Authors: Michelle Alexander
The New Jim Crow (47 page)
14
Bruce Western,
Punishment and Inequality
(New York: Russell Sage Foundation, 2006), 47.
Bruce Western,
Punishment and Inequality
(New York: Russell Sage Foundation, 2006), 47.
15
Researchers have found that drug users are most likely to report using as a main source for drugs someone who is of their own racial or ethnic background. See, e.g., K. Jack Riley,
Crack, Powder Cocaine and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities
(Washington, DC: National Institute of Justice, Dec. 1997), 1; see also George Rengert and James LeBeau, “The Impact of Ethnic Boundaries on the Spatial Choice of Illegal Drug Dealers,” paper presented at the annual meeting of the American Society of Criminology, Atlanta, Georgia, Nov. 13, 2007 (unpublished manuscript), finding that most illegal drug dealers sell in their own neighborhood and that a variety of factors influence whether dealers are willing to travel outside their home community.
Researchers have found that drug users are most likely to report using as a main source for drugs someone who is of their own racial or ethnic background. See, e.g., K. Jack Riley,
Crack, Powder Cocaine and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities
(Washington, DC: National Institute of Justice, Dec. 1997), 1; see also George Rengert and James LeBeau, “The Impact of Ethnic Boundaries on the Spatial Choice of Illegal Drug Dealers,” paper presented at the annual meeting of the American Society of Criminology, Atlanta, Georgia, Nov. 13, 2007 (unpublished manuscript), finding that most illegal drug dealers sell in their own neighborhood and that a variety of factors influence whether dealers are willing to travel outside their home community.
16
See Rafik Mohamed and Erik Fritsvold, “Damn, It Feels Good to Be a Gangsta: The Social Organization of the Illicit Drug Trade Servicing a Private College Campus,”
Deviant Behavior
27 (2006): 97-125.
See Rafik Mohamed and Erik Fritsvold, “Damn, It Feels Good to Be a Gangsta: The Social Organization of the Illicit Drug Trade Servicing a Private College Campus,”
Deviant Behavior
27 (2006): 97-125.
17
See Ralph Weisheit,
Domestic Marijuana: A Neglected Industry
(Westport, CT: Greenwood, 1992); and Ralph Weisheit, David Falcone, and L. Edward Wells,
Crime and Policing in Rural and Small-Town America
(Prospect Heights, IL: Wave-land, 1996).
See Ralph Weisheit,
Domestic Marijuana: A Neglected Industry
(Westport, CT: Greenwood, 1992); and Ralph Weisheit, David Falcone, and L. Edward Wells,
Crime and Policing in Rural and Small-Town America
(Prospect Heights, IL: Wave-land, 1996).
18
Patricia Davis and Pierre Thomas, “In Affluent Suburbs, Young Users and Sellers Abound,”
Washington Post
, Dec. 14, 1997.
Patricia Davis and Pierre Thomas, “In Affluent Suburbs, Young Users and Sellers Abound,”
Washington Post
, Dec. 14, 1997.
19
Human Rights Watch, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” HRW 12, no. 2 ( May 2000).
Human Rights Watch, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” HRW 12, no. 2 ( May 2000).
20
PEW Center on the States,
One in 100: Behind Bars in America 2008
(Feb. 2008)—data analysis is based on statistics for midyear 2006 published by the U.S. Department of Justice in June 2007.
PEW Center on the States,
One in 100: Behind Bars in America 2008
(Feb. 2008)—data analysis is based on statistics for midyear 2006 published by the U.S. Department of Justice in June 2007.
21
Ibid.; Pew Center on the States,
One in 31: The Long Reach of American Corrections
(Washington, DC: Pew Charitable Trusts, Mar. 2009).
Ibid.; Pew Center on the States,
One in 31: The Long Reach of American Corrections
(Washington, DC: Pew Charitable Trusts, Mar. 2009).
22
Howard Schuman, Charlotte Steeh, Lawrence Bobo, and Maria Krysan,
Racial Attitudes in America: Trends and Interpretations
(Cambridge, MA: Harvard University Press, 1985).
Howard Schuman, Charlotte Steeh, Lawrence Bobo, and Maria Krysan,
Racial Attitudes in America: Trends and Interpretations
(Cambridge, MA: Harvard University Press, 1985).
23
See, e.g., Marc Mauer,
Race to Incarcerate
(New York: The New Press, 1999), 28-35, 92-112.
See, e.g., Marc Mauer,
Race to Incarcerate
(New York: The New Press, 1999), 28-35, 92-112.
24
Ibid.
Ibid.
25
Katherine Beckett and Theodore Sasson,
The Politics of Injustice: Crime and Punishment in America
(Thousand Oaks, CA: Sage Publications, 2004), 22.
Katherine Beckett and Theodore Sasson,
The Politics of Injustice: Crime and Punishment in America
(Thousand Oaks, CA: Sage Publications, 2004), 22.
26
Cities with similar demographic profiles often have vastly different drug arrest and conviction rates—not because of disparities in drug crime but rather because of differences in the amount of resources dedicated to drug law enforcement. Ryan S. King,
Disparity by Geography: The War on Drugs in America’s Cities
(Washington, DC: Sentencing Project, Mar. 2008).
Cities with similar demographic profiles often have vastly different drug arrest and conviction rates—not because of disparities in drug crime but rather because of differences in the amount of resources dedicated to drug law enforcement. Ryan S. King,
Disparity by Geography: The War on Drugs in America’s Cities
(Washington, DC: Sentencing Project, Mar. 2008).
27
Substance Abuse and Mental Health Services Administration,
Results from the 2002 National Survey on Drug Use and Health: Detailed Tables, Prevalence Estimates, Standard Errors and Sample Sizes
(Washington, DC: Office of National Drug Control Policy, 2003), table 34.
Substance Abuse and Mental Health Services Administration,
Results from the 2002 National Survey on Drug Use and Health: Detailed Tables, Prevalence Estimates, Standard Errors and Sample Sizes
(Washington, DC: Office of National Drug Control Policy, 2003), table 34.
28
Jimmie Reeves and Richard Campbell,
Cracked Coverage: Television News, the Anti-Cocaine Crusade and the Reagan Legacy
(Durham, NC: Duke University Press, 1994).
Jimmie Reeves and Richard Campbell,
Cracked Coverage: Television News, the Anti-Cocaine Crusade and the Reagan Legacy
(Durham, NC: Duke University Press, 1994).
29
David Jernigan and Lori Dorfman, “Visualizing America’s Drug Problems: An Ethnographic Content Analysis of Illegal Drug Stories on the Nightly News,”
Contemporary Drug Problems
23 (1996): 169, 188.
David Jernigan and Lori Dorfman, “Visualizing America’s Drug Problems: An Ethnographic Content Analysis of Illegal Drug Stories on the Nightly News,”
Contemporary Drug Problems
23 (1996): 169, 188.
30
Rick Szykowny, “No Justice, No Peace: An Interview with Jerome Miller,”
Humanist
, Jan.-Feb. 1994, 9-19.
Rick Szykowny, “No Justice, No Peace: An Interview with Jerome Miller,”
Humanist
, Jan.-Feb. 1994, 9-19.
31
Melissa Hickman Barlow, “Race and the Problem of Crime in
Time
and
Newsweek
Cover Stories, 1946 to 1995,”
Social Justice
25 (1989): 149-83.
Melissa Hickman Barlow, “Race and the Problem of Crime in
Time
and
Newsweek
Cover Stories, 1946 to 1995,”
Social Justice
25 (1989): 149-83.
32
Betty Watson Burston, Dionne Jones, and Pat Robertson-Saunders, “Drug Use and African Americans: Myth Versus Reality,”
Journal of Alcohol and Drug Abuse
40 (Winter 1995): 19.
Betty Watson Burston, Dionne Jones, and Pat Robertson-Saunders, “Drug Use and African Americans: Myth Versus Reality,”
Journal of Alcohol and Drug Abuse
40 (Winter 1995): 19.
33
Franklin D. Gilliam and Shanto Iyengar, “Prime Suspects: The Influence of Local Television News on the Viewing Public,”
American Journal of Political Science
44 (2000): 560-73.
Franklin D. Gilliam and Shanto Iyengar, “Prime Suspects: The Influence of Local Television News on the Viewing Public,”
American Journal of Political Science
44 (2000): 560-73.
34
See, e.g., Nilanjana Dasgupta, “Implicit Ingroup Favoritism, Outgroup Favoritism, and Their Behavioral Manifestations,”
Social Justice Research
17 (2004): 143. For a review of the social science literature on this point and its relevance to critical race theory and antidiscrimination law, see Jerry Kang, “Trojan Horses of Race,”
Harvard Law Review
118 (2005): 1489.
See, e.g., Nilanjana Dasgupta, “Implicit Ingroup Favoritism, Outgroup Favoritism, and Their Behavioral Manifestations,”
Social Justice Research
17 (2004): 143. For a review of the social science literature on this point and its relevance to critical race theory and antidiscrimination law, see Jerry Kang, “Trojan Horses of Race,”
Harvard Law Review
118 (2005): 1489.
35
There is some dispute whether Nietzsche actually said this. He did use the term “immaculate perception” in
Thus Spoke Zarathustra
to disparage traditional views of knowledge, but apparently did not say the precise quote attributed to him. See Friedrich Nietzsche,
Thus Spoke Zarathustra
, reprinted in
The Portable Nietzsche
, ed. & trans. Walter Kaufmann (New York: Viking Penguin, 1954), 100, 233-36.
There is some dispute whether Nietzsche actually said this. He did use the term “immaculate perception” in
Thus Spoke Zarathustra
to disparage traditional views of knowledge, but apparently did not say the precise quote attributed to him. See Friedrich Nietzsche,
Thus Spoke Zarathustra
, reprinted in
The Portable Nietzsche
, ed. & trans. Walter Kaufmann (New York: Viking Penguin, 1954), 100, 233-36.
36
See, e.g., John F. Dovidio, et al., “On the Nature of Prejudice: Automatic and Controlled Processes,”
Journal of Experimental Social Psychology
33 (1997): 510, 516-17, 534.
See, e.g., John F. Dovidio, et al., “On the Nature of Prejudice: Automatic and Controlled Processes,”
Journal of Experimental Social Psychology
33 (1997): 510, 516-17, 534.
37
Joshua Correll, et al., “The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals,
Journal of Personality and Social Psychology
83 (2001): 1314; see also Keith Payne, “Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon,”
Journal of Personality and Social Psychology
81 (2001): 181.
Joshua Correll, et al., “The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals,
Journal of Personality and Social Psychology
83 (2001): 1314; see also Keith Payne, “Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon,”
Journal of Personality and Social Psychology
81 (2001): 181.
38
See, e.g., Dovidio, et al., “On the Nature of Prejudice”; and Dasgupta, “Implicit Ingroup Favoritism.”
See, e.g., Dovidio, et al., “On the Nature of Prejudice”; and Dasgupta, “Implicit Ingroup Favoritism.”
39
Ibid.; see also Brian Nosek, Mahzarin Banaji, and Anthony Greenwald, “Harvesting Implicit Group Attitudes and Beliefs from a Demonstration Web Site,”
Group Dynamics
6 (2002): 101.
Ibid.; see also Brian Nosek, Mahzarin Banaji, and Anthony Greenwald, “Harvesting Implicit Group Attitudes and Beliefs from a Demonstration Web Site,”
Group Dynamics
6 (2002): 101.
40
Correll, “Police Officer’s Dilemma.”
Correll, “Police Officer’s Dilemma.”
41
Nosek, et al., “Harvesting Implicit Group Attitudes.”
Nosek, et al., “Harvesting Implicit Group Attitudes.”
42
Ibid.
Ibid.
43
John A. Bargh, et al., “Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activation on Action,”
Journal of Personality and Social Psychology
71 (1996): 230; Gilliam and Iyengar, “Prime Suspects”; Jennifer L. Eberhardt et al., “Looking Deathworthy,”
Psychological Science
17, no. 5 (2006): 383-86 (“[J]urors are influenced not simply by the knowledge that the defendant is Black, but also by the extent to which the defendant appears to be stereotypically Black. In fact for the Blacks with [the most stereotypical faces], the chance of receiving a death sentence more than doubled”); Jennifer L. Eberhardt et al., “Seeing Black: Race, Crime, and Visual Processing,”
Journal of Personality and Social Pscychology
87, no. 6 (2004): 876-93 (not only were black faces considered more criminal by law enforcement, but the more stereotypical black faces were considered to be the most criminal of all); and Irene V. Blair, “The Influence of Afrocentric Facial Features in Criminal Sentencing,”
Psychological Science
15, no. 10 (2004): 674-79 (finding that inmates with more Afrocentric features received harsher sentences than individuals with less Afrocentric features).
John A. Bargh, et al., “Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activation on Action,”
Journal of Personality and Social Psychology
71 (1996): 230; Gilliam and Iyengar, “Prime Suspects”; Jennifer L. Eberhardt et al., “Looking Deathworthy,”
Psychological Science
17, no. 5 (2006): 383-86 (“[J]urors are influenced not simply by the knowledge that the defendant is Black, but also by the extent to which the defendant appears to be stereotypically Black. In fact for the Blacks with [the most stereotypical faces], the chance of receiving a death sentence more than doubled”); Jennifer L. Eberhardt et al., “Seeing Black: Race, Crime, and Visual Processing,”
Journal of Personality and Social Pscychology
87, no. 6 (2004): 876-93 (not only were black faces considered more criminal by law enforcement, but the more stereotypical black faces were considered to be the most criminal of all); and Irene V. Blair, “The Influence of Afrocentric Facial Features in Criminal Sentencing,”
Psychological Science
15, no. 10 (2004): 674-79 (finding that inmates with more Afrocentric features received harsher sentences than individuals with less Afrocentric features).
44
See Kathryn Russell,
The Color of Crime
(New York: New York University Press, 1988), coining the term
criminalblackman
.
See Kathryn Russell,
The Color of Crime
(New York: New York University Press, 1988), coining the term
criminalblackman
.
45
The notion that the Supreme Court must apply a higher standard of review and show special concern for the treatment of “discrete and insular minorities”—who may not fare well through the majoritarian political process—was first recognized by the Court in the famous footnote 4 of
United States v. Caroline Products Co.
, 301 U.S. 144, n. 4 (1938).
The notion that the Supreme Court must apply a higher standard of review and show special concern for the treatment of “discrete and insular minorities”—who may not fare well through the majoritarian political process—was first recognized by the Court in the famous footnote 4 of
United States v. Caroline Products Co.
, 301 U.S. 144, n. 4 (1938).
46
Whren v. United States
, 517 U.S. 806 (1996).
Whren v. United States
, 517 U.S. 806 (1996).
47
McCleskey v. Kemp
, 481 U.S. 279, 327 (1989), Brennan, J., dissenting.
McCleskey v. Kemp
, 481 U.S. 279, 327 (1989), Brennan, J., dissenting.
48
Ibid., 321.
Ibid., 321.
49
Ibid., 296. Ironically, the Court expressed concern that these rules would make it difficult for
prosecutors
to disprove racial bias. Apparently, the Court was unconcerned that defendants, due to its ruling in the case, would not be able to prove racial bias because of the same rules.
Ibid., 296. Ironically, the Court expressed concern that these rules would make it difficult for
prosecutors
to disprove racial bias. Apparently, the Court was unconcerned that defendants, due to its ruling in the case, would not be able to prove racial bias because of the same rules.
50
Ibid., 314-16.
Ibid., 314-16.
51
Ibid., 339.
Ibid., 339.
52
United States v. Clary
, 846 F.Supp. 768, 796-97 (E.D.Mo. 1994).
United States v. Clary
, 846 F.Supp. 768, 796-97 (E.D.Mo. 1994).
53
Doris Marie Provine,
Unequal Under Law: Race in the War on Drugs
(University of Chicago Press, 2007), 26.
Doris Marie Provine,
Unequal Under Law: Race in the War on Drugs
(University of Chicago Press, 2007), 26.
54
Davis,
Arbitrary Justice
, 5.
Davis,
Arbitrary Justice
, 5.
55
Yick Wo v. Hopkins
, 118 U.S. 356, 373-74 (1886).
Yick Wo v. Hopkins
, 118 U.S. 356, 373-74 (1886).
56
See, e.g., Sandra Graham and Brian Lowery, “Priming Unconscious Racial Stereotypes About Adolescent Offenders,”
Law and Human Behavior
28, no. 5 (2004): 483-504.
See, e.g., Sandra Graham and Brian Lowery, “Priming Unconscious Racial Stereotypes About Adolescent Offenders,”
Law and Human Behavior
28, no. 5 (2004): 483-504.
57
Christopher Schmitt, “Plea Bargaining Favors Whites, as Blacks, Hispanics Pay Price,”
San Jose Mercury News
, Dec. 8, 1991.
Christopher Schmitt, “Plea Bargaining Favors Whites, as Blacks, Hispanics Pay Price,”
San Jose Mercury News
, Dec. 8, 1991.
58
See, e.g., Carl E. Pope and William Feyerherm, “Minority Status and Juvenile Justice Processing: An Assessment of the Research Literature,”
Criminal Justice Abstracts
22 (1990): 527-42; Carl E. Pope, Rick Lovell, and Heidi M. Hsia, U.S. Department of Justice,
Disproportionate Minority Confinement: A Review of the Research Literature from 1989 Through 2001
(Washington DC: U.S. Department of Justice, 2002); Eleanor Hinton Hoytt, Vincent Schiraldi, Brenda V. Smith, and Jason Ziedenberg,
Reducing Racial Disparities in Juvenile Detention
(Baltimore: Annie E. Casey Foundation, 2002), 20-21.
See, e.g., Carl E. Pope and William Feyerherm, “Minority Status and Juvenile Justice Processing: An Assessment of the Research Literature,”
Criminal Justice Abstracts
22 (1990): 527-42; Carl E. Pope, Rick Lovell, and Heidi M. Hsia, U.S. Department of Justice,
Disproportionate Minority Confinement: A Review of the Research Literature from 1989 Through 2001
(Washington DC: U.S. Department of Justice, 2002); Eleanor Hinton Hoytt, Vincent Schiraldi, Brenda V. Smith, and Jason Ziedenberg,
Reducing Racial Disparities in Juvenile Detention
(Baltimore: Annie E. Casey Foundation, 2002), 20-21.
59
Eileen Poe-Yamagata and Michael A. Jones,
And Justice for Some: Differential Treatment of Minority Youth in the Justice System
(Washington, DC: Building Blocks for Youth, 2000).
Eileen Poe-Yamagata and Michael A. Jones,
And Justice for Some: Differential Treatment of Minority Youth in the Justice System
(Washington, DC: Building Blocks for Youth, 2000).
60
National Council on Crime and Delinquency,
And Justice for Some: Differential Treatment of Minority Youth in the Justice System
(Washington, DC: Building Blocks for Youth, 2007).
National Council on Crime and Delinquency,
And Justice for Some: Differential Treatment of Minority Youth in the Justice System
(Washington, DC: Building Blocks for Youth, 2007).
61
See George Bridges and Sara Steen, “Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms,”
American Sociological Review
63, no. 4 (1998): 554-70.
See George Bridges and Sara Steen, “Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms,”
American Sociological Review
63, no. 4 (1998): 554-70.
62
Swain v. Alabama
, 380 U.S. 202 (1965), overruled by
Batson v. Kentucky
, 476 U.S. 79 (1986).
Swain v. Alabama
, 380 U.S. 202 (1965), overruled by
Batson v. Kentucky
, 476 U.S. 79 (1986).
63
Strauder v. West Virginia
, 100 U.S. 303, 308 (1880).
Strauder v. West Virginia
, 100 U.S. 303, 308 (1880).
64
Ibid., 309.
Ibid., 309.
65
Benno C. Schmidt Jr., “Juries, Jurisdiction, and Race Discrimination: The Lost Promise of
Strauder v. West Virginia
,”
Texas Law Review
61 (1983): 1401.
Benno C. Schmidt Jr., “Juries, Jurisdiction, and Race Discrimination: The Lost Promise of
Strauder v. West Virginia
,”
Texas Law Review
61 (1983): 1401.
66
See, e.g.,
Smith v. Mississippi
, 162 U.S. 592 (1896);
Gibson v. Mississippi
, 162 U.S. 565 (1896); and
Brownfield v. South Carolina
, 189 U.S. 426 (1903).
See, e.g.,
Smith v. Mississippi
, 162 U.S. 592 (1896);
Gibson v. Mississippi
, 162 U.S. 565 (1896); and
Brownfield v. South Carolina
, 189 U.S. 426 (1903).
67
Neal v. Delaware
, 103 U.S. 370, 397 (1880).
Neal v. Delaware
, 103 U.S. 370, 397 (1880).
68
Ibid., 402-3 (quoting Delaware Supreme Court).
Ibid., 402-3 (quoting Delaware Supreme Court).
69
Miller-El v. Cockrell
, 537 U.S. 322, 333-34 (2003).
Miller-El v. Cockrell
, 537 U.S. 322, 333-34 (2003).
70
Ibid., 334-35.
Ibid., 334-35.
71
Brian Kalt, “The Exclusion of Felons from Jury Service,”
American University Law Review
53 (2003): 65, 67.
Brian Kalt, “The Exclusion of Felons from Jury Service,”
American University Law Review
53 (2003): 65, 67.
72
Michael J. Raphael and Edward J. Ungvarsky, “Excuses, Excuses: Neutral Explanations Under
Batson v. Kentucky
,”
University of Michigan Journal of Law Reform
27 (1993): 229, 236.
Michael J. Raphael and Edward J. Ungvarsky, “Excuses, Excuses: Neutral Explanations Under
Batson v. Kentucky
,”
University of Michigan Journal of Law Reform
27 (1993): 229, 236.
73
Sheri Lynn Johnson, “The Language and Culture (Not to Say Race) of Peremptory Challenges,”
William and Mary Law Review
35 (1993): 21, 59.
Sheri Lynn Johnson, “The Language and Culture (Not to Say Race) of Peremptory Challenges,”
William and Mary Law Review
35 (1993): 21, 59.
74
Purkett v. Elm
, 514 U.S. 765, 771 n. 4 (1995), Stevens, J., dissenting and quoting prosecutor.
Purkett v. Elm
, 514 U.S. 765, 771 n. 4 (1995), Stevens, J., dissenting and quoting prosecutor.
75
Ibid., 767.
Ibid., 767.
76
Ibid., 768.
Ibid., 768.
77
Ibid.
Ibid.
78
See Lynn Lu, “Prosecutorial Discretion and Racial Disparities in Sentencing: Some Views of Former U.S. Attorneys,”
Federal Sentencing Reporter
19 (Feb. 2007), 192.
See Lynn Lu, “Prosecutorial Discretion and Racial Disparities in Sentencing: Some Views of Former U.S. Attorneys,”
Federal Sentencing Reporter
19 (Feb. 2007), 192.
79
Douglas S. Massey and Nancy A. Denton,
American Apartheid: Segregation and the Making of the Underclass
(Cambridge, MA: Harvard University Press, 1993), 2.
Douglas S. Massey and Nancy A. Denton,
American Apartheid: Segregation and the Making of the Underclass
(Cambridge, MA: Harvard University Press, 1993), 2.
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