Arrests: Warrantless and Unwarranted

            The is the second part in a four-part series in honor of Black History Month, drawn from Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

New Jim CrowMichelle Alexander says we may think we are familiar with how the criminal justice system works but she suggests that we have been led astray by television and movie police dramas.

In The New Jim Crow: Mass Incarceration in the Age of Colorblindness, the author says, “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…”

Alexander says that the War on Drugs, as upheld over and over again by the U.S. Supreme Court, and at the same time weakening the Fourth Amendment with its interpretations, has led to sanctioning police stops and searches of U.S. citizens for little or no reason.

Her statistics show that since the War on Drugs was instituted in the 1980s, “convictions for drug offenses are the single most important cause of the explosion in incarceration rates in the United States…Approximately a half-million people are in prison or jail for a drug offense today, compared to an estimated 41,000 in 1980.”

Furthermore, “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…By the end of 2007, more than 7 million Americans—or one in every 31 adults—were behind bars, on probation or on parole.”

Alexander is out to bust myths.

Among them is the belief that the War on Drugs has been aimed at pulling down the big drug lords. To the contrary, there have been comparatively few arrests and convictions of this nature, she says. The war is directed at smaller drug offenses, many times simply possession of a small amount of marijuana. She cites that since 2005, four out of five arrests are for possession and one out of five for sales, and that “most people in state prison for drug offenses have no history of violence or significant selling activity.”

image courtesy of
image courtesy of

It becomes apparent that American citizens aren’t aware of how procedures for arrests have been loosened since the War on Drugs began. Alexander goes so far as to say, “Few legal rules meaningfully constrain the police in the War on Drugs…With only a few exceptions, the Supreme Court has seized every opportunity to facilitate the drug war, primarily by eviscerating Fourth Amendment protections against reasonable searches and seizures by the police.”

She points out that the Fourth Amendment was originally enacted within memory of English rule when arbitrary searches of colonial people and their property were the rule. This is frighteningly close to what we have come to allow in modern times, says the author.

Once police in the U.S. could not stop and search anyone without a warrant unless there was probable cause that the person was engaging in criminal activity.

Alexander says that in Terry v. Ohio in 1968, the Supreme Court modified the understanding of the Fourth Amendment by ruling that it was allowable for a police officer, upon witnessing unusual conduct, to be able to search a person whom he or she believes is dangerous or engaged in criminal activity.

Justice William O. Douglas was the sole dissenter against warrantless searches. Alexander says that in the years since the ruling, “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. Today 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.”

And, it is not common knowledge that you are entitled to say no to a search. Even if you do, Alexander points out that it is not likely anyone will say no when they are feeling threatened or vulnerable to a police officer who is speaking in a loud voice and maybe even has one hand on a weapon.

“For good reason, many people—especially poor people of color—fear police harassment, retaliation, and abuse,” particularly “after having your car torn apart by the police in a futile search for drugs, or being forced to lie spread-eagled on the pavement while police search and interrogate you for no reason at all…”

In pretext stops of vehicles, officers often are not motivated to enforce traffic laws but are interested in finding drugs. The Supreme Court has also sanctioned this type of enforcement in its rulings since the War on Drugs. In Atwater v. City of Lago Vista, “the Supreme Court held that the police may arrest motorists for minor traffic violations and throw them in jail…” Alexander relates. Thus “even if motorists, after being detained and interrogated, have the nerve to refuse to consent to a search, the police can arrest them anyway.”

One more technique police may employ if denied a vehicle search, is to bring in drug-sniffing dogs.

Alexander says that complaints are not filed because, even if people have been unduly and unfairly harassed, they are unwilling to get on the bad side of law enforcement officials.

Coming up: Part Three

            Once arrested, the next process is through the criminal justice system. Just as many misconceptions exist about police roles and accountability, so is the way in which people become imprisoned. In “Legal Misrepresentation,” Alexander takes us through the process with a realistic analysis of our trampled rights. She also details how and why private property often is seized and not regainable.

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