Category Archives: Black History Month

When the system of mass incarceration collapses …

            The is the final post 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.

“When the system of mass incarceration collapses (and if history is any guide, it will), historians will undoubtedly look back and marvel that such an extraordinarily comprehensive system of racialized social control existed in the United States. How fascinating, they will likely say, that a drug war was waged almost exclusively against poor people of color—people already trapped in ghettos that lacked jobs and decent schools. They were rounded up by the millions, packed away in prison, and when released, they were stigmatized for life, denied the right to vote, and ushered into a world of discrimination.

            “Legally barred from employment, housing, and welfare benefits—and saddled with thousands of dollars of debt—these people were shamed and condemned for failing to hold together their families. They were chastised for succumbing to depression and anger, and blamed for landing back in prison. Historians will likely wonder how we could describe the new caste system as a system of crime control, when it is difficult to imagine a system better designed to create—rather than prevent—crime.” – Michelle Alexander  The New Jim Crow: Mass Incarceration in the Age of Colorblindness

People who have been convicted of felonies are hard pressed to re-enter society. What is to become of the thousands of young black men in the country who “are given as little as $10 gate money” after leaving prison? Criminal records will follow them for life. Ex-offenders are banned from employment in many jobs and professional fields by licensing rules.

Funding for education is on the wane. Alexander suggests that this is due to expanding prison budgets and says that what she calls the “new caste system” has created a situation in the U.S. where “young black men are more likely to go to prison than to college.”

She says that while Jim Crow exploited African Americans, the War on Drugs and its attendant mass incarceration of black men marginalizes that segment of our population. Marginalization means that people are no longer of use to society so caging them and making money off prisons is one way to deal with them.

“In the era of colorblindness, it is not longer permissible to hate blacks,” she says. “But we can hate criminals.”

“Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what is means to be black.”

            “…the burden belongs to the nation, and the hands of none of us are clean if we bend not our energies to righting these great wrongs.”   –W.E.B. DuBois                          

So what is to be done about this racial caste system, particularly since the collective perception in the U.S. does not allow for the thought that there is racism at work? Alexander says that solutions are beyond the scope of her book, but posits that there are ways to begin.

The first is dealing with “our collective denial” which creates “a major stumbling block to public understanding of the role of race in our society, and it sharply limits the opportunities for truly transformative collective action.”

While she does not disparage the efforts of civil rights advocates in striving for reforms in felon disenfranchisement laws, crack sentencing penalties and racial profiling by law enforcement, not enough strides have been made.

Era-of_Colorblindness            “If we become serious about dismantling the system of mass incarceration, we must end the War on Drugs,” she says. “There is no way around it…there is no path to liberation for communities of color that includes this ongoing war.”

As important, she believes, is that there must be a change within the culture of law enforcement. “Black and brown people in ghetto communities must no longer be viewed as the designated enemy, and ghetto communities must no longer be treated like occupied zones.”

Her list further includes:

  • Rescinding mandatory drug sentencing laws
  • Legalizing marijuana
  • Adopting meaningful re-entry programs
  • Retraining prison workers
  • Investing in drug treatment on demand
  • Reversing laws that cause discrimination against drug offenders for the rest of their lives

“There is a tremendous amount of work to be done,” cautions Alexander, warning that, “All of the needed reforms have less to do with failed policies than a deeply flawed public consensus.”

She quotes Martin Luther King, Jr. when, in 1965 he described why it was more important to spearhead mass mobilization rather than lawsuits. He said, “We are trying to win the right to vote and we have to focus the attention of the world on that. We can’t do that making legal cases.”

Image courtesy of Friends of Justice
Image courtesy of Friends of Justice

Alexander says that, “The idea that we may never reach a state of perfect racial equality—a perfect racial equilibrium—is not cause for alarm. What is concerning is the real possibility that we, as a society, will choose not to care. We will choose to be blind to injustice and the suffering of others.”

And, once again, we must listen to Dr. King’s words. He is still enlightening us: “It is necessary for us to realize that we have moved from the era of civil rights to the era of human rights.”

 

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“Legal Misrepresentation” and Seizures Abound

            The is the third 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 Crow

Michelle Alexander has stated that “few legal rules meaningfully constrain the police in the War on Drugs.” In fact, she says, “the rules of the game are designed to allow for the roundup of an unprecedented number of Americans for minor nonviolent drug offenses.”

What then transpires once a person is arrested?  Alexander says that defendants are typically pressured by the threat of lengthy sentence into plea bargaining. The most astonishing revelation is that “Tens of thousands of poor people go to jail every year without ever talking to a lawyer, and those who do meet with a lawyer for a drug offense often spend only a few minutes discussing their case and options before making a decision that will profoundly affect the rest of the lives.”

Once again, television and movies seem to be letting us down, portraying the public defender rushing in to represent the wrongfully accused. Everyone gets a lawyer of some ilk, right?

Convicted

While the Supreme Court ruled 40 years ago that poor people accused of serious crimes were entitled to counsel, it left it up to states and local governments to decide how legal services should be funded, Alexander says. But the War on Drugs brought out the “tough on crime” politicians and public defender offices are usually not on the top of the funding list.

The author’s statistics show that 80 percent of criminal defendants are unable to hire a lawyer because they are indigent. Public defenders have large case loads, sometimes “well over one hundred clients at a time…And some states deny representation to impoverished defendants on the theory that somehow they should be able to pay for a lawyer, even though they are scarcely able to pay for food or rent.”

“…in Wisconsin, more than 11,000 poor people go to court without representation every year because anyone who earns more than $3,000 per year is considered able to afford a lawyer…The fundamental right to a lawyer that Americans assume applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.”

She also says that almost no one goes to trial. Most plea bargain. After the arrest, the prosecutor is in charge, she says. The prosecutor may dismiss charges or pile more on if they can be proven in court—“a practice known as overcharging.”

This is a major factor in defendants pleading guilty to crimes, even if they are innocent, rather than risk the results of a trial.

“The pressure to plead guilty to crimes has increased exponentially since the advent of the War on Drugs. In 1986, Congress passed The Anti-Drug Abuse Act, which established extremely long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine,” she says. “The typical mandatory sentence for a first-time drug offense in federal court is five or ten years.”

On top of that, she says that, “The number of snitches in drug cases has soared in recent years, partly because the government has tempted people to ‘cooperate’ with law enforcement by offering cash, putting them ‘on payroll,’ and promising cuts of seized drug assets, but also because ratting out co-defendants, friend, family, or acquaintances is often the only way to avoid a lengthy mandatory minimum sentence.”

Consequently, “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 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 probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”  Excerpt from the Fourth Amendment

Meanwhile, in 1984 Congress amended a law that had allowed the confiscation of property that had anything to do with drug manufacturing and storage equipment, along with the drugs and the transportation used to convey it.
The amendment made it possible for law enforcement agencies to keep and use the proceeds from asset forfeitures and to retain up to 80 percent of the assets’ value.

“Suddenly, police departments were capable of increasing the size of their budgets, quite substantially, simply by taking the cash, cars and homes of people suspected of drug use of sales…on mere suspicion of illegal drug activity.

“Once the property was seized, the owner had no right of counsel, and the burden was placed on him to prove the property’s ‘innocence.’” Because most of the people who had cash or property seized were poor, they couldn’t hire an attorney or pay court costs, so most people did not contest the seizure.

Naturally the system lent itself to enormous abuse, with whole task forces devoted to seizing whatever they wanted whenever they wanted. It wasn’t until 2000 that Congress passed the Civil Asset Forfeiture Reform Act which was supposed to address the abuses, but Alexander says the reforms were inadequate. It shifted the burden of proof onto the government but still allows absurdities like one case Alexander cites:

“A woman who knew that her husband occasionally smoked pot could have her car forfeited to the government because she allowed him to use her car. Because the ‘car’ was guilty of transporting someone who had broken a drug law at some time, she could legally lose her only form of transportation, even though she herself committed no crime.”

And, under the new law, drug busts motivated by desire to seize cars, houses and other property are still allowed and local agencies still can keep the seized assets. This ensures that law enforcement, profiting in this manner and from other federal incentives will support the continuance of the War on Drugs.

Coming up: Part  Four

What does the War on Drugs, and subsequent mass incarceration, mean for African Americans in the United States? What is the harm done by stigmas after prison and is there a way to start dismantling the system that promotes, under the guise of controlling crime, such enormous racial injustices?

   

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 NewJimCrow.com
image courtesy of NewJimCrow.com

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.

New Jim Crow

War on Drugs: Racism Beneath the Veil

New Jim CrowThis blog is the first in a four-part series with information extracted from The New Jim Crow: Mass Incarceration in the Age of Colorblindness  by Michelle Alexander. Daily Kos calls the book “a timely and stunning guide to the labyrinth of propaganda, discrimination, and racist policies masquerading under other names that comprises what we call justice in America.” The Miami Herald calls it “a troubling and profoundly necessary book.”

War on Drugs: Racism Beneath the Veil

In his 1963 March on Washington speech (“I have a dream”), the Rev. Martin Luther King said, …”we refuse to believe that the bank of justice is bankrupt…” in this nation.

In The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander­—a civil rights lawyer and advocate, and a legal scholar—turns a critical eye on our system of justice and pinpoints the root causes and continuation of the staggering bias against African Americans, in particular black men.

In this well-researched book, Alexander first startles with the statistic that “in less than 30 years, the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase…” and that “one in three young African American men will serve time in prison if current trends continue.” She says further that “mass incarceration tends to be categorized as a criminal justice issue as opposed to a racial justice or civil rights issue (or crisis).”

In a chapter entitled “The Rebirth of Caste” and a section called “The Birth of Mass Incarceration,” Alexander says that the “rhetoric of ‘law and order’ was first mobilized in the late 1950s as Southern governors and law enforcement officials attempted to generate and mobilize white opposition to the Civil Rights Movement.”

MLKShe says that “For more than a decade—from the mid-1950s until the late 1960s—conservatives systematically and strategically linked opposition for civil rights legislation to calls for law and order, arguing that Martin Luther King Jr.’s philosophy of civil disobedience was a leading cause of crime. Civil rights protests were frequently depicted as criminal rather than political lawlessness, thereby contributing to the spread of crime.”

Alexander says that after the passage of the Civil Rights Act, the public debate shifted focus from segregation to crime. Pres. Ronald Reagan took advantage of disadvantaged white voters who felt betrayed by the Democratic Party’s acceptance of the act, she says. He did this by “condemning ‘welfare queens’ and criminal ‘predators’” with the inference that these were all black people, but without ever making any explicit reference to race.

One of Reagan’s campaign promises was to boost the federal government’s role in fighting crime. “After a period of initial confusion and controversy regarding whether the FBI and the federal government should be involved in street crime, the Justice Department announced its intention to cut in half the number of specialists assigned to identify and prosecute white-collar criminals and to shift its attention to street crime, especially drug-law enforcement,” Alexander cites.

Interestingly enough, she says, at that time fewer than 2 percent of the American public viewed drugs as a top priority for law enforcement officials to tackle. But law enforcement budgets soared on every level starting in 1981. According to the stats Alexander amassed, three years later the FBI’s antidrug funding increased from $8 million to $95 million, the Department of Defense’s drug allocations from $33 million to $1,045 million in 10 years, etc., while antidrug funds for the Department of Education were cut to a fourth of what they had been.

The war on drugs hit at the same time that inner cities were collapsing due to the outsourcing of factory jobs to foreign countries and technology was replacing many skilled workers’ jobs. “The decline in legitimate employment opportunities among inner-city residents increased incentives to sell drugs—most notably crack cocaine,” Alexander says. She says that, while “no one should ever attempt to minimize the harm caused by crack cocaine and the related violence,” other countries faced with similar problems chose to set up drug treatment and prevention programs and enhanced education and economic opportunities. But Alexander says that for reasons “traceable largely to racial politics and fear mongering we chose war.”

In 1986, the House passed legislation that allocated $2 billion toward the anti-drug campaign and Reagan signed the Anti-Drug Abuse Act of 1986. “Among other harsh penalties, the legislation included mandatory minimum sentences for the distribution of cocaine, including far more severe punishment for distribution of crack—associated with blacks—than powder cocaine, associated with whites.”

Alexander notes earlier in the book that crack is “pharmacologically almost identical to powder cocaine, but it has been converted into a form that can be vaporized and inhaled for a faster, more intense (though shorter) high using less of the drug—making it possible to sell small doses at more affordable prices.”

Until recently, federal law has overseen the punishment of crack offenses one hundred times more severely than powder cocaine offenses. “A conviction for the sale of five hundred grams of powder cocaine triggers a five-year mandatory sentence, while only five gram of crack triggers the same sentence,” the author details.

Courts from the lowest to the highest in the land have upheld the hundred-to-one ratio, along with other thinly veiled racially-based decisions made by police arresting people who appear to be on drugs or whom they think might be drug offenders. The War on Drugs has its own set of legal allowances, it seems, and very little of it has to do with adherence to the U.S. Constitution.

When the War on Drugs was instituted, Alexander says, “The results were immediate. As law enforcement budgets exploded, so did prison and jail populations. In 1991, the Sentencing Project reported that the number of people behind bars in the United Sates was unprecedented in world history, and that one fourth of young African American men were now under the control of the criminal justice system.”

In her introduction, Alexander says that “the racial dimension of mass incarceration is its most striking feature. No other country in the world imprisons so many of its racial or ethnic minorities.

“These stark racial disparities cannot be explained by rates of drug crimes. Studies show that people of all colors use and sell illegal drugs at remarkably similar rates…That is not what one would guess, however, when entering our nation’s prison and jails.

“In major cities wracked by the drug war as many as 80 percent of young African American men now have criminal records and are thus subject to legalized discrimination for the rest of their lives. These young men are part of a growing undercaste, permanently locked up and locked out of mainstream society.”

Next blogs during Black History Month: Further review of issues that Michelle Alexander brings to light in The New Jim Crow, including “the astonishing percentage of the American public” arrested for minor, non-violent drug crimes; the legal ways in which police are allowed to invade a citizen’s house, search it and arrest the occupants; the court cases and appeals that have denied any racial bias as the basis for decisions; the effect arrests, convictions for misdemeanors and felonies, and prison terms have on a person’s life; the deleterious effect pleading guilty in return for a reduced sentence can have on a person’s life; and Alexander’s examination of all-too-common debtor’s prison situations.

Four part series