We have been talking about a portion of that justice system in the last two posts, and now it is important to bring to the foreground what it is about that system that keeps in place an overarching control and denigration of people of color. In spite of the election of the first African-American President of the United States, the system has not changed and will not change until more people of all races are made aware of the controls, the obstacles and the laws that keep certain people in an underclass; what Michele Alexander calls a racial caste system or undercaste.
But first, let Alexander herself set the scene. She tells a short story of several generations of Black men of one family, all born in the United States, who have all been denied the right to vote, starting with the great, great grandfather of Jarvious Cotton who could not vote because he was a slave; “denied the most basic freedom that democracy promises” in our Constitution. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy tests. Jarvious Cotton cannot vote because he, like many black men in the U.S., has been labeled a felon and is currently on parole.
Alexander presents her conclusion of what the Cotton story represents. “In each generation, new tactics have been used for achieving the same goals. The arguments and rationalizations that have been trotted out in support of racial exclusion and discrimination in its various forms have changed and evolved but the outcome has remained largely the same…legally barred from voting…throughout most of American history…subject to legalized discrimination in employment, housing, education, public benefits, and jury service just as their parents, grandparents and great-grandparents once were. Once you’re labeled a felon, the old forms of discrimination…are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America, we have merely redesigned it.”
Since most Americans are reluctant to talk about caste and would insist that America has no such thing, Alexander provides a definition of what she means by racial caste—she uses it “to denote a stigmatized racial group locked into an inferior position by law and custom.” She says, “Jim Crow and slavery were caste systems. So is our current system of mass incarceration.” The term mass incarceration refers “not only to the criminal justice system but also to the larger web of laws, rules, policies and customs that control those labeled criminals both in and out of prison.” There is, whether we recognize it or not, a hidden world of legalized “discrimination and permanent social exclusion” applied to members of America’s new undercaste. She came to see that mass incarceration in the United States had, in fact, emerged "as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.”
At this point, we could venture off in a number of directions. But, one of the items that most caught my attention in the book was how the federal court system has effectively “immunized” the current justice system from challenges on grounds of racial bias and racial profiling which clearly relates to what I have been discussing in the last two posts about policing. What follows is a partial summary of what the federal court system has done to legalize a system of controls that essentially increase the likelihood that more black men will be incarcerated (or even killed) at the hands of our justice system. This is not a fantasy.
“The racial dimension of incarceration is its most striking feature. No other country in the world imprisons so many of its racial or ethnic minorities. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid. It is estimated that three out of four young black men (in Washington DC’s poorest neighborhoods) can expect to serve time in prison. Similar rates of incarceration can be found in black communities across America. These stark racial disparities cannot be explained by rates of drug crime. Studies shows that people of all colors use and sell drugs at remarkably similar rates. Surveys have found that whites, particularly white youth, are more likely to engage in drug crime than people of color. That is not what one would guess when entering our nation’s prisons and jails which are overflowing with black and brown drug offenders, admitted to prison on drug charges at rates twenty to fifty times greater than those of white men.”
Further, even though crime rates continue to decline in our time, and have dipped below the international norm, the US incarceration rate has quadrupled. The US now boasts an incarceration rate that is six to ten times greater than that of other industrialized nations – a development directly traceable to the War on Drugs. “The stark and sobering reality is that, for reasons largely unrelated to actual crime trends, the American penal system has emerged as a system of social control unparalleled in world history.”
One cannot help but ask what is causing this horrendous turnabout when just a few decades ago, academics and criminologists were calling for a moratorium on prison construction? In 1972 there were fewer than 350,000 people in prisons and today there are more than 2 million, even as crime rates decline. If current trends continue, one in three young African American men will end up under the control of the corrections system, including prisons, probation or parole.
Disturbingly, it is well-documented that the judicial system is behind much of this mass incarceration. Decisions that have been made in our courts have exacerbated the racial underpinnings of the War on Drugs so that basic rights and protections are being denied our young men of color in ways that make this a preeminent civil rights issue and not just an issue of lingering racial bias showing up in a few people. We are dealing here with institutional racism in its most pernicious form – the use of law and policy, standards and customs to create a system of racial control that is mostly invisible to the average citizen, but one that ensures the subordinate status of a group defined largely by race.
Here’s how that happens: how legal rules and rulings can guarantee discriminatory results, or as Alexander describes it – how a colorblind criminal justice system achieves such racially discriminatory results. She makes a very strong point that the Supreme Court, “when it came time to devise rules for the War on Drugs, adopted rules that would maximize – not minimize – the amount of racial discrimination that would likely occur.”
She describes the process as having two stages; I’m going to describe it in four phases:
1) The Round-up: stop, search, arrest. In their decision in Whren vs. United States, “the [Supreme] Court held that police officers are free to use minor traffic violations as an excuse to stop motorists for drug investigation, even when there is no evidence whatsoever that the motorist has engaged in drug crime.” So long as a minor traffic violation can actually be identified – such as failing to signal, exceeding the speed limit by a mile or two an hour, tracking improperly between the lines, or having a non-working light – police are free to stop motorists and then go fishing for drugs. That kind of police conduct, said the Court, does not violate the 4th Amendment ban on “unreasonable searches and seizures.”
The petitioners argued that granting police such broad discretion to investigate virtually anyone for drug crimes, “created a high risk that police would exercise this discretion in a racially discriminatory manner.” They called for the Court to prohibit police from stopping motorists unless the police had reason to believe the motorist was committing or had committed an actual drug crime. The Court not only rejected that argument, but went a step further and ruled that claims of racial bias could not be brought under the 4th Amendment.
The Court effectively barred any victim of race discrimination from even alleging a claim of racial bias because whether or not police discriminate on basis of race when making these stops is irrelevant to whether their conduct was reasonable under the 4th Amendment. The Court left one bread crumb for the petitioner and said that victims of race discrimination could still bring a claim under the 14th Amendment which guarantees “equal treatment under the laws.” Unfortunately, the Court has also made it “virtually impossible to challenge racial bias in the criminal justice system under the 14th Amendment, and has barred litigation of such claims under federal civil rights laws as well.”
Because "stop and frisk" has become so well known to New Yorkers especially, I have chosen not to go into detail on this issue. But it needs to be said that such stops are as discriminatory as those for traffic violations, and perhaps more so. Consider this one thought: why do the police constantly patrol low-income, inner city areas, while no such activity exists in the mainly white suburbs of this country? The usual retort is that such city areas are “high crime areas” which simply ignores an equivalent amount of drug crime in the suburbs, and that most crack users are white. "Stop and frisk" in high crime areas is simply equivalent to targeted harassment and arrest of black and brown men, based on racial profiling and stereotyping, all of which has been underwritten and supported by judicial decisions such as Armstrong v. United States. Read the book.
2) Prosecution and plea bargaining. Prosecutors have more power than just about anyone in the justice system. Few rules constrain the exercise of their prosecutorial discretion. They can dismiss a case for any reason; they are free to file more charges against a defendant than can realistically be proven; they can offer just about anything as a plea bargain. They can even transfer drug defendants to the federal system where penalties are much more severe, or transfer juvenile offenders to an adult court from which they can be sent to an adult prison. In fact, there is no manual to follow, and their decisions are totally discretionary and virtually unreviewable. And, the Supreme Court has little interest in assuring that prosecutors perform this extraordinary discretion in a way that is fair and nondiscriminatory.
Did you have any idea that "nearly all criminal cases are resolved through plea bargaining?" Essentially a guilty plea is elicited from the defendant in exchange for some form of leniency by the prosecutor. "Never before in our history...have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe." Choosing "only" three years in prison as compared to going to trial and maybe getting five, ten, or twenty years - even life imprisonment - does not leave the defendant much choice. The prosecutor's ability to "pump up" the volume of charges also comes into play here. "Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause, but which they seriously doubt they could ever win in court."
But prosecutors carry this a step further. As part of the plea bargain, they can also obtain testimony for related cases, encouraging people to snitch on others in return for leniency, often by presenting false testimony. "In fact, under the federal sentencing guidelines, providing 'substantial assistance' is often the only way defendants can hope to obtain a sentence below the mandatory minimum." And guess what? "The U.S. Sentencing Commission itself has noted that the 'value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip..."
The critical point," according to Alexander, "is that thousands of people are swept into the criminal justice system every year pursuant to the drug war without much regard for their guilt or innocence. The police are allowed by the courts to conduct fishing expeditions for drugs on streets and freeways based on nothing more than a hunch. Homes may be searched for drugs based on a tip from an unreliable, confidential informant who is trading the information for money or to escape prison time. And once swept inside the system, people are often denied attorneys or meaningful representation and pressured into plea bargains by the threat of unbelievably harsh sentences. This is the way the roundup works, and it works this way in virtually every major city in the United States."
3) Sentencing. The concept of mandatory sentencing for certain crimes is probably pretty well known, but did you know that harsh mandatory minimum sentences have been consistently upheld by the U.S. Supreme Court? "In 1982, the Supreme Court upheld forty years of imprisonment for possession and an attempt to sell 9 ounces of marijuana. Several years later, in Harmelin v. Michigan, the Court upheld a sentence of life imprisonment for a defendant with no prior convictions who attempted to sell 672 grams (approximately 23 ounces) of crack cocaine." The Court said that the sentences imposed were 'reasonably proportionate' to the offenses committed, but were not 'cruel and unusual' in violation of the 8th Amendment. Interesting fact: prior to the Drug Reform Act of 1986, the longest sentence ever imposed for possession of a drug was one year! "A life sentence for a first-time drug offense is unheard of in the rest of the developed world."
Perhaps the most famous Supreme Court case upholding mandatory minimum sentences is Lockyer v. Andrade. In that case, the Court rejected constitutional challenges to sentences of 25 years without parole in the case of some rather minor examples of stealing. Since this decision was pursuant to the three-strike law in California, the Court in essence gave other states the green light to pass such laws. These mandatory sentencing laws are often justified as necessary to keep "violent criminals" off the streets, but those penalties are imposed most often against those who are found guilty of nonviolent crimes, often involving drug-related crimes. What we have here is an absurdity. Even Justice Souter in dissenting to the majority opinion in Andrade retorted, "If Andrade's sentence [for stealing videotapes] is not grossly disproportionate, the principle has no meaning."
The point is: this is a prime example of how a constitutional principle can become meaningless for protecting a minority from the tyranny of a majority. Most of those subject to harsh mandatory sentences in the federal system are drug offenders - low-level dealers, not 'king-pins.' And, once again, the largest numbers of offenders corralled into the justice system are black men. Ergo: the Court established one more institutionalized way to control and divest black and brown men of any right to redress of their biased treatment.
According to Alexander, when media hysteria was at fever pitch regarding black drug crime in 1987, and evening news was saturated with images of black criminals shackled in courtrooms, the Supreme Court went all out in McCleskey v. Kemp to declare that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the 14th Amendment “in the absence of clear evidence of conscious, discriminatory intent.” It became clear that the Supreme Court would tolerate racial bias in the criminal justice system as a whole, so long as no one admitted it. The petitioner used the well-known report of great disparity in the execution of black defendants who killed white victims as distinguished from whites who killed black persons. According to Alexander, the statistical evidence of discrimination in the Baldus Report was the strongest ever presented to a court regarding race and criminal sentencing. By a one-vote margin, the Court rejected McCleskey’s claims under the 14th Amendment, claiming that he had not proven that the prosecutor in his case had sought the death penalty because of race or that the jury had imposed the death sentence for racial reasons, and that statistical evidence of “patterns” did not prove unequal treatment under the law.
Her conclusion: “In erecting this high standard, the Court knew full well that the standard could not be met absent an admission from a prosecutor or judge that they acted because of racial bias.” Moreover, the evidence of deliberate bias in an individual case would almost always be unavailable or inadmissible due to procedural rules that shield jurors and prosecutors from such scrutiny. Of little concern to them, the Court “closed the Courthouse door to claims of racial bias in sentencing.” At the end of the majority opinion, the Court stated that “discretion” plays a necessary role in the implementation of the justice system, and that “discrimination is an inevitable by-product of discretion.” Apparently, the conclusion of the Court is that racial discrimination must simply be tolerated as a necessary part of the entire judicial system!
Following McCleskey, the claim that disparity in sentencing for those found guilty of using or selling powdered cocaine versus crack cocaine was racially based got nowhere, and lower courts consistently rejected claims of racial discrimination in the absence of explicit evidence of such. Few challenges to sentencing schemes, patterns or results have been brought since McCleskey because it is a futile exercise. In 1995, some brave lawyers challenged Georgia’s two strikes and you’re out sentencing scheme – 98.4% of those serving life sentences under this provision were black. The Georgia Supreme Court ruled that a case of discrimination had been made and directed prosecutors to offer a race neutral explanation for the results. Instead, the Georgia Attorney General filed a petition for rehearing the case, which was also signed by all the district attorneys in the state who happened to be white. Thirteen days later, the Georgia Supreme Court reversed itself basing its decision 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.”
4) Release: restrictions & prohibitions. "Once a person is labeled a 'felon', he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal, and privileges of citizenship are off-limits. It does not matter whether you have spent time in prison; your second-class citizenship begins the moment you are branded a felon." Let us count the ways:
- barred from public housing by law
- discriminated against by private landlords
- ineligible for food stamps
- forced to "check the box" indicating a felony conviction for nearly any job application
- denied licenses for a broad range of professions
- locked out of the mainstream society and economy on a permanent basis
- regular surveillance and monitoring by the police
- governed by additional rules on travel and behavior (such as association with other felons)
- paying fines and meeting with probation (or parole) officers - miss a meeting and one might be arrested
- failing to cope well with one's exile status
As Michelle Alexander has shown, and as I have tried to summarize and illuminate, the Supreme Court decisions since the early 1980's have helped to reinforce a structure of bias and profound discrimination against persons of color (without ever addressing race as an issue), such that our system of justice has become a bastion of social control over African Americans, in particular. Just as the Court did with Citizens United, turning freedom of speech into acceptable political bribery, so they have turned amendments to protect rights and freedoms - such as search & seizure, cruel & unusual punishment, and equal protection under the law - into vehicles for outright discrimination against and control of, a minority population.
Virtually all constitutionally protected civil rights have been undermined by the so-called War on Drugs. For example, it was not too long ago that the police could not stop and search someone without a warrant unless there was 'probable cause' to believe that the individual was engaged in some criminal activity - a basic 4th Amendment principle. That is no longer true in our society due to decisions of the Supreme Court beginning with a modification in Terry v. Ohio in 1968 known as the 'stop and frisk' rule. Justice Douglas in his dissent on Terry warned that "granting police greater power than a magistrate [judge] is to take a long step down the totalitarian path." This is what communities populated mainly by people of color put up with every day: an abrogation of their rights and freedoms and a growing control over their opportunities and social welfare - all with a legal base to support such actions.
We have been remiss in believing that courts are somehow sacrosanct. They are not. And they deserve now a retribution that has long been lacking on the American scene: they deserve our contempt for allowing institutional racism to flourish in our justice system. The dirty little secrets of their decisions need to be displayed for all to see for they have actually granted or approved:
- a license to discriminate to police,
- a license to deceive and manipulate offenders for prosecutors,
- the right to reject applicants to employers and housing authorities.
- mandatory drug testing for employees and students;
- random searches and sweeps of public schools and students,
- police obtaining search warrants based on anonymous tips;
- expanded government wiretapping authority,
- the use of paid unidentified informants by police and prosecutors,
- the use of helicopter surveillance of homes without a warrant,
- the forfeiture of cash, homes, and other property based on unproven allegations of illegal drug activity.