In Chapter three of her book The New Jim Crow Michelle Alexander continues to build her argument that the levels of mass incarceration we are currently experiencing in the United States is a result of a discriminatory justice system that is in many ways re-instituting the Jim Crow era of the past. Alexander opens this chapter by analyzing the “War on Drugs”—an ambitious federal policy introduced by President Ronald Reagan in 1982 to curb the growing rate of drug use across the United States. Alexander suggests that “in the drug war, the enemy is racially defined” (96), that is to say the enemy in this war is not a thing—the drugs—but instead has become a group of people (primarily African Americans and to a lesser-extent Hispanics). Using a variety of different figures and statistics Alexander paints a picture of crime in America over the last three decades and more specifically, highlights drug crimes and drug users. By concretely ruling out violent crime and street crime, Alexander asserts that drug offenses “are the single most important cause of the prison boom in the United States, and people of color are convicted of drug offenses at rates out of all proportion to their drug crimes” (99).
Puzzled by how a “War on Drugs” could operate in a discriminatory manner on a large scale without anyone ever advocating against such discrimination, Alexander decides that the central question that needs to be addressed is “how exactly does a formally color blind criminal justice system achieve such racially discriminatory results?” (100). The explanation that is developed in this chapter is two-fold. One, law enforcement officers were granted large amounts of discretion regarding the pursuit of drug offenders—which Alexander claims has provided the opportunity for conscious and unconscious racial beliefs and stereotypes. And two, the justice system denies and blocks all possible inquiries into racial discrimination.
This role of police discretion grew partly out of necessity, a drug deal is a consensual activity where both parties are participating in illegal behavior and have incentive not to get caught. A far more intrusive and provocative type of policing became necessary to address these crimes than would be used for ordinary violence or street crimes. Compounding the issue of police discretion was a ‘guilty until proven innocent’ stigma born from social and political pressures. Alexander cites the media campaign launched by Reagan to coincide with his war on drugs as a promotion of racial biases in reaction to crime. Such advertisements acted as a form of propaganda publicizing horror stories involving predominantly black crack cocaine use. According to Alexander “the media bonanza inspired by the administration’s campaign solidified in the public imagination the image of the black drug criminal” (102).
In order to address the idea that the justice system blocks all claims of racial discrimination Alexander looks to a few specific court cases. In Whren v. United States the Supreme Court ruled that using a minor traffic violation as an excuse to conduct a drug investigation does not violate the Fourth Amendment ban on ‘unreasonable searches and seizures’. She explains how the Supreme Court ruling in McCleskey v. Kemp meant “that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the Fourteenth Amendment in the absence of clear evidence of conscious, discriminatory intent” (106). It seems very unlikely—in fact nearly impossible—that this type of evidence could ever be obtained. Finally, in United States v. Armstrong the Supreme Court “closed the courthouse door to claims of racial bias” (112) by shielding the prosecution’s decision making power from judicial scrutiny for racial bias.
The arguments that Alexander makes in this chapter are very clear, well supported, and easy to follow. There are a few specific details from the evidence provided in this chapter that I believe to be disturbing. Most significant is the fact that McCleskey v. Kemp—the denial of any racial bias in sentencing—has not met a single successful challenge since it was upheld even though it is entirely plausible that bias occurs is startling. Is it possible that we have drawn the lines of the law too deep in the sand so that they cannot be up for discussion and interpretation? Alexander comes to a chilling summation: “It is difficult to imagine a system better designed to ensure racial biases and stereotypes are given free rein—while at the same time appearing on the surface to be colorblind—than the one devised by the US Supreme Court” (116). I find myself needing to understand this better. Is it possible that these air-tight Supreme Court decisions exist in other facets of the American justice system?
No comments:
Post a Comment