs. The Supreme Court argued that a “reasonable person” would know and understand their right to refuse a warrantless search. Therefore, the search is permissible, since a “reasonable person” can refuse the search at any time. Many legal scholars have recognized the absurdity of this “reasonable person test.” One federal judge (Illinois Migrant Council v. Pilliod) observed, “The average person will feel obliged to stop and respond. Few will feel they can walk away or refuse to answer.”
Whren v. United States, 1996. The Supreme Court ruled that law enforcement could use a traffic violation as “pretext” for conducting a warrantless search and seizure. The decision became the legal basis for allowing officers to search the property of any person who commits even the most minor traffic violations.
Ohio v. Robinette, 1996. Further solidifying the decision in Florida v. Bostick (above), the Court ruled that law enforcement officers are not legally required to notify subjects of their “right to leave” prior to conducting a search. The Court reasoned that a search is “voluntary” whether an individual understands his right to leave or not.
Atwater v. City of Lago Vista, 2001. The Court further expanded the power of law enforcement by ruling that police can legally arrest subjects for minor traffic violations without warrant, even if the prescribed penalty for the violation is only a fine. Justice O’Connor dissented, arguing that the decision “neglects the Fourth Amendment’s express command in the name of administrative ease.”
Some Lingering Questions
Once again, the statistics that Alexander cites regarding the explosive percentage of our population under correctional control is shocking. But I am waiting for Alexander to suggest remedies. She points to low prison populations in other countries, but does not engage in any lengthy discussion about the crime policies that exist in those countries, whether they actually work in reducing crime, and whether they could work in the U.S. given our social and political structure. I’m waiting for her to tackle this.
Alexander also implies that the Court essentially abandoned the Fourth Amendment starting in 1968. Have there really been no Supreme Court decisions in the last fifty years that have limited the scope of a search by law enforcement? If this is the case, it’s pretty troubling. I am also wondering how appropriate it is to blame the Supreme Court’s shift almost entirely on getting “tough on crime.” Were there any signs that the Fourth Amendment was being eroded before this period? At the very least, I can believe that getting “tough on crime” certainly accelerated the shift in Fourth Amendment law.
Thoughts for Discussion
Alexander’s most compelling case is that state and federal governments have used the Drug War and “tough-on-crime” policies to expand their power. The evidence she presents is pretty convincing — from the shocking percentage of the population in prison today to the militarization of police and the erosion of civil rights. If anything, this alone is justification for reassessing our approach to drugs and crime.
More concerning, however, is that this expansion of power has disproportionately affected poor people who have relatively few resources to defend themselves. This means that middle-class and higher people, whose collective voices have a much stronger presence in civic and legal affairs, are relatively oblivious to the real consequences of the totalitarian path we are walking.
There also seems to be little evidence to suggest that these trends will be reversed any time soon. If anything, as fear of terror has tightened its grip upon the public imagination, so too has the willingness to sacrifice freedom in the name of safety. Trading away our liberty is entirely possible, and Alexander’s commentary helps to explain just how this can happen. Sacrificing freedom in the name of safety is not really a sacrifice if you have the money and resources to protect your liberties in the first place.
What I mean is that while “limousine-sweeping” sound ridiculous, somehow “bus-sweeping” is okay. Decision-makers and those in power “give away” the liberties of others while retaining those liberties for themselves. SWAT teams searching for drugs commonly bang down the doors of houses in poor communities. But if this happened to the same extent in higher-income neighborhoods, there would be a national outcry. Money is power. In this case, those in power can afford to sacrifice their liberties because they have the resources to protect and defend themselves. Poor people don’t have this luxury.
But as the middle-class shrinks and poverty grows, the number of people with the resources to defend themselves continues to decline.