Authors: Michelle Alexander
The New Jim Crow (22 page)
Given how flagrantly prosecutors were violating
Batson
’s ban on race discrimination in jury selection, it was reasonable to hope that, if presented with a particularly repugnant case, the Supreme Court might be willing to draw the line at practices that make a mockery of the antidiscrimination principle. Granted, the Court had been unwilling to accept statistical proof of race discrimination in sentencing in
McCleskey
, and it had brushed off concerns of racial bias in discretionary police stops in
Whren
, and it had granted virtual immunity to prosecutors in their charging decisions in
Armstrong
, but would it go so far as to allow prosecutors to offer blatantly absurd, downright laughable excuses for striking blacks from juries? It turns out the answer was yes.
Batson
’s ban on race discrimination in jury selection, it was reasonable to hope that, if presented with a particularly repugnant case, the Supreme Court might be willing to draw the line at practices that make a mockery of the antidiscrimination principle. Granted, the Court had been unwilling to accept statistical proof of race discrimination in sentencing in
McCleskey
, and it had brushed off concerns of racial bias in discretionary police stops in
Whren
, and it had granted virtual immunity to prosecutors in their charging decisions in
Armstrong
, but would it go so far as to allow prosecutors to offer blatantly absurd, downright laughable excuses for striking blacks from juries? It turns out the answer was yes.
In
Purkett v. Elm
, in 1995, the Supreme Court ruled that any race-neutral reason, no matter how silly, ridiculous, or superstitious, is enough to satisfy the prosecutor’s burden of showing that a pattern of striking a particular racial group is not, in fact, based on race. In that case, the prosecutor offered the following explanation to justify his strikes of black jurors:
Purkett v. Elm
, in 1995, the Supreme Court ruled that any race-neutral reason, no matter how silly, ridiculous, or superstitious, is enough to satisfy the prosecutor’s burden of showing that a pattern of striking a particular racial group is not, in fact, based on race. In that case, the prosecutor offered the following explanation to justify his strikes of black jurors:
I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared not to be a good juror for that fact.... Also, he had a mustache and a goatee type beard. And juror number twenty-four also had a mustache and goatee type beard.... And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.
74
The Court of Appeals for the Eighth Circuit ruled that the foregoing explanation for the prosecutor’s strikes of black jurors was insufficient and should have been rejected by the trial court because long hair and facial hair are not plausibly related to a person’s ability to perform as a juror. The appellate court explained: “Where the prosecution strikes a prospective juror who is a member of the defendant’s racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the prosecution must at least articulate some plausible race neutral reason for believing that those factors will somehow affect the person’s ability to perform his or her duties as a juror.”
75
75
The U.S. Supreme Court reversed, holding that when a pattern of race-based strikes has been identified by the defense, the prosecutor need not provide “an explanation that is persuasive, or even plausible.”
76
Once the reason is offered, a trial judge may choose to believe (or disbelieve) any “silly or superstitious” reason offered by prosecutors to explain a pattern of strikes that appear to be based on race.
77
The Court sent a clear message that appellate courts are largely free to accept the reasons offered by a prosecutor for excluding prospective black jurors—no matter how irrational or absurd the reasons may seem.
The Occupation—Policing the Enemy76
Once the reason is offered, a trial judge may choose to believe (or disbelieve) any “silly or superstitious” reason offered by prosecutors to explain a pattern of strikes that appear to be based on race.
77
The Court sent a clear message that appellate courts are largely free to accept the reasons offered by a prosecutor for excluding prospective black jurors—no matter how irrational or absurd the reasons may seem.
The Court’s blind eye to race discrimination in the criminal justice system has been especially problematic in policing. Racial bias is most acute at the point of entry into the system for two reasons: discretion and authorization. Although prosecutors, as a group, have the greatest power in the criminal justice system, police have the greatest discretion—discretion that is amplified in drug-law enforcement. And unbeknownst to the general public, the Supreme Court has actually authorized race discrimination in policing, rather than adopting legal rules banning it.
Racially biased police discretion is key to understanding how the overwhelming majority of people who get swept into the criminal justice system in the War on Drugs turn out to be black or brown, even though the police adamantly deny that they engage in racial profiling. In the drug war, police have discretion regarding whom to target (which individuals), as well as where to target (which neighborhoods or communities). As noted earlier, at least 10 percent of Americans violate drug laws every year, and people of all races engage in illegal drug activity at similar rates. With such an extraordinarily large population of offenders to choose from, decisions must be made regarding who should be targeted and where the drug war should be waged.
From the outset, the drug war could have been waged primarily in overwhelmingly white suburbs or on college campuses. SWAT teams could have rappelled from helicopters in gated suburban communities and raided the homes of high school lacrosse players known for hosting coke and ecstasy parties after their games. The police could have seized televisions, furniture, and cash from fraternity houses based on an anonymous tip that a few joints or a stash of cocaine could be found hidden in someone’s dresser drawer. Suburban homemakers could have been placed under surveillance and subjected to undercover operations designed to catch them violating laws regulating the use and sale of prescription “uppers.” All of this could have happened as a matter of routine in white communities, but it did not.
Instead, when police go looking for drugs, they look in the ’hood. Tactics that would be political suicide in an upscale white suburb are not even newsworthy in poor black and brown communities. So long as mass drug arrests are concentrated in impoverished urban areas, police chiefs have little reason to fear a political backlash, no matter how aggressive and warlike the efforts may be. And so long as the number of drug arrests increases or at least remains high, federal dollars continue to flow in and fill the department’s coffers. As one former prosecutor put it, “It’s a lot easier to go out to the ’hood, so to speak, and pick somebody than to put your resources in an undercover [operation in a] community where there are potentially politically powerful people.”
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The hypersegregation of the black poor in ghetto communities has made the roundup easy. Confined to ghetto areas and lacking political power, the black poor are convenient targets. Douglas Massey and Nancy Denton’s book,
American Apartheid
, documents how racially segregated ghettos were deliberately created by federal policy, not impersonal market forces or private housing choices.
79
The enduring racial isolation of the ghetto poor has made them uniquely vulnerable in the War on Drugs. What happens to them does not directly affect—and is scarcely noticed by—the privileged beyond the ghetto’s invisible walls. Thus it is here, in the poverty-stricken, racially segregated ghettos, where the War on Poverty has been abandoned and factories have disappeared, that the drug war has been waged with the greatest ferocity. SWAT teams are deployed here; buy-and-bust operations are concentrated here; drug raids of apartment buildings occur here; stop-and-frisk operations occur on the streets here. Black and brown youth are the primary targets. It is not uncommon for a young black teenager living in a ghetto community to be stopped, interrogated, and frisked numerous times in the course of a month, or even a single week, often by paramilitary units. Studies of racial profiling typically report the total number of people stopped and searched, disaggregated by race. These studies have led some policing experts to conclude that racial profiling is actually “worse” in white communities, because the racial disparities in stop and search rates are much greater there. What these studies do not reveal, however, is the frequency with which any given individual is likely to be stopped in specific, racially defined neighborhoods.
American Apartheid
, documents how racially segregated ghettos were deliberately created by federal policy, not impersonal market forces or private housing choices.
79
The enduring racial isolation of the ghetto poor has made them uniquely vulnerable in the War on Drugs. What happens to them does not directly affect—and is scarcely noticed by—the privileged beyond the ghetto’s invisible walls. Thus it is here, in the poverty-stricken, racially segregated ghettos, where the War on Poverty has been abandoned and factories have disappeared, that the drug war has been waged with the greatest ferocity. SWAT teams are deployed here; buy-and-bust operations are concentrated here; drug raids of apartment buildings occur here; stop-and-frisk operations occur on the streets here. Black and brown youth are the primary targets. It is not uncommon for a young black teenager living in a ghetto community to be stopped, interrogated, and frisked numerous times in the course of a month, or even a single week, often by paramilitary units. Studies of racial profiling typically report the total number of people stopped and searched, disaggregated by race. These studies have led some policing experts to conclude that racial profiling is actually “worse” in white communities, because the racial disparities in stop and search rates are much greater there. What these studies do not reveal, however, is the frequency with which any given individual is likely to be stopped in specific, racially defined neighborhoods.
The militarized nature of law enforcement in ghetto communities has inspired rap artists and black youth to refer to the police presence in black communities as “The Occupation.” In these occupied territories, many black youth automatically “assume the position” when a patrol car pulls up, knowing full well that they will be detained and frisked no matter what. This dynamic often comes as a surprise to those who have spent little time in ghettos. Craig Futterman, a law professor at the University of Chicago, reports that his students frequently express shock and dismay when they venture into those communities for the first time and witness the distance between abstract legal principles and actual practice. One student reported, following her ride-along with Chicago police: “Each time we drove into a public housing project and stopped the car, every young black man in the area would almost reflexively place his hands up against the car and spread his legs to be searched. And the officers would search them. The officers would then get back in the car and stop in another project, and this would happen again. This repeated itself throughout the entire day. I couldn’t believe it. This was nothing like we learned in law school. But it just seemed so normal—for the police and the young men.”
Numerous scholars (and many law enforcement officials) attempt to justify the concentration of drug law enforcement resources in ghetto communities on the ground that it is easier for the police to combat illegal drug activity there. The theory is that black and Latino drug users are more likely than white users to obtain illegal drugs in public spaces that are visible to the police, and therefore it is more efficient and convenient for the police to concentrate their efforts on open-air drug markets in ghetto communities. Sociologists have been major proponents of this line of reasoning, pointing out that differential access to private space influences the likelihood that criminal behavior will be detected. Because poor people lack access to private space (often sharing small apartments with numerous family members or relatives), their criminal activity is more likely to be conducted outdoors. Concentrating law enforcement efforts in locations where drug activity will be more easily detected is viewed as a race-neutral organizational necessity. This argument is often buttressed by claims that most citizen complaints about illegal drug activity come from ghetto areas, and that the violence associated with the drug trade occurs in inner cities. These facts, drug war defenders claim, make the decision to wage the drug war almost exclusively in poor communities of color an easy and logical choice.
This line of reasoning is weaker than it initially appears. Many law enforcement officials acknowledge that the demand for illegal drugs is so great—and the lack of alternative sources of income so few in ghetto communities—that “if you take one dealer off the street, he’ll be replaced within an hour.” Many also admit that a predictable consequence of breaking up one drug ring is a slew of violence as others fight for control of the previously stabilized market.
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These realities suggest—if the past two decades of endless war somehow did not—that the drug war is doomed to fail. They also call into question the legitimacy of “convenience” as an excuse for the mass imprisonment of black and brown men in ghetto communities.
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These realities suggest—if the past two decades of endless war somehow did not—that the drug war is doomed to fail. They also call into question the legitimacy of “convenience” as an excuse for the mass imprisonment of black and brown men in ghetto communities.
Even putting aside such concerns, though, recent research indicates that the basic assumptions upon which drug war defenses typically rest are simply wrong. The conventional wisdom—that “get tough” tactics are a regrettable necessity in poor communities of color and that efficiency requires the drug war to be waged in the most vulnerable neighborhoods—turns out to be, as many have long suspected, nothing more than wartime propaganda, not sound policy.
Unconventional WisdomIn 2002, a team of researchers at the University of Washington decided to take the defenses of the drug war seriously, by subjecting the arguments to empirical testing in a major study of drug-law enforcement in a racially mixed city—Seattle.
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The study found that, contrary to the prevailing “common sense,” the high arrest rates of African Americans in drug-law enforcement could not be explained by rates of offending; nor could they be explained by other standard excuses, such as the ease and efficiency of policing open-air drug markets, citizen complaints, crime rates, or drug-related violence. The study also debunked the assumption that white drug dealers deal indoors, making their criminal activity more difficult to detect.
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The study found that, contrary to the prevailing “common sense,” the high arrest rates of African Americans in drug-law enforcement could not be explained by rates of offending; nor could they be explained by other standard excuses, such as the ease and efficiency of policing open-air drug markets, citizen complaints, crime rates, or drug-related violence. The study also debunked the assumption that white drug dealers deal indoors, making their criminal activity more difficult to detect.
The authors found that it was untrue stereotypes about crack markets, crack dealers, and crack babies—not facts—that were driving discretionary decision making by the Seattle Police Department. The facts were as follows: Seattle residents were far more likely to report suspected narcotics activities in residences—not outdoors—but police devoted their resources to open-air drug markets and to the one precinct that was
least
likely to be identified as the site of suspected drug activity in citizen complaints. In fact, although hundreds of outdoor drug transactions were recorded in predominantly white areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transactions was much lower. In racially mixed open-air drug markets, black dealers were far more likely to be arrested than whites, even though white dealers were present and visible. And the department focused overwhelmingly on crack—the one drug in Seattle more likely to be sold by African Americans—despite the fact that local hospital records indicated that overdose deaths involving heroin were more numerous than all overdose deaths for crack and powder cocaine combined. Local police acknowledged that no significant level of violence was associated with crack in Seattle and that other drugs were causing more hospitalizations, but steadfastly maintained that their deployment decisions were nondiscriminatory.
least
likely to be identified as the site of suspected drug activity in citizen complaints. In fact, although hundreds of outdoor drug transactions were recorded in predominantly white areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transactions was much lower. In racially mixed open-air drug markets, black dealers were far more likely to be arrested than whites, even though white dealers were present and visible. And the department focused overwhelmingly on crack—the one drug in Seattle more likely to be sold by African Americans—despite the fact that local hospital records indicated that overdose deaths involving heroin were more numerous than all overdose deaths for crack and powder cocaine combined. Local police acknowledged that no significant level of violence was associated with crack in Seattle and that other drugs were causing more hospitalizations, but steadfastly maintained that their deployment decisions were nondiscriminatory.
The study’s authors concluded, based on their review and analysis of the empirical evidence, that the Seattle Police Department’s decisions to focus so heavily on crack, to the near exclusion of other drugs, and to concentrate its efforts on outdoor drug markets in downtown areas rather than drug markets located indoors or in predominantly white communities, reflect “a racialized conception of the drug problem.”
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As the authors put it: “[The Seattle Police Department’s] focus on black and Latino individuals and on the drug most strongly associated with ‘blackness’ suggest that law enforcement policies and practices are predicated on the assumption that the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.’”
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This racialized cultural script about who and what constitutes the drug problem renders illegal drug activity by whites invisible. “White people,” the study’s authors observed, “are simply not perceived as drug offenders by Seattle police officers.”
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As the authors put it: “[The Seattle Police Department’s] focus on black and Latino individuals and on the drug most strongly associated with ‘blackness’ suggest that law enforcement policies and practices are predicated on the assumption that the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.’”
83
This racialized cultural script about who and what constitutes the drug problem renders illegal drug activity by whites invisible. “White people,” the study’s authors observed, “are simply not perceived as drug offenders by Seattle police officers.”
84
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