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The New Jim Crow

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” We may think we know how the criminal justice system works. Television is overloaded with fictional dramas about police, crime, and prosecutors¬≠ shows such as Law & Order. These fictional dramas, like the evening news, tend to focus on individual stories of crime, victimization, and punishment, and the stories are typically told from the point of view of law enforcement. A charismatic police officer, investigator, or prosecutor struggles with his own demons while heroically trying to solve a horrible crime. He ultimately achieves a personal and moral victory by finding the bad guy and throwing him in jail. That is the made-for-lV version of the criminal justice system. It perpetuates the myth that the primary function of the system is to keep our streets safe and our homes secure by rooting out dangerous criminals and punishing them.

These television shows, especially those that romanticize drug-law enforcement, are the modern-day equivalent of the old movies por¬≠ traying happy slaves, the fictional gloss placed on a brutal system of racial¬≠ ized oppression and control. Those who have been swept within the criminal justice system know that the way the system actually works bears little resemblance to what happens on television or in movies. Full-blown trials of guilt or innocence rarely oc¬≠ cur; many people never even meet with an attorney; witnesses are routinely paid and coerced by the government; police regularly stop and search people for no reason whatsoever; penalties for many crimes are so severe that inno¬≠ cent people¬†plead guilty, accepting plea bargains to avoid harsh mandatory sentences; and children, even as young as fourteen, are sent to adult prisons. Rules of law and procedure, such as “guilt beyond a reasonable doubt” o “probable cause” or “reasonable suspicion,” can easily be found in cou cases and law-school textbooks but are much harder to find in real life.

In this chapter, we shall see how the system of mass incarceration actuall works. Our focus is the War on Drugs. The reason is simple: Convictions fo drug offenses are the single most important cause of the explosion in incar ceration rates in the United States. Drug offenses alone account for two-. thirds of the rise in the federal inmate population and more than half of the rise in state prisoners between 1985 and 2000.  Approximately a half-i; million people are in prison or jail for a drug offense today, compared to an;; estimated 41, 100 in 1980-an increase of 1,100 percent.  Drug arrests have; tripled since 1980. As a result, more than 31 million people have been ar-; rested for drug offenses since the drug war began. 3To put the matter in per. spective, consider this: there are more people in prisons and jails today just;( for drug offenses than were incarcerated for all reasons in 1980.

Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the War on Drugs. Before we begin our tour of the drug war, it is worthwhile to get a couple of myths out of the way. The first is that the war is aimed at ridding the nation of drug “kingpins” or big-time dealers. Nothing could be further from the truth. The vast majority of those arrested are not charged with serious offenses. In 2005, for example, four out of five drug arrests were for possession, and only one out of five was for sales. Moreover, most people in state prison for drug offenses have no history of violence or significant selling activity. The second myth is that the drug war is principally concerned with dan¬≠ gerous drugs. Quite to the contrary, arrests for marijuana possession-a drug less harmful than tobacco or alcohol-accounted for nearly 80 percent of the growth in drug arrests in the 1990s.

Despite the fact that most drug ar¬≠ rests are for nonviolent minor offenses, the War on Drugs has ushered in an era of unprecedented punitiveness. The percentage of drug arrests that result in prison sentences (rather than dismissal, community service, or probation) has quadrupled, resulting in a prison-building boom the likes of which the¬†world has never seen. In two short decades, between 1980 and 2000, the number of people incarcerated in our nation’s prisons and jails soared from roughly 300,000 to more than 2 million. By the end of 2007, more than 7 million Americans-or one in every 31 adults-were behind bars, on probation, or on parole.

We begin our exploration of the drug war at the point of entry-arrest by e police-and then consider how the system of mass incarceration is structured to reward mass drug arrests and facilitate the conviction and impirisonment of an unprecedented number of Americans, whether guilty or innocent. In subsequent chapters, we will consider how the system specifi1ally targets people of color and then relegates them to a second-class status ,,.. alogous to Jim Crow. At this point, we simply take stock of the means by ‘‚ÄĘ hich the War on Drugs facilitates the roundup and lockdown of an extraor¬≠ “inary percentage of the U.S. population.

Rules of the Game

Few legal rules meaningfully constrain the police in the War on Drugs. This imay sound like an overstatement, but upon examination it proves accurate. The absence of significant constraints on the exercise of police discretion is a key feature of the drug war’s design. It has made the roundup of millions ,of Americans for nonviolent drug offenses relatively easy. With only a few exceptions, the Supreme Court has seized every oppor¬≠tunity to facilitate the drug war, primarily by eviscerating Fourth Amendment protections against unreasonable searches and seizures by the police. The rollback has been so pronounced that some commentators charge that a vir tual “drug exception” now exists to the Bill of Rights. Shortly before his death, Justice Thurgood Marshall felt compelled to remind his colleagues that there is, in fact, “no drug exception” written into the text of the Constitution. 8 Most Americans do not know what the Fourth Amendment of the U.S. Constitution actually says or what it requires of the police. It states, in its entirety

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Courts and scholars agree that the Fourth Amendment governs all searches and seizures by the police and that the amendment was adopted in response to the English practice of conducting arbitrary searches under general war¬≠ rants to uncover seditious libels. The routine police harassment, arbitrary searches, and widespread police intimidation of those subject to English ru le helped to inspire the Ameri can Revolu tion. Not surprisingly, then, pre¬≠ venting arbitrary searches and seizures by the police was deemed by the Founding Fathers an essential element of the U.S. Constit ution. Until the War on Drugs, courts had been fairly stringent about enforcing the Fourth Amendment’s req uirements. Within a few years after the drug war was declared, however, many legal scholars noted a sharp turn in the Supreme Court’s Fourth Amendment ju¬≠ risprudence. By the close of the Supreme Court’s 1990-91 term, it had be¬≠ come clear that a major shift in the relationship between the citizens of this country and the police was under way.

Justice Stevens noted the trend in a powerfu l dissent issued in California v. Acevedo, a case upholding the war¬≠ rantless search of a bag locked in a motorist’s trunk: In the years [from 1982 to 199l ], t he Court has heard argu ment in 30 Fourth Amendment cases involving narcotics. ln alI but one, the govern¬≠ ment was the petitioner. All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Comt upheld the constitutionality of the search or seizure. In the meantime, the flow of narcotics cases through the courts has stead ily and dramatically increased. No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has be¬≠ come a loyal foot soldier in the Executive’s fight against crime.9 The Fourth Amendment is but one example.

Virtually all const itutionally protected civil liberties have been undermined by the drug war. The Court has been busy in recent years approving mandatory drug testing of employees and students, u pholding random searches and sweeps of pu blic schools and stu¬≠ dents, permit ting police to obtain search warrants based on an anonymous informant’s tip, expanding the government’s wiretapping¬†authority, legit imat¬≠ ing the use of paid, u nidentified informants by police and prosecu tors, approv¬≠ ing the use of helicopter surveillance of homes without a warrant, and allowing the forfeiture of cash, homes, and other property based on unproven allega¬≠ tions of illegal drug activity.

For our pu rposes here, we limit our focus to the legal rules crafted by the Supreme Court that grant law enforcement a pecunia ry interest in the drug war and make it relatively easy for the police to seize people virtually anywhere–on public streets and sidewalks, on buses, airplanes and trains, or any other public place–and usher them behind bars. These new legal rules have ensured that anyone, virtually anywhere, for any reason, can be¬≠ come a target of drug-law enforcement activity.

Unreasonable Suspicion

Once u pon a time, it was generally understood that the police could not stop and search someone ‘Nithou t a warrant u nless there was probable cause to believe that the individual was engaged in criminal activity. That was a basic Fourth Amendment principle. In Terry v. Ohio, decided in l 968, the Su¬≠ preme Court modified that understanding, but only modestly, by ruling that if and when a police officer observes unusual conduct by someone the offi¬≠ cer reasonably believes to be dangerous and engaged in criminal activity, the officer “is entitled for the protection of himself and others in the area” to conduct a limited search “to discover weapons that might be used against the officer.”1¬į Known as the stop-and-frisk rule, the Terry decision stands for the proposition that, so long as a police officer has “reasonable articulable suspicion” that someone is engaged in criminal activity and dangerous, it is constit utionally permissible to stop, question, and frisk him or her–even in the absence of probable cause. J ustice Douglas dissented in Jerry on the grounds that “grant[ing] police greater power than a magistrate [judge] is to take a long step down the totali¬≠ taria n path.”

11 r-Ie objected to the notion that police should be free to con¬≠ duct warrantless searches whenever they suspect someone is a criminal, believing that dispensing with the Fourth Amendment’s warrant require¬≠ ment risked opening the door to the same abuses that gave rise to the Ameri¬≠ can Revolu tion. His voice was a lonely one. Most¬†commentators at the time agreed that affording police the power and discretion to protect themselves during an encounter with someone they believed to be a dangerous criminal is not “unreasonable” under the Fourth Amendment. History suggests Justice Douglas had the better of the argument.

In the years since Terry, stops, interrogations, and searches of ordinary people driving down the street, walking home from the bus stop, or riding the train, have become commonplace-at least for people of color. As Douglas suspected, the Court in Terry had begun its slide down a very slippery slope. To¬≠ day it is no longer necessary for the police to have any reason to believe that people are engaged in criminal activity or actually dangerous to stop and search them. As long as you give “consent,” the police can stop, interrogate, and search you for any reason or no reason at all.

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