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July 10 - October 21, 2020
Every system of injustice depends on the silence, paralysis, confusion, and cooperation of those it seeks to eliminate or control.
The reality is this: the fact that half of a state’s prison population is comprised of people labeled violent offenders does not mean that half of the people sentenced to prison in that state have been convicted of violent crimes.
The lie that most people sent to prison are “violent offenders” is dangerous because it perpetuates the false notion that our system of mass incarceration is primarily concerned with violence and that it is well designed to keep communities safe.
The safest communities are not the ones with the most police, prisons, or electronic monitors, but the ones with quality schools, health care, housing, plentiful jobs, and strong social networks that allow families not merely to survive but to thrive.
White people are generally allowed to have problems, and they’ve historically been granted the power to define and respond to them. But people of color—in this “land of the free” forged through slavery and genocide—are regularly viewed and treated as the problem.
Once human beings are defined as the problem in the public consciousness, their elimination through deportation, incarceration, or even genocide becomes nearly inevitable.
When most people describe the “growing bipartisan consensus to end mass incarceration,” they are typically defining the problem of mass incarceration in the narrowest possible terms, focusing only on reducing somewhat the number of people who are currently behind bars. As a result, celebrated reforms typically amount to little more than tinkering with the mass incarceration machine.
Human rights champion Bryan Stevenson has observed that “slavery didn’t end; it evolved.” Today, we can see, in real time, the system of mass incarceration evolving before our eyes, as enormous investments are made in immigrant detention centers and digital prisons, and as growing numbers of white people become collateral damage in a war that was declared with black people in mind.
The notion that if you’ve ever committed a crime you’re permanently disposable is the very idea that has rationalized mass incarceration in the United States.
Just as the public was initially led to believe that the War on Drugs was focused on “drug kingpins” or “violent offenders”—when the opposite was true—our nation’s current war on immigrants has been advertised as necessary to rid us of “terrorists, gang members, or violent criminals,” when in fact the overwhelming majority of immigrants detained and deported have no criminal record and pose no threat.
criminality is not truly a limiting principle. All of us make mistakes. Young people, in particular, are prone to bad judgment—as voluminous scientific evidence now attests. Virtually all of us break the law at some point in our lives
what gets defined as crime, and who gets surveilled and punished, generally has more to do with the politics of race and class than the harm that any particular behavior or activity causes. As Alec Karakatsanis observes in Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System, people with race and class privilege are generally shielded from criminal prosecution, even though their crimes often cause far greater harm than the crimes of the poor.
black voters overwhelmingly oppose Trump’s approach to immigration, with 74 percent choosing “Immigrants just want to provide a better life for their families, just like you and me” over “America has too many illegal immigrants, they hurt the economy, bring crime and gang violence to our cities.”
Black people also have the highest support for the DREAM Act, which provides a pathway to citizenship for people brought to the United States as children, and they are most opposed to Trump’s policy of separating children and parents at the border.
“Black people know what it’s like to have their communities terrorized, to feel fear when pulled over by police, and to fight to keep their families together.”
The future of our democracy may depend on other racial and ethnic groups learning to see that our fates are, in fact, inescapably intertwined. If we, as a nation, are ever to free ourselves from the logic and politics of white supremacy, we must not allow ourselves to imagine that progress is made if the system causes greater harm to “them” than “us.”
Martin Luther King Jr. called for us to be lovestruck with each other, not colorblind toward each other. To be lovestruck is to care, to have deep compassion, and to be concerned for each and every individual, including the poor and vulnerable.
In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind.
Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you are afforded scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.
The CIA admitted in 1998 that guerrilla armies it actively supported in Nicaragua were smuggling illegal drugs into the United States—drugs that were making their way onto the streets of inner-city black neighborhoods in the form of crack cocaine. The CIA also admitted that, in the midst of the War on Drugs, it blocked law enforcement efforts to investigate illegal drug networks that were helping to fund its covert war in Nicaragua.
the War on Drugs began at a time when illegal drug use was on the decline.6 During this same time period, however, a war was declared, causing arrests and convictions for drug offenses to skyrocket, especially among people of color.
The impact of the drug war has been astounding. In less than thirty 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.7
No other country in the world imprisons so many of its racial or ethnic minorities. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid.
Studies show that people of all colors use and sell illegal drugs at remarkably similar rates.
It may be surprising to some that drug crime was declining, not rising, when a drug war was declared. From a historical perspective, however, the lack of correlation between crime and punishment is nothing new. Sociologists have frequently observed that governments use punishment primarily as a tool of social control, and thus the extent or severity of punishment is often unrelated to actual crime patterns.
The stark and sobering reality is that, for reasons largely unrelated to actual crime trends, the American penal system has emerged as a system of social control unparalleled in world history.
Jim Crow and slavery were caste systems. So is our current system of mass incarceration.
The term mass incarceration refers not only to the criminal justice system but also to the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison.
Many will wonder how a nation that just elected its first black president could possibly have a racial caste system. It’s a fair question. But as discussed in chapter 6, there is no inconsistency whatsoever between the election of Barack Obama to the highest office in the land and the existence of a racial caste system in the era of colorblindness. The current system of control depends on black exceptionalism; it is not disproved or undermined by it.
The system of mass incarceration is based on the prison label, not prison time.
Few legal rules meaningfully constrain the police in the drug war, and enormous financial incentives have been granted to law enforcement to engage in mass drug arrests through military-style tactics.
As W.E.B. Du Bois eloquently reminds us, former slaves had “a brief moment in the sun” before they were returned to a status akin to slavery. Constitutional amendments guaranteeing African Americans “equal protection of the laws” and the right to vote proved as impotent as the Emancipation Proclamation once a white backlash against Reconstruction gained steam.
The structure and content of the original Constitution was based largely on the effort to preserve a racial caste system—slavery—while at the same time affording political and economic rights to whites, especially propertied whites.
the current stereotypes of black men as aggressive, unruly predators can be traced to this period, when whites feared that an angry mass of black men might rise up and attack them or rape their women.
Although the convict laws enacted during this period are rarely seen as part of the black codes, that is a mistake. As explained by historian William Cohen, “the main purpose of the codes was to control the freedmen, and the question of how to handle convicted black law breakers was very much at the center of the control issue.”
In W.E.B. Du Bois’s words: “The Codes spoke for themselves…. No open-minded student can read them without being convinced they meant nothing more nor less than slavery in daily toil.”
In the years following Brown v. Board of Education, civil rights activists used direct-action tactics in an effort to force reluctant Southern states to desegregate public facilities. Southern governors and law enforcement officials often characterized these tactics as criminal and argued that the rise of the Civil Rights Movement was indicative of a breakdown of law and order.
For more than a decade—from the mid-1950s until the late 1960s—conservatives systematically and strategically linked opposition to 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 in nature, and federal courts were accused of excessive “lenience” toward lawlessness, thereby contributing to the spread of crime.
The reasons for the crime wave are complex but can be explained in large part by the rise of the “baby boom” generation—the spike in the number of young men in the fifteen-to-twenty-four age group, which historically has been responsible for most crimes. The surge of young men in the population was occurring at precisely the same time that unemployment rates for black men were rising sharply, but the economic and demographic factors contributing to rising crime were not explored in the media. Instead, crime reports were sensationalized and offered as further evidence of the breakdown in
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the Democratic New Deal coalition evolved into an alliance of urban ethnic groups and the white South that dominated electoral politics from 1932 to the early 1960s. That dominance came to an abrupt end with the creation and implementation of what has come to be known as the Southern Strategy. The success of law and order rhetoric among working-class whites and the intense resentment of racial reforms, particularly in the South, led conservative Republican analysts to believe that a “new majority” could be created by the Republican Party, one that included the traditional Republican base, the
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Republican strategist Kevin Phillips is often credited for offering the most influential argument in favor of a race-based strategy for Republican political dominance in the South. He argued in The Emerging Republican Majority, published in 1969, that Nixon’s successful presidential election campaign could point the way toward long-term political realignment and the building of a new Republican majority, if Republicans continued to campaign primarily on the basis of racial issues, using coded antiblack rhetoric.55 He argued that Southern white Democrats had become so angered and alienated by
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This reality made it possible for conservatives to characterize the “liberal Democratic establishment” as being out of touch with ordinary working people—thus resolving one of the central problems facing conservatives: how to persuade poor and working-class voters to join in alliance with corporate interests and the conservative elite. By 1968, 81 percent of those responding to the Gallup Poll agreed with the statement that “law and order has broken down in this country,” and the majority blamed “Negroes who start riots” and “Communists.”
Few criticisms of the legislation could be heard en route to enactment. One senator insisted that crack had become a scapegoat distracting the public’s attention from the true causes of our social ills, arguing: “If we blame crime on crack, our politicians are off the hook. Forgotten are the failed schools, the malign welfare programs, the desolate neighborhoods, the wasted years. Only crack is to blame. One is tempted to think that if crack did not exist, someone somewhere would have received a Federal grant to develop it.”89 Critical voices, however, were lonely ones.
Among whites, those expressing the highest degree of concern about crime also tend to oppose racial reform, and their punitive attitudes toward crime are largely unrelated to their likelihood of victimization.92 Whites, on average, are more punitive than blacks, despite the fact that blacks are far more likely to be victims of crime.
Despite claims that these radical policy changes were driven by fiscal conservatism—i.e., the desire to end big government and slash budget deficits—the reality is that government was not reducing the amount of money devoted to the management of the urban poor. It was radically altering what the funds would be used for. The dramatic shift toward punitiveness resulted in a massive reallocation of public resources.
More than 2 million people found themselves behind bars at the turn of the twenty-first century, and millions more were relegated to the margins of mainstream society, banished to a political and social space not unlike Jim Crow, where discrimination in employment, housing, and access to education was perfectly legal, and where they could be denied the right to vote.
The routine police harassment, arbitrary searches, and widespread police intimidation of those subject to English rule helped to inspire the American Revolution. Not surprisingly, then, preventing arbitrary searches and seizures by the police was deemed by the Founding Fathers an essential element of the U.S. Constitution.
Fourth Amendment origins
the overwhelming majority of people who are confronted by police and asked questions respond, and when asked to be searched, they comply.20 This is the case even among those, like Bostick, who have every reason to resist these tactics because they actually have something to hide. This is no secret to the Supreme Court.
The Court long ago acknowledged that effective use of consent searches by the police depends on the ignorance (and powerlessness) of those who are targeted. In Schneckloth v. Bustamonte, decided in 1973, the Court admitted that if waiver of one’s right to refuse consent were truly “knowing, intelligent, and voluntary,” it would “in practice create serious doubt whether consent searches would continue to be conducted.”21 In other words, consent searches are valuable tools for the police only because hardly anyone dares to say no.
People are easily intimidated when the police confront them, hands on their revolvers, and most have no idea the question can be answered, “No.” But what about all the people driving down the street? How do police extract consent from them? The answer: pretext stops.
