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Once again, in response to a major disruption in the prevailing racial order—this time the civil rights gains of the 1960s—a new system of racialized social control was created by exploiting the vulnerabilities and racial resentments of poor and working-class whites. 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
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The reason is simple: nothing has contributed more to the systematic mass incarceration of people of color in the United States than this ongoing war. Drug offenses alone account for two-thirds of the rise in the federal prison population and more than half the rise in the state prison population between 1985 and 2000.1
Approximately a half-million people are in prison or jail for a drug offense today, compared to an estimated 41,100 in 1980—an increase of 1,100 percent.2 Drug arrests have tripled since 1980. As a result, more than 31 million people have been arrested for drug offenses since the drug war began.3 To put the matter in perspective, consider this: there are more people in prisons and jails today just for drug offenses than were incarcerated for all reasons in 1980.4
The vast majority of those arrested are charged with relatively minor crimes. In 2005, for example, four out of five drug arrests were for possession, and only one out of five was for sales. Moreover, most people in state prison for drug offenses have no history of violence or significant selling activity.5
The second myth is that the drug war is principally concerned with dangerous drugs. Quite to the contrary, arrests for marijuana possession—a drug less harmful than tobacco or alcohol—accounted for nearly 80 percent of the growth in drug arrests in the 1990s.
With only a few exceptions, the Supreme Court has seized every opportunity to facilitate the drug war, primarily by eviscerating Fourth Amendment protections against unreasonable searches and seizures by the police. The rollback has been so pronounced that some commentators charge that a virtual “drug exception” now exists to the Bill of Rights. Shortly before his death, Justice Thurgood Marshall felt compelled to remind his colleagues that there is, in fact, “no drug exception” written into the text of the Constitution.8
In the years [from 1982 to 1991], the Court has heard argument in 30 Fourth Amendment cases involving narcotics. In all but one, the government was the petitioner. All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Court upheld the constitutionality of the search or seizure. In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court
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Officers learn, among other things, how to use a minor traffic violation as a pretext to stop someone, how to lengthen a routine traffic stop and leverage it into a search for drugs, how to obtain consent from a reluctant motorist, and how to use drug-sniffing dogs to obtain probable cause.
By 2000, the DEA had directly trained more than 25,000 officers in forty-eight states in Pipeline tactics and helped to develop training programs for countless municipal and state law enforcement agencies. In legal scholar Ricardo Bascuas’s words, “Operation Pipeline is exactly what the Framers meant to prohibit: a federally-run general search program that targets people without cause for suspicion, particularly those who belong to disfavored groups.”24 The program’s success requires police to stop “staggering” numbers of people in shotgun fashion.
In theory, a drug-courier profile reflects the collective wisdom and judgment of a law enforcement agency’s officials. Instead of allowing each officer to rely on his or her own limited experience and biases in detecting suspicious behavior, a drug-courier profile affords every officer the advantage of the agency’s collective experience and expertise. However, as legal scholar David Cole has observed, “in practice, the drug-courier profile is a scattershot hodgepodge of traits and characteristics so expansive that it potentially justifies stopping anybody and everybody.”29 The profile can
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“such profiles do not so much focus an investigation as provide law enforcement officials a ready-made excuse for stopping whomever they please.”
“Many courts have accepted the profile, as well as the Drug Enforcement Agency’s scattershot enforcement efforts, unquestioningly, mechanistically, and dispositively.”
Clearly, the rules of the drug war game are designed to allow for the roundup of an unprecedented number of Americans. The number of annual drug arrests more than tripled between 1980 and 2005, as drug sweeps and suspicionless stops and searches proceeded in record numbers.33
Drug use and abuse is nothing new; in fact, it was on the decline, not on the rise, when the War on Drugs began. So why make drug-law enforcement a priority now? Once again, the answer lies in the system’s design. Every system of control depends for its survival on the tangible and intangible benefits that are provided to those who are responsible for the system’s maintenance and administration. This system is no exception.
The resistance within law enforcement to the drug war created something of a dilemma for the Reagan administration. In order for the war to actually work—that is, in order for it to succeed in achieving its political goals—it was necessary to build a consensus among state and local law enforcement agencies that the drug war should be a top priority in their hometowns. The solution: cash. Huge cash grants were made to those law enforcement agencies that were willing to make drug-law enforcement a top priority. The new system of control is traceable, to a significant degree, to a massive bribe
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Today, the most common use of SWAT teams is to serve narcotics warrants, usually with forced, unannounced entry into the home. In fact, in some jurisdictions drug warrants are served only by SWAT teams—regardless of the nature of the alleged drug crime. As the Miami Herald reported in 2002, “Police say they want [SWAT teams] in case of a hostage situation or a Columbine-type incident, but in practice the teams are used mainly to serve search warrants on suspected drug dealers. Some of these searches yield as little as a few grams of cocaine or marijuana.”40
By the early 1980s, there were three thousand annual SWAT deployments, by 1996 there were thirty thousand, and by 2001 there were forty thousand.41 The escalation of military force was quite dramatic in cities throughout the United States.
Drug raids conducted by SWAT teams are not polite encounters. In countless situations in which police could easily have arrested someone or conducted a search without a military-style raid, police blast into people’s homes, typically in the middle of the night, throwing grenades, shouting, and pointing guns and rifles at anyone inside, often including young children. In recent years, dozens of people have been killed by police in the course of these raids, including elderly grandparents and those who are completely innocent of any crime. Criminologist Peter Kraska reports that between 1989 and
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The transformation from “community policing” to “military policing,” began in 1981, when President Reagan persuaded Congress to pass the Military Cooperation with Law Enforcement Act, which encouraged the military to give local, state, and federal police access to military bases, intelligence, research, weaponry, and other equipment for drug interdiction.
incentives offered to local law enforcement to pump up their drug arrests have not been well publicized, leading the average person to conclude reasonably (but mistakenly) that when their local police departments report that drug arrests have doubled or tripled in a short period of time, the arrests reflect a surge in illegal drug activity, rather than an infusion of money and an intensified enforcement effort.
The paper explained that, in the 1990s, Wisconsin police departments were given nearly a hundred thousand pieces of military equipment. And although the paramilitary units were often justified to city councils and skeptical citizens as essential to fight terrorism or deal with hostage situations, they were rarely deployed for those reasons but instead were sent to serve routine search warrants for drugs and make drug arrests. In fact, the Times reported that police departments had an extraordinary incentive to use their new equipment for drug enforcement: the extra federal funding the local
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Modern drug forfeiture laws date back to 1970, when Congress passed the Comprehensive Drug Abuse Prevention and Control Act. The act included a civil forfeiture provision authorizing the government to seize and forfeit drugs, drug manufacturing and storage equipment, and conveyances used to transport drugs. As legal scholars Eric Blumenson and Eva Nilsen have explained, the provision was justified as an effort “to forestall the spread of drugs in a way criminal penalties could not—by striking at its economic roots.”
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 or sales. At
Property or cash could be seized based on mere suspicion of illegal drug activity, and the seizure could occur without notice or hearing, upon an ex parte showing of mere probable cause to believe that the property had somehow been “involved” in a crime. The probable cause showing could be based on nothing more than hearsay, innuendo, or even the paid, self-serving testimony of someone with interests clearly adverse to the property owner.
Not surprisingly, this drug forfeiture regime proved highly lucrative for law enforcement, offering more than enough incentive to wage the War on Drugs. According to a report commissioned by the Department of Justice, between 1988 and 1992 alone, Byrne-funded drug task forces seized over $1 billion in assets.
Quite predictably, the enormous economic rewards created by both the drug forfeiture and Byrne grant laws have created an environment in which a very fine line exists between the lawful and the unlawful taking of other people’s money and property—a line so thin that some officers disregard the formalities of search warrants, probable cause, and reasonable suspicion altogether.
In United States v. Reese, for example, the Ninth Circuit Court of Appeals described a drug task force completely corrupted by its dependence on federal drug money. Operating as a separate unit within the Oakland Housing Authority, the task force behaved, in the words of one officer, “more or less like a wolfpack,” driving up in police vehicles and taking “anything and everything we saw on the street corner.”
The officers were under tremendous pressure from their commander to keep their arrest numbers up, and all of the officers were aware that their jobs depended on the renewal of a federal grant. The task force commander emphasized that they would need statistics to show that the grant money was well spent and sent the task force out to begin a shift with comments l...
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Similarly, in Louisiana, journalists reported that Louisiana police engaged in massive pretextual stops in an effort to seize cash, with the money diverted to police department ski trips and other unauthorized uses.54 And in Southern California, a Los Angeles Sheriff’s Department employee reported that deputies routinely planted drugs and falsified police reports to establish probable cause for cash seizures.55
In 2000, Congress passed the Civil Asset Forfeiture Reform Act, which was meant to address many of the egregious examples of abuse of civil forfeiture. Some of the most widely cited examples involved wealthy whites whose property was seized. One highly publicized case involved a reclusive millionaire, Donald Scott, who was shot and killed when a multiagency task force raided his two-hundred-acre Malibu ranch purportedly in search of marijuana plants. They never found a single marijuana plant in the course of the search. A subsequent investigation revealed that the primary motivation for the
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In another case, William Munnerlynn had his Learjet seized by the DEA after he inadvertently used it to transport a drug dealer. Though charges were dropped against him within seventy-two hours, the DEA refused to return his Learjet. Only after five years of litigation and tens of thousands of dollars in legal fees was he able to secure return of his jet. When the jet was returned, it had sustained $100,000 worth of damage.58 Such cases were atypical but got the attention of Congress.
The overwhelming majority of forfeiture cases do not involve any criminal charges, so the vast majority of people who have their cash, cars, or homes seized must represent themselves in court, against the federal government. Oddly, someone who has actually been charged with a crime is entitled to the appointment of counsel in civil forfeiture proceedings, but those whose property has been forfeited but whose conduct did not merit criminal charges are on their own.
Once arrested, one’s chances of ever being truly free of the system of control are slim, often to the vanishing point. Defendants are typically denied meaningful legal representation, pressured by the threat of a lengthy sentence into a plea bargain, and then placed under formal control—in prison or jail, on probation or parole. Most Americans probably have no idea how common it is for people to be convicted without ever having the benefit of legal representation, or how many people plead guilty to crimes they did not commit because of fear of mandatory sentences.
Approximately 80 percent of criminal defendants are indigent and thus unable to hire a lawyer.
In Virginia, for example, fees paid to court-appointed attorneys for representing someone charged with a felony that carries a sentence of less than twenty years are capped at $428. And in Wisconsin, more than eleven thousand 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 NAACP Legal Defense Fund and the Southern Center for Human Rights in Atlanta sued the city of Gulfport, Mississippi, alleging that the city operated a “modern day debtor’s prison” by jailing poor people who are unable to pay their fines and denying them the right to lawyers.
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.”
“There’s a real disconnect in this country between what people perceive is the state of indigent defense and what it is. I attribute that to shows like Law & Order, where the defendant says, ‘I want a lawyer,’ and all of a sudden Legal Aid appears in the cell. That’s what people think.”68
“The kids come in with their parents, who want to get this dealt with as quickly as possible, and they say, ‘You did it, admit it.’ If people were informed about what could be done, they might actually ask for help.”69
Almost no one ever goes to trial. Nearly all criminal cases are resolved through plea bargaining—a guilty plea by the defendant in exchange for some form of leniency by the prosecutor.
One might think that judges are the most powerful, or even the police, but in reality the prosecutor holds the cards. It is the prosecutor, far more than any other criminal justice official, who holds the keys to the jailhouse door.
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. The typical mandatory sentence for a first-time drug offense in federal court is five or ten years. By contrast, in other developed countries around the world, a first- time drug offense would merit no more than six months in jail, if jail time is imposed at all.
Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause but which they seriously doubt they could ever win in court.71 They “load up” defendants with charges that carry extremely harsh sentences in order to force them to plead guilty to lesser offenses and—here’s the kicker—to obtain testimony for a related case. Harsh sentencing laws encourage people to snitch.
It is impossible to know for certain how many innocent drug defendants convict themselves every year by accepting a plea bargain out of fear of mandatory sentences, or how many are convicted due to lying informants and paid witnesses, but reliable estimates of the number of innocent people currently in prison tend to range from 2 percent to 5 percent.74
While those numbers may sound small (and probably are underestimates), they translate into thousands of innocent people who are locked up, some of whom will die in prison.
The real point here, however, is not that innocent people are locked up. That has been true since penitentiaries first opened in America. The critical point is that 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.
In 1982, the Supreme Court upheld forty years of imprisonment for possession and an attempt to sell 9 ounces of marijuana.76 Several years later, in Harmelin v. Michigan, the Court upheld a sentence of life imprisonment for a defendant with no prior convictions who attempted to sell 672 grams (approximately 23 ounces) of crack cocaine.
This ruling was remarkable given that, prior to the Drug Reform Act of 1986, the longest sentence Congress had ever imposed for possession of any drug in any amount was one year.
A life sentence for a first-time drug offense is unheard of in the rest of the developed world.
In that case, the Court rejected constitutional challenges to sentences of twenty-five years without parole for a man who stole three golf clubs from a pro shop, and fifty years without parole for another man for stealing children’s videotapes from a Kmart store.
