Module 8

Chapter3.pdf

3 T he C olor of Ju s t ic e

Imagine you are Erma Faye Stewart, a thirty-year-old, single Afri-can American mother of two who was arrested as part of a drug sweep in Hearne, Texas.1 All but one of the people arrested were Afri-

can American. You are innocent. After a week in jail, you have no one

to care for your two small children and are eager to get home. Your

court-appointed attorney urges you to plead guilty to a drug distribu-

tion charge, saying the prosecutor has offered probation. You refuse,

steadfastly proclaiming your innocence. Finally, after almost a month

in jail, you decide to plead guilty so you can return home to your chil-

dren. Unwilling to risk a trial and years of imprisonment, you are sen-

tenced to ten years’ probation and ordered to pay $1,000 in fines, as

well as court and probation costs. You are also now branded a drug

felon. You are no longer eligible for food stamps; you may be discrimi-

nated against in employment; you cannot vote for at least twelve years;

and you are about to be evicted from public housing. Once homeless,

your children will be taken from you and put in foster care.

A judge eventually dismisses all cases against the defendants who

did not plead guilty. At trial, the judge finds that the entire sweep was

based on the testimony of a single informant who lied to the pros-

ecution. You, however, are still branded a drug felon, homeless, and

desperate to regain custody of your children. Now place yourself in

the shoes of Clifford Runoalds, another African American victim of

Alexander, Michelle. The New Jim Crow : Mass Incarceration in the Age of Colorblindness, The New Press, 2020. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/utarl/detail.action?docID=5651869. Created from utarl on 2021-11-01 18:35:40.

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the Hearne drug bust.2 You returned home to Bryan, Texas, to attend

the funeral of your eighteen-month-old daughter. Before the funeral

services begin, the police show up and handcuff you. You beg the offi-

cers to let you take one last look at your daughter before she is buried.

The police refuse. You are told by prosecutors that you are needed to

testify against one of the defendants in a recent drug bust. You deny

witnessing any drug transaction; you don’t know what they are talk-

ing about. Because of your refusal to cooperate, you are indicted on

felony charges. After a month of being held in jail, the charges against

you are dropped. You are technically free, but as a result of your arrest

and period of incarceration, you lose your job, your apartment, your

furniture, and your car. Not to mention the chance to say good-bye to

your baby girl.

This is the War on Drugs. The brutal stories described above are

not isolated incidents, nor are the racial identities of Erma Faye

Stewart and Clifford Runoalds random or accidental. In every state

across our nation, African Americans—particularly in the poorest

neighborhoods—are subjected to tactics and practices that would

result in public outrage and scandal if committed in middle-class

white neighborhoods. In the drug war, the enemy is racially defined.

The law enforcement methods described in chapter 2 have been

employed almost exclusively in poor communities of color, resulting

in jaw-dropping numbers of African Americans and Latinos filling our

nation’s prisons and jails every year. We are told by drug warriors that

the enemy in this war is a thing—drugs—not a group of people, but

the facts prove otherwise.

Human Rights Watch reported in 2000 that, in seven states, African

Americans constitute 80 to 90 percent of all those sent to prison on

drug charges.3 In at least fifteen states, blacks are admitted to pris-

on on drug charges at a rate from twenty to fifty-seven times greater

than that of white men.4 In fact, nationwide, the rate of incarceration

for African Americans convicted of drug offenses dwarfs the rate of

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whites. When the War on Drugs gained full steam in the mid- 1980s,

prison admissions for African Americans skyrocketed, nearly quadru-

pling in three years, and then increasing steadily until it reached in

2000 a level more than twenty-six times the level in 1983.5 The number

of 2000 drug admissions for Latinos was twenty-two times the number

of 1983 admissions.6 Whites have been admitted to prison for drug

offenses at increased rates as well—the number of whites admitted for

drug offenses in 2000 was eight times the number admitted in 1983—

but their relative numbers are small compared to blacks’ and Latinos’.7

Although the majority of illegal drug users and dealers nationwide are

white, three-fourths of all people imprisoned for drug offenses have

been black or Latino.8 In recent years, rates of black imprisonment

for drug offenses have dipped somewhat—declining approximately

25 percent from their zenith in the mid-1990s—but it remains the case

that African Americans are incarcerated at grossly disproportionate

rates throughout the United States.9

There is, of course, an official explanation for all of this: crime

rates. This explanation has tremendous appeal—before you know the

facts—for it is consistent with, and reinforces, dominant racial nar-

ratives about crime and criminality dating back to slavery. The truth,

however, is that rates and patterns of drug crime do not explain the

glaring racial disparities in our criminal justice system. People of all

races use and sell illegal drugs at remarkably similar rates.10 If there

are significant differences in the surveys to be found, they frequently

suggest that whites, particularly white youth, are more likely to engage

in illegal drug dealing than people of color.11 One study, for example,

published in 2000 by the National Institute on Drug Abuse report-

ed that white students use cocaine at seven times the rate of black

students, use crack cocaine at eight times the rate of black students,

and use heroin at seven times the rate of black students.12 That same

survey revealed that nearly identical percentages of white and black

high school seniors use marijuana. The National Household Survey

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on Drug Abuse reported in 2000 that white youth aged 12–17 are

more than a third more likely to have sold illegal drugs than African

American youth.13 Thus the very same year Human Rights Watch was

reporting that African Americans were being arrested and imprisoned

at unprecedented rates, government data revealed that blacks were no

more likely to be guilty of drug crimes than whites and that white

youth were actually the most likely of any racial or ethnic group to be

guilty of illegal drug possession and sales. Any notion that drug use

among blacks is more severe or dangerous is belied by the data; white

youth have about three times the number of drug-related emergency

room visits as their African American counterparts.14

The notion that whites comprise the vast majority of drug users

and dealers—and may well be more likely than other racial groups to

commit drug crimes—may seem implausible to some, given the media

imagery we are fed on a daily basis and the racial composition of our

prisons and jails. Upon reflection, however, the prevalence of white

drug crime—including drug dealing—should not be surprising. After

all, where do whites get their illegal drugs? Do they all drive to the

ghetto to purchase them from somebody standing on a street corner?

No. Studies consistently indicate that drug markets, like American

society generally, reflect our nation’s racial and socioeconomic bound-

aries. Whites tend to sell to whites; blacks to blacks.15 University stu-

dents tend to sell to each other.16 Rural whites, for their part, don’t

make a special trip to the ’hood to purchase marijuana. They buy it

from somebody down the road.17 White high school students typically

buy drugs from white classmates, friends, or older relatives. Even Bar-

ry McCaffrey, former director of the White House Office of National

Drug Control Policy, once remarked, if your child bought drugs, “it

was from a student of their own race generally.”18 The notion that most

illegal drug use and sales happens in the ghetto is pure fiction. Drug

trafficking occurs there, but it occurs everywhere else in America as

well. Nevertheless, black men have been admitted to state prison on

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drug charges at a rate that is more than thirteen times higher than that

of white men.19 The racial bias inherent in the drug war is a major rea-

son that 1 in every 14 black men was behind bars in 2006, compared

with 1 in 106 white men.20 For young black men, the statistics are even

worse. One in 9 black men between the ages of twenty and thirty-five

was behind bars in 2006, and far more were under some form of penal

control—such as probation or parole.21 These gross racial disparities

simply cannot be explained by rates of illegal drug activity among

African Americans.

What, then, does explain the extraordinary racial disparities in our

criminal justice system? Old-fashioned racism seems out of the ques-

tion. Politicians and law enforcement officials today rarely endorse

racially biased practices, and most of them fiercely condemn racial

discrimination of any kind. When accused of racial bias, police and

prosecutors—like most Americans—express horror and outrage.

Forms of race discrimination that were open and notorious for cen-

turies were transformed in the 1960s and 1970s into something

un-American—an affront to our newly conceived ethic of color-

blindness. By the early 1980s, survey data indicated that 90 percent

of whites thought black and white children should attend the same

schools, 71 percent disagreed with the idea that whites have a right

to keep blacks out of their neighborhoods, 80 percent indicated they

would support a black candidate for president, and 66 percent opposed

laws prohibiting intermarriage.22 Although far fewer supported spe-

cific policies designed to achieve racial equality or integration (such

as busing), the mere fact that large majorities of whites were, by the

early 1980s, supporting the antidiscrimination principle reflected a

profound shift in racial attitudes. The margin of support for colorblind

norms has only increased since then.

This dramatically changed racial climate has led defenders of mass

incarceration to insist that our criminal justice system, whatever its

past sins, is now largely fair and nondiscriminatory. They point to

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violent crime rates in the African American community as a justifi-

cation for the staggering number of black men who find themselves

behind bars. Black men, they say, have much higher rates of violent

crime; that’s why so many of them are locked up.

Typically, this is where the discussion ends.

The problem with this abbreviated analysis is that violent crime is

not responsible for mass incarceration. As numerous researchers have

shown, violent crime rates have fluctuated over the years and bear lit-

tle relationship to incarceration rates—which have soared during the

past three decades regardless of whether violent crime was going up

or down.23 Today violent crime rates are at historically low levels, yet

incarceration rates continue to climb.

Murder convictions tend to receive a tremendous amount of media

attention, which feeds the public’s sense that violent crime is rampant

and forever on the rise. But like violent crime in general, the mur-

der rate cannot explain the growth of the penal apparatus. Homicide

convictions account for a tiny fraction of the growth in the prison

population. In the federal system, for example, homicide convictions

account for 0.4 percent of the past decade’s growth in the federal pris-

on population, while drug convictions account for nearly 61 percent

of that expansion.24 In the state system, less than 3 percent of new

court commitments to state prison typically involve people convicted

of homicide.25

Roughly half of the people in state prisons are classified as violent

offenders, but that statistic can easily be misinterpreted. The term vio-

lent offender can apply to people who have been convicted of a wide

range of crimes—from fist fights to armed robbery to rape or murder.

The general public seems to imagine that our prisons are filled with

“rapists and murderers,” but they actually account for a small minority

of our nation’s prison population.

Equally important to understand is this: the fact that half of a state’s

prison population is comprised of people who are labeled violent

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offenders does not mean that half of the people sentenced to prison

in that state have been convicted of violent crimes. This may seem

counterintuitive at first, but if you pause to consider how the system

actually operates this fact becomes obvious. People who are convicted

of violent crimes tend to get longer prison sentences than those who

commit nonviolent offenses. As a result, people who are classified as

violent offenders comprise a much larger share of the prison popula-

tion than they would if they had earlier release dates.

A hypothetical scenario may help here. Picture in your mind a prison

hallway lined with cells (ten on each side) that are occupied by people

for varying lengths of time. Imagine that each cell holds two people.

One side of the hallway is reserved for people who have been convicted

of drug or property crimes and who have relatively short sentences

of five years or fewer. The other side of the hallway is reserved for

people who have been convicted of violent crimes and sentenced to

ten years or more (or life imprisonment). During a single decade, more

than a hundred people could cycle in and out of the cages reserved for

people convicted of nonviolent crimes, while the same twenty people

who are locked up for violent crimes on the other side of the hallway

would remain in place. At any given moment, if you were to snap a

picture of that hallway, half the people living in cages would be clas-

sified as “violent offenders.” But this picture would wildly distort your

understanding of the population that had been sentenced to prison

during the past ten years. Although prison hallways are not segregated

in this fashion, some version of this dynamic occurs in prisons across

America, resulting in prisons that are half-filled with people convicted

of violent crimes, even though most people sentenced to prisons and

jails were convicted of lesser offenses.

The most important fact to keep in mind, however, is that debates

about prison statistics typically ignore a key fact: most people who are

under state supervision and control are not in prison. Of the nearly 7.3

million people currently under correctional control, only 2.3 million

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are in prison or jail.26 The rest are on probation or parole. More than 4

million people are on probation in the United States (roughly twice the

number in prison) and only 19 percent of them were convicted of a vio-

lent offense. Similarly, the overwhelming majority of people on parole

were convicted of nonviolent crimes.27 The most common offense for

which people are placed on probation or parole is a drug offense.28

Even if the analysis is limited to felonies—thus excluding extremely

minor crimes and misdemeanors—nonviolent offenses predominate.

Only about a quarter of felony defendants in large urban counties were

charged with a violent offense in 2006.29

Nevertheless, politicians, law enforcement officials, and journalists

routinely create the false impression that most people branded crimi-

nals have been convicted of violent crimes. They point to the current

composition of state prisons as “proof” of this imagined fact, ignoring

that sentencing practices distort our understanding of who is placed

under state control and why. 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 people safe. In fact,

the system is primarily concerned with the perpetual control and mar-

ginalization of the dispossessed.

None of this is to suggest that we ought not be concerned about vio-

lent crime. Nor is it to say that we should not care about people serv-

ing time for violent offenses. We should care deeply about all people

impacted, including people who live in fear of violence, people who

are survivors, and those who commit violent crimes. Often these cat-

egories overlap, since nearly everyone who engages in violence first

survives it. If we truly want to end violence in our communities, we

must come to understand, as discussed in the final chapter, the ways

in which mass incarceration increases—not decreases—violence and

multiplies its harms. But at the same time, we ought not be misled by

those who insist that violent crime has driven the rise of this unprec-

edented system of racial and social control. The uncomfortable reality

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is that a literal war has been waged on our most vulnerable commu-

nities, and convictions for relatively minor, nonviolent offenses have

propelled mass incarceration. In many states, including Colorado and

Maryland, people convicted of drug offenses now constitute the sin-

gle largest category of people admitted to prison.30 People of color are

convicted of drug offenses at rates out of all proportion to their drug

crimes, a fact that has greatly contributed to the emergence of a vast

new racial undercaste—a system of mass incarceration that governs

the lives of millions of people inside and outside of prison walls.

These facts may still leave some readers unsatisfied. The idea that

the criminal justice system discriminates in such a terrific fashion

when few people openly express or endorse racial discrimination may

seem far-fetched, if not absurd. How could the War on Drugs operate

in a discriminatory manner, on such a large scale, when hardly anyone

advocates or engages in explicit race discrimination? That question is

the subject of this chapter. As we shall see, despite the colorblind rhet-

oric and fanfare of recent years, the design of the drug war effectively

guarantees that those who are swept into the nation’s new undercaste

are largely black and brown.

This sort of claim invites skepticism. Nonracial explanations and

excuses for the systematic mass incarceration of people of color are

plentiful. It is the genius of the new system of control that it can always

be defended on nonracial grounds, given the rarity of a noose or a

racial slur in connection with any particular criminal case. Moreover,

because blacks and whites are almost never similarly situated (given

extreme racial segregation in housing and disparate life experiences),

trying to “control for race” in an effort to evaluate whether the mass

incarceration of people of color is really about race or something else—

anything else—is difficult. But it is not impossible.

A bit of common sense is overdue in public discussions about racial

bias in the criminal justice system. The great debate over whether

black men have been targeted by the criminal justice system or unfair-

ly treated in the War on Drugs often overlooks the obvious. What is

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painfully obvious when one steps back from individual cases and spe-

cific policies is that the system of mass incarceration operates with

stunning efficiency to sweep people of color off the streets, lock them

in cages, and then release them into an inferior second-class status.

Nowhere is this more true than in the War on Drugs.

The central question, then, is how exactly does a formally color-

blind criminal justice system achieve such racially discriminatory

results? Rather easily, it turns out. The process occurs in two stages.

The first step is to grant law enforcement officials extraordinary dis-

cretion regarding whom to stop, search, arrest, and charge for drug

offenses, thus ensuring that conscious and unconscious racial beliefs

and stereotypes will be given free rein. Unbridled discretion inevita-

bly creates huge racial disparities. Then, the damning step: close the

courthouse doors to all claims by defendants and private litigants that

the criminal justice system operates in racially discriminatory fashion.

Demand that anyone who wants to challenge racial bias in the system

offer, in advance, clear proof that the racial disparities are the prod-

uct of intentional racial discrimination—i.e., the work of a bigot. This

evidence will almost never be available in the era of colorblindness,

because everyone knows—but does not say—that the enemy in the

War on Drugs can be identified by race. This simple design has helped

to produce one of the most extraordinary systems of racialized social

control the world has ever seen.

Picking and Choosing—The Role of Discretion

Chapter 2 described the first step in some detail, including the legal

rules that grant police the discretion and authority to stop, interro-

gate, and search anyone, anywhere, provided they get “consent” from

the targeted individual. It also examined the legal framework that

affords prosecutors extraordinary discretion to charge or not charge,

plea bargain or not, and load up defendants with charges carrying the

threat of harsh mandatory sentences in order to force guilty pleas, even

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in cases in which the defendants may well be innocent. These rules

have made it possible for law enforcement agencies to boost dramati-

cally their rates of drug arrests and convictions, even in communities

where drug crime is stable or declining.31 But that is not all. These

rules have also guaranteed racially discriminatory results.

The reason is this: drug-law enforcement is unlike most other types

of law enforcement. When a violent crime or a robbery occurs, the

criminal activity usually causes harm or violates someone’s rights.

But with drug crime, neither the purchaser of the drugs nor the seller

has any incentive to contact law enforcement. It is consensual activity.

Equally important, it is popular. The clear majority of Americans of all

races have violated drug laws in their lifetime. In fact, in any given year,

more than one in ten Americans violate drug laws. But due to resource

constraints (and the politics of the drug war), only a small fraction are

arrested, convicted, and incarcerated. In 2002, for example, there were

19.5 million illicit drug users, compared to 1.5 million drug arrests

and 175,000 people admitted to prison for a drug offense.32

The ubiquity of illegal drug activity, combined with its consensual

nature, requires a far more proactive approach by law enforcement

than what is required to address ordinary street crime. It is impos-

sible for law enforcement to identify and arrest everyone who commits

a drug crime. Strategic choices must be made about whom to target

and what tactics to employ. Police and prosecutors did not declare the

War on Drugs—and some initially opposed it—but once the finan-

cial incentives for waging the war became too attractive to ignore, law

enforcement agencies had to ask themselves, if we’re going to wage

this war, where should it be fought and who should be taken prisoner?

That question was not difficult to answer, given the political and

social context. As discussed in chapter 1, the Reagan administra-

tion launched a media campaign a few years after the drug war was

announced in an effort to publicize horror stories involving black

crack users and crack dealers in ghetto communities. Although crack

cocaine had not yet hit the streets when the War on Drugs was declared

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in 1982, its appearance a few years later created the perfect opportuni-

ty for the Reagan administration to build support for its new war. Drug

use, once considered a private, public-health matter, was reframed

through political rhetoric and media imagery as a grave threat to the

national order.

Jimmie Reeves and Richard Campbell show in their research how

the media imagery surrounding cocaine changed as the practice of

smoking cocaine came to be associated with poor blacks.33 Early in

the 1980s, the typical cocaine-related story focused on white recre-

ational users who snorted the drug in its powder form. These stories

generally relied on news sources associated with the drug treatment

industry, such as rehabilitation clinics, and emphasized the possibility

of recovery. By 1985, however, as the War on Drugs moved into high

gear, this frame was supplanted by a new “siege paradigm,” in which

transgressors were poor, nonwhite users and dealers of crack cocaine.

Law enforcement officials assumed the role of drug “experts,” empha-

sizing the need for law and order responses—a crackdown on those

associated with the drug. These findings are consistent with numerous

other studies, including a study of network television news from 1990

and 1991, which found that a predictable “us against them” frame was

used in the news stories, with “us” being white, suburban America,

and “them” being black Americans and a few corrupted whites.34

The media bonanza inspired by the administration’s campaign solid-

ified in the public imagination the image of the black drug criminal.

Although explicitly racial political appeals remained rare, the calls for

“war” at a time when the media was saturated with images of black

drug crime left little doubt about who the enemy was in the War on

Drugs and exactly what he looked like. Jerome Miller, the former exec-

utive director of the National Center for Institutions and Alternatives,

described the dynamic this way: “There are certain code words that

allow you never to have to say ‘race,’ but everybody knows that’s what

you mean and ‘crime’ is one of those. . . . So when we talk about locking

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up more and more people, what we’re really talking about is locking

up more and more black men.”35 Another commentator noted, “It is

unnecessary to speak directly of race [today] because speaking about

crime is talking about race.”36 Indeed, not long after the drug war was

ramped up in the media and political discourse, almost no one imag-

ined that “drug criminals” could be anything other than black.

A survey was conducted in 1995 asking the following question:

“Would you close your eyes for a second, envision a drug user, and

describe that person to me?” The startling results were published

in the Journal of Alcohol and Drug Education. Ninety-five percent of

respondents pictured a black drug user, while only 5 percent imagined

other racial groups.37 These results contrast sharply with the reality of

drug crime in America. African Americans constituted only 15 percent

of current drug users in 1995, and they constitute roughly the same

percentage today. Whites constituted the vast majority of drug users

then (and now), but almost no one pictured a white person when asked

to imagine what a drug user looks like. The same group of respondents

also perceived the typical drug trafficker as black.

There is no reason to believe that the survey results would have been

any different if police officers or prosecutors—rather than the general

public—had been the respondents. Law enforcement officials, no less

than the rest of us, have been exposed to the racially charged political

rhetoric and media imagery associated with the drug war. In fact, for

nearly three decades, news stories regarding virtually all street crime

have disproportionately featured African Americans. One study sug-

gests that the standard crime news “script” is so prevalent and so thor-

oughly racialized that viewers imagine a black perpetrator even when

none exists. In that study, 60 percent of viewers who saw a story with

no image falsely recalled seeing one, and 70 percent of those viewers

believed the perpetrator to be African American.38

Decades of cognitive bias research demonstrates that both uncon-

scious and conscious biases lead to discriminatory actions, even when

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an individual does not want to discriminate.39 The quotation, commonly

attributed to Nietzsche, that “there is no immaculate perception,” per-

fectly captures how cognitive schemas—thought structures—influence

what we notice and how the things we notice get interpreted.40 Studies

have shown that racial schemas operate not only as part of conscious,

rational deliberations, but also automatically—without conscious

awareness or intent.41 One study, for example, involved a video game

that placed photographs of white and black individuals holding either

a gun or other object (such as a wallet, soda can, or cell phone) into

various photographic backgrounds. Participants were told to decide

as quickly as possible whether to shoot the target. Consistent with

earlier studies, participants were more likely to mistake a black target

as armed when he was not and mistake a white target as unarmed

when in fact he was armed.42 This pattern of discrimination reflected

automatic, unconscious thought processes, not careful deliberations.

Most striking, perhaps, is the overwhelming evidence that implic-

it bias measures are disassociated from explicit bias measures.43 In

other words, the fact that you may honestly believe that you are not

biased against African Americans, and that you may even have black

friends or relatives, does not mean that you are free from unconscious

bias. Implicit bias tests may still show that you hold negative attitudes

and stereotypes about blacks, even though you do not believe you

do and do not want to.44 In the study described above, for example,

black participants showed an amount of “shooter bias” similar to that

shown by whites.45 Not surprisingly, people who have the greatest

explicit bias (as measured by self-reported answers to survey ques-

tions) against a racial group tend also to have the greatest implicit bias

against them, and vice versa.46 Yet there is often a weak correlation

between degrees of explicit and implicit bias; many people who think

they are not biased prove when tested to have relatively high levels of

bias.47 Unfortunately, a fairly consistent finding is that punitiveness

and hostility almost always increase when people are primed—even

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subliminally—with images or verbal cues associated with African

Americans. In fact, studies indicate that people become increas-

ingly harsh when a criminal suspect is darker and more “stereotypi-

cally black”; they are more lenient when the accused is lighter and

appears more stereotypically white. This is true of jurors as well as

law enforcement officers.48

Viewed as a whole, the relevant research by cognitive and social psy-

chologists to date suggests that racial bias in the drug war was inevi-

table, once a public consensus was constructed by political and media

elites that drug crime is black and brown. Once blackness and crime,

especially drug crime, became conflated in the public consciousness,

the “criminalblackman,” as termed by legal scholar Kathryn Russell,

would inevitably become the primary target of law enforcement.49

Some discrimination would be conscious and deliberate, as many

honestly and consciously would believe that black men deserve extra

scrutiny and harsher treatment. Much racial bias, though, would oper-

ate unconsciously and automatically—even among law enforcement

officials genuinely committed to equal treatment under the law.

Whether or not one believes racial discrimination in the drug war

was inevitable, it should have been glaringly obvious in the 1980s and

1990s that an extraordinarily high risk of racial bias in the administra-

tion of criminal justice was present, given the way in which all crime

had been framed in the media and in political discourse. Awareness

of this risk did not require intimate familiarity with cognitive bias

research. Anyone possessing a television set during this period would

likely have had some awareness of the extent to which black men had

been demonized in the War on Drugs.

The risk that African Americans would be unfairly targeted should

have been of special concern to the U.S. Supreme Court—the one

branch of government charged with the responsibility of protecting

“discrete and insular minorities” from the excesses of majoritarian

democracy and guaranteeing constitutional rights for groups deemed

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unpopular or subject to prejudice.50 Yet when the time came for the

Supreme Court to devise the legal rules that would govern the War on

Drugs, the Court adopted rules that would maximize—not minimize—

the amount of racial discrimination that would likely occur. It then

closed the courthouse doors to claims of racial bias.

Whren v. United States is a case in point. As noted in chapter 2, the

Court held in Whren that police officers are free to use minor traffic

violations as an excuse to stop motorists for drug investigations—even

when there is no evidence whatsoever that the motorist has engaged

in drug crime. So long as a minor traffic violation—such as failing to

use a turn signal, exceeding the speed limit by a mile or two, tracking

improperly between the lines, or stopping on a pedestrian walkway—

can be identified, police are free to stop motorists for the purpose of

engaging in a fishing expedition for drugs. Such police conduct, the

Court concluded, does not violate the Fourth Amendment’s ban on

“unreasonable searches and seizures.”51

For good reason, the petitioners in Whren argued that granting

police officers such broad discretion to investigate virtually anyone

for drug crimes created a high risk that police would exercise their

discretion in a racially discriminatory manner. With no requirement

that any evidence of drug activity actually be present before launching

a drug investigation, police officers’ snap judgments regarding who

seems like a drug criminal would likely be influenced by prevailing

racial stereotypes and bias. They urged the Court to prohibit the police

from stopping motorists for the purpose of drug investigations unless

the officers actually had reason to believe a motorist was committing,

or had committed, a drug crime. Failing to do so, they argued, was

unreasonable under the Fourth Amendment and would expose Afri-

can Americans to a high risk of discriminatory stops and searches.

Not only did the Court reject the petitioners’ central claim—

that using traffic stops as a pretext for drug investigations is

unconstitutional—it ruled that claims of racial bias could not be

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brought under the Fourth Amendment. In other words, the Court

barred any victim of race discrimination by the police from even alleg-

ing a claim of racial bias under the Fourth Amendment. According

to the Court, whether or not police discriminate on the basis of race

when making traffic stops is irrelevant to a consideration of whether

their conduct is “reasonable” under the Fourth Amendment.

The Court did offer one caveat, however. It indicated that victims of

race discrimination could still state a claim under the equal protection

clause of the Fourteenth Amendment, which guarantees “equal treat-

ment under the laws.” This suggestion may have been reassuring to

those unfamiliar with the Court’s equal protection jurisprudence. But

for those who have actually tried to prove race discrimination under

the Fourteenth Amendment, the Court’s remark amounted to cruel

irony. As we shall see below, the Supreme Court has made it virtually

impossible to challenge racial bias in the criminal justice system under

the Fourteenth Amendment, and it has barred litigation of such claims

under federal civil rights laws as well.

Closing the Courthouse Doors—McCleskey v. Kemp

First, consider sentencing. In 1987, when media hysteria regarding

black drug crime was at fever pitch and the evening news was satu-

rated with images of black men shackled in courtrooms, the Supreme

Court ruled in McCleskey v. Kemp 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. On its face, the case appeared to be

a straightforward challenge to Georgia’s death penalty scheme. Once

the Court’s opinion was released, however, it became clear the case

was about much more than the death penalty. The real issue at hand

was whether—and to what extent—the Supreme Court would tolerate

racial bias in the criminal justice system as a whole. The Court’s answer

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was that racial bias would be tolerated—virtually to any degree—so

long as no one admitted it.

Warren McCleskey was a black man facing the death penalty for

killing a white police officer during an armed robbery in Georgia. Rep-

resented by the NAACP Legal Defense and Education Fund, McCles-

key challenged his death sentence on the grounds that Georgia’s

death penalty scheme was infected with racial bias and thus violated

the Fourteenth and Eighth Amendments. In support of his claim, he

offered an exhaustive study of more than two thousand murder cases

in Georgia. The study was known as the Baldus study—named after

Professor David Baldus, who was its lead author. The study found

that defendants charged with killing white victims received the death

penalty eleven times more often than defendants charged with kill-

ing black victims. Georgia prosecutors seemed largely to blame for the

disparity; they sought the death penalty in 70 percent of cases involv-

ing black defendants and white victims, but only 19 percent of cases

involving white defendants and black victims.52

Sensitive to the fact that numerous factors besides race can influ-

ence the decision making of prosecutors, judges, and juries, Baldus and

his colleagues subjected the raw data to highly sophisticated statistical

analysis to see if nonracial factors might explain the disparities. Yet

even after accounting for thirty-five nonracial variables, the research-

ers found that defendants charged with killing white victims were 4.3

times more likely to receive a death sentence than defendants charged

with killing blacks. Black defendants, like McCleskey, who killed white

victims had the highest chance of being sentenced to death in Georgia.53

The case was closely watched by criminal lawyers and civil rights

lawyers nationwide. The statistical evidence of discrimination that

Baldus had developed was the strongest ever presented to a court

regarding race and criminal sentencing. If McCleskey’s evidence was

not enough to prove discrimination in the absence of some kind of rac-

ist utterance, what would be?

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By a one-vote margin, the Court rejected McCleskey’s claims under

the Fourteenth Amendment, insisting that unless McCleskey could

prove that the prosecutor in his particular case had sought the death

penalty because of race or that the jury had imposed it for racial rea-

sons, the statistical evidence of race discrimination in Georgia’s death

penalty system did not prove unequal treatment under the law. The

Court accepted the statistical evidence as valid but insisted that evi-

dence of conscious, racial bias in McCleskey’s individual case was

necessary to prove unlawful discrimination. In the absence of such

evidence, patterns of discrimination—even patterns as shocking as

demonstrated by the Baldus study—did not violate the Fourteenth

Amendment.

In erecting this high standard, the Court knew full well that the

standard could not be met absent an admission that a prosecutor

or judge acted because of racial bias. The majority opinion openly

acknowledged that long-standing rules generally bar litigants from

obtaining discovery from the prosecution regarding charging pat-

terns and motives, and that similar rules forbid introduction of evi-

dence of jury deliberations even when a juror has chosen to make

deliberations public.54 The very evidence that the Court demanded in

McCleskey—evidence of deliberate bias in his individual case—would

almost always be unavailable and/or inadmissible due to procedural

rules that shield jurors and prosecutors from scrutiny. This dilemma

was of little concern to the Court. It closed the courthouse doors to

claims of racial bias in sentencing.

There is good reason to believe that, despite appearances, the McCles-

key decision was not really about the death penalty at all; rather, the

Court’s opinion was driven by a desire to immunize the entire crimi-

nal justice system from claims of racial bias. The best evidence in sup-

port of this view can be found at the end of the majority opinion where

the Court states that discretion plays a necessary role in the imple-

mentation of the criminal justice system, and that discrimination is an

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inevitable by-product of discretion. Racial discrimination, the Court

seemed to suggest, was something that simply must be tolerated in the

criminal justice system, provided no one admits to racial bias.

The majority observed that significant racial disparities had been

found in other criminal settings beyond the death penalty, and that

McCleskey’s case implicitly calls into question the integrity of the

entire system. In the Court’s words: “Taken to its logical conclusion,

[Warren McCleskey’s claim] throws into serious question the prin-

ciples that underlie our criminal justice system. . . . [I]f we accepted

McCleskey’s claim that racial bias has impermissibly tainted the capi-

tal sentencing decision, we could soon be faced with similar claims

as to other types of penalty.”55 The Court openly worried that other

actors in the criminal justice system might also face scrutiny for alleg-

edly biased decision making if similar claims of racial bias in the sys-

tem were allowed to proceed. Driven by these concerns, the Court

rejected McCleskey’s claim that Georgia’s death penalty system vio-

lates the Eighth Amendment’s ban on arbitrary punishment, framing

the critical question as whether the Baldus study demonstrated a “con-

stitutionally unacceptable risk” of discrimination. Its answer was no.

The Court deemed the risk of racial bias in Georgia’s capital sentenc-

ing scheme “constitutionally acceptable.” Justice Brennan pointedly

noted in his dissent that the Court’s opinion “seems to suggest a fear

of too much justice.”56

Cracked Up—Discriminatory Sentencing in the War on Drugs

Anyone who doubts the devastating impact of McCleskey v. Kemp on

African American defendants throughout the criminal justice system,

including those ensnared by the War on Drugs, need only ask Edward

Clary. Two months after his eighteenth birthday, Clary was stopped

and searched in the St. Louis airport because he “looked like” a drug

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courier. At the time, he was returning home from visiting some friends

in California. One of them persuaded him to take some drugs back

home to St. Louis. Clary had never attempted to deal drugs before, and

he had no criminal record.

During the search, the police found crack cocaine and promptly

arrested him. He was convicted in federal court and sentenced under

federal laws that punish crack offenses one hundred times more

severely than offenses involving powder cocaine. A conviction for the

sale of five hundred grams of powder cocaine triggers a five-year man-

datory sentence, while only five grams of crack triggers the same sen-

tence. Because Clary had been caught with more than fifty grams of

crack (less than two ounces), the sentencing judge believed he had no

choice but to sentence him—an eighteen-year-old who had no crimi-

nal record—to a minimum of ten years in federal prison.

Clary, like defendants in other crack cases, challenged the consti-

tutionality of the hundred-to-one ratio. His lawyers argued that the

law is arbitrary and irrational, because it imposes such vastly different

penalties on two forms of the same substance. They also argued that

the law discriminates against African Americans, because the major-

ity of those charged with crimes involving crack at that time were

black (approximately 93 percent of those convicted of crack offenses

were black; 5 percent were white), whereas those convicted of powder

cocaine offenses were predominantly white.

Every federal appellate court to have considered these claims

had rejected them on the ground that Congress— rightly or

wrongly— believed that crack was more dangerous to society, a view

supported by the testimony of some drug- abuse “experts” and police

officers. The fact that most of the evidence in support of any disparity

had since been discredited was deemed irrelevant; what mattered was

whether the law had seemed rational at the time it was adopted. Con-

gress, the courts concluded, is free to amend the law if circumstances

have changed.

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Courts also had rejected claims that crack sentencing laws were

racially discriminatory, largely on the grounds that the Supreme

Court’s decision in McCleskey v. Kemp precluded such a result. In the

years following McCleskey, lower courts consistently rejected claims of

race discrimination in the criminal justice system, finding that gross

racial disparities do not merit strict scrutiny in the absence of evidence

of explicit race discrimination—the very evidence unavailable in the

era of colorblindness.

Judge Clyde Cahill of the Federal District of Missouri, an African

American judge assigned Clary’s case, boldly challenged the prevailing

view that courts are powerless to address forms of race discrimina-

tion that are not overtly hostile. Cahill declared the hundred-to-one

ratio racially discriminatory in violation of the Fourteenth Amend-

ment, notwithstanding McCleskey.57 Although no admissions of racial

bias or racist intent could be found in the record, Judge Cahill believed

race was undeniably a factor in the crack sentencing laws and policies.

He traced the history of the get-tough movement and concluded that

fear coupled with unconscious racism had led to a lynch-mob men-

tality and a desire to control crime—and those deemed responsible

for it—at any cost. Cahill acknowledged that many people may not

believe they are motivated by discriminatory attitudes but argued that

we all have internalized fear of young black men, a fear reinforced by

media imagery that has helped to create a national image of the young

black male as a criminal. “The presumption of innocence is now a

legal myth,” he declared. “The 100-to-1 ratio, coupled with mandatory

minimum sentencing provided by federal statute, has created a situa-

tion that reeks with inhumanity and injustice. . . . If young white males

were being incarcerated at the same rate as young black males, the

statute would have been amended long ago.” Judge Cahill sentenced

Clary as if the drug he had carried home had been powder cocaine.

The sentence imposed was four years in prison. Clary served his term

and was released.

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The prosecution appealed Clary’s case to the Eighth Circuit Court

of Appeals, which reversed Judge Cahill in a unanimous opinion, find-

ing that the case was not even close. In the court’s view, there was

no credible evidence that the crack penalties were motivated by any

conscious racial bigotry, as required by McCleskey v. Kemp. The court

remanded the case back to the district court for resentencing. Clary—

now married and a father—was ordered back to prison to complete his

ten-year term.58

Few challenges to sentencing schemes, patterns, or results have

been brought since McCleskey, for the exercise is plainly futile. Yet in

1995, a few brave souls challenged the implementation of Georgia’s

“two strikes and you’re out” sentencing scheme, which imposes life

imprisonment for a second drug offense. Georgia’s district attorneys,

who have unbridled discretion to decide whether to seek this harsh

penalty, had invoked it against only 1 percent of white defendants fac-

ing a second drug conviction but against 16 percent of black defen-

dants. The result was that 98.4 percent of those serving life sentences

under the provision were black. The Georgia Supreme Court ruled,

by a 4–3 vote, that the stark racial disparity presented a threshold

case of discrimination and required the prosecutors to offer a race-

neutral explanation for the results. Rather than offer a justification,

however, the Georgia attorney general filed a petition for rehearing

signed by every one of the state’s forty-six district attorneys, all of

whom were white. The petition argued that the Court’s decision was

a dire mistake; if the decision were allowed to stand and prosecutors

were compelled to explain gross racial disparities such as the ones at

issue, it would be a “substantial step toward invalidating” the death

penalty and would “paralyze the criminal justice system”—apparently

because severe and inexplicable racial disparities pervaded the system

as a whole. Thirteen days later, the Georgia Supreme Court reversed

itself, holding that the fact that 98.4 percent of the defendants selected

to receive life sentences for repeat drug offenses were black required

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no justification. The court’s new decision relied almost exclusively on

McCleskey v. Kemp. To date, not a single successful challenge has ever

been made to racial bias in sentencing under McCleskey v. Kemp any-

where in the United States.

Charging A head—United States v. Armstrong

If sentencing were the only stage of the criminal justice process in

which racial biases were allowed to flourish, it would be a tragedy of

gargantuan proportions. Thousands of people have had years of their

lives wasted in prison—years they would have been free if they had

been white. Some, like McCleskey, have been killed because of the

influence of race in the death penalty. Sentencing, however, is not the

end, but just the beginning. As we shall see, the legal rules governing

prosecutions, like those that govern sentencing decisions, maximize

rather than minimize racial bias in the drug war. The Supreme Court

has gone to great lengths to ensure that prosecutors are free to exer-

cise their discretion in any manner they choose, and it has closed the

courthouse doors to claims of racial bias.

As discussed in chapter 2, no one has more power in the criminal

justice system than prosecutors. Few rules constrain the exercise of

prosecutorial discretion. The prosecutor is free to dismiss a case for

any reason or no reason at all, regardless of the strength of the evi-

dence. The prosecutor is also free to file more charges against a defen-

dant than can realistically be proven in court, so long as probable cause

arguably exists. Whether a good plea deal is offered to a defendant is

entirely up to the prosecutor. And if the mood strikes, the prosecutor

can transfer drug defendants to the federal system, where the penalties

are far more severe. Juveniles, for their part, can be transferred to adult

court, where they can be sent to adult prison. Angela J. Davis, in her

authoritative study Arbitrary Justice: The Power of the American Pros-

ecutor, observes that “the most remarkable feature of these important,

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sometimes life-and- death decisions is that they are totally discretion-

ary and virtually unreviewable.”59 Most prosecutors’ offices lack any

manual or guidebook advising prosecutors how to make discretionary

decisions. Even the American Bar Association’s standards of practice

for prosecutors are purely aspirational; no prosecutor is required to

follow the standards or even consider them.

Christopher Lee Armstrong learned the hard way that the Supreme

Court has little interest in ensuring that prosecutors exercise their

extraordinary discretion in a manner that is fair and nondiscrimi-

natory. He, along with four of his companions, was staying at a Los

Angeles motel in April 1992 when federal and state agents on a joint

drug crime task force raided their room and arrested them on fed-

eral drug charges—conspiracy to distribute more than fifty grams of

crack cocaine. The federal public defenders assigned to Armstrong’s

case were disturbed by the fact that Armstrong and his friends had

something in common with every other crack defendant their office

had represented during the past year: they were all black. In fact, of

the fifty-three crack cases their office had handled over the prior three

years, forty-eight defendants were black, five were Hispanic, and not

a single one was white. Armstrong’s lawyers found it puzzling that no

whites had been charged with crack offenses, given that most crack

users are white. They suspected that whites were being diverted by

federal prosecutors to the state system, where the penalties for crack

offenses were far less severe. The only way to prove this, though,

would be to gain access to the prosecutors’ records and find out just

how many white defendants were transferred to the state system and

why. Armstrong’s lawyers thus filed a motion asking the district court

for discovery of the prosecutors’ files to support their claim of selective

prosecution under the Fourteenth Amendment.

Nearly one hundred years earlier, in a case called Yick Wo v.

Hopkins, the Supreme Court had recognized that racially selec-

tive enforcement violates equal protection of the laws. In that case,

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decided in 1886, the Court unanimously overturned convictions of

two Chinese men who were operating laundries without a license.

San Francisco had denied licenses to all Chinese applicants, but grant-

ed licenses to all but one of the non-Chinese laundry operators who

applied. Law enforcement arrested more than a hundred people for

operating laundries without licenses, and every one of the arrestees

was Chinese. Overturning Yick Wo’s conviction, the Supreme Court

declared in a widely quoted passage, “Though the law itself be fair

on its face, and impartial in appearance, yet, if it is applied and

administered by public authority with an evil eye and an unequal

hand, so as practically to make unjust and illegal discriminations,

between persons in similar circumstances . . . the denial of equal

justice is still within the prohibition of the Constitution.”60 Arm-

strong’s lawyers sought to prove that, like the law at issue in Yick Wo,

federal crack laws were fair on their face and impartial in their

appearance, but were selectively enforced in a racially discriminatory

manner.

In support of their claim that Armstrong should, at the very least,

be entitled to discovery, Armstrong’s lawyers offered two sworn affi-

davits. One was from a halfway house intake coordinator who testi-

fied that, in his experience treating crack addicts, whites and blacks

dealt and used the drugs in similar proportions. The other affidavit

was from a defense attorney who had extensive experience in state

prosecutions. He testified that nonblack defendants were routinely

prosecuted in state, rather than federal, court. Arguably the best evi-

dence in support of Armstrong’s claims came from the government,

which submitted a list of more than two thousand people charged

with federal crack cocaine violations over a three-year period, all but

eleven of whom were black. None were white.

The district court ruled that the evidence presented was sufficient to

justify discovery for the purposes of determining whether the allega-

tions of selective enforcement were valid. The prosecutors, however,

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refused to release any records and appealed the issue all the way to

the U.S. Supreme Court. In May 1996, the Supreme Court reversed. As

in McCleskey, the Court did not question the accuracy of the evidence

submitted, but ruled that because Armstrong failed to identify any

similarly situated white defendants who should have been charged in

federal court but were not, he was not entitled even to discovery on his

selective- prosecution claim. With no trace of irony, the Court demand-

ed that Armstrong produce in advance the very thing he sought in

discovery: information regarding white defendants who should have

been charged in federal court. That information, of course, was in the

prosecution’s possession and control, which is why Armstrong filed a

discovery motion in the first place.

As a result of the Armstrong decision, defendants who suspect racial

bias on the part of prosecutors are trapped in a classic catch-22. In order

to state a claim of selective prosecution, they are required to offer in

advance the very evidence that generally can be obtained only through

discovery of the prosecutor’s files. The Court justified this insurmount-

able hurdle on the grounds that considerable deference is owed the

exercise of prosecutorial discretion. Unless evidence of conscious,

intentional bias on the part of the prosecutor could be produced, the

Court would not allow any inquiry into the reasons for or causes of

apparent racial disparities in prosecutorial decision making. Again the

courthouse doors were closed, for all practical purposes, to claims of

racial bias in the administration of the criminal justice system.

Immunizing prosecutors from claims of racial bias and failing to

impose any meaningful check on the exercise of their discretion in

charging, plea bargaining, transferring cases, and sentencing has cre-

ated an environment in which conscious and unconscious biases are

allowed to flourish. Numerous studies have shown that prosecutors

interpret and respond to identical criminal activity differently based

on the race of the person charged with the crime.61 One widely cited

study was conducted by the San Jose Mercury News. The study reviewed

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seven hundred thousand criminal cases that were matched by crime

and criminal history of the defendant. The analysis revealed that sim-

ilarly situated whites were far more successful than African Ameri-

cans and Latinos in the plea bargaining process; in fact, “at virtually

every stage of pretrial negotiation, whites are more successful than

nonwhites.” 62

The most comprehensive studies of racial bias in the exercise of

prosecutorial and judicial discretion involve the treatment of juve-

niles. These studies have shown that youth of color are more likely

to be arrested, detained, formally charged, transferred to adult court,

and confined to secure residential facilities than their white counter-

parts.63 A report in 2000 observed that among youth who have never

been sent to a juvenile prison before, African Americans were more

than six times as likely as whites to be sentenced to prison for identical

crimes.64 A study sponsored by the U.S. Justice Department and sev-

eral of the nation’s leading foundations, published in 2007, found that

the impact of the biased treatment is magnified with each additional

step into the criminal justice system. African American youth account

for 16 percent of all youth, 28 percent of all juvenile arrests, 35 percent

of the youth waived to adult criminal court, and 58 percent of youth

admitted to state adult prison.65 A major reason for these disparities is

unconscious and conscious racial biases infecting decision making. In

the state of Washington, for example, a review of juvenile sentencing

reports found that prosecutors routinely described black and white

youth differently.66 Blacks committed crimes because of internal per-

sonality flaws such as disrespect. Whites did so because of external

conditions such as family conflict.

The risk that prosecutorial discretion will be racially biased is espe-

cially acute in the drug enforcement context, where virtually iden-

tical behavior is susceptible to a wide variety of interpretations and

responses and the media imagery and political discourse have been

so thoroughly racialized. Whether a kid is perceived as a dangerous

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drug- dealing thug or instead is viewed as a good kid who was merely

experimenting with drugs and selling to a few of his friends has to

do with the ways in which information about illegal drug activity is

processed and interpreted, in a social climate in which drug dealing is

racially defined. As a former U.S. attorney explained:

I had an [assistant U.S. attorney who] wanted to drop the

gun charge against the defendant [in a case in which] there

were no extenuating circumstances. I asked, “Why do you

want to drop the gun offense?” And he said, “ ‘He’s a rural

guy and grew up on a farm. The gun he had with him was

a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles,

and it’s not like he was a gun- toting drug dealer.” But he

was a gun- toting drug dealer, exactly.

The decision in Armstrong effectively shields this type of biased

decision making from judicial scrutiny for racial bias. Prosecutors

are well aware that the exercise of their discretion is unchecked, pro-

vided no explicitly racist remarks are made, as it is next to impos-

sible for defendants to prove racial bias. It is difficult to imagine a

system better designed to ensure that 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 U.S. Supreme Court.

In Defense of the A ll-W hite Jury—Purkett v. Elm

The rules governing jury selection provide yet another illustration of

the Court’s complete abdication of its responsibility to guarantee racial

minorities equal treatment under the law. In 1985, in Batson v. Kentucky,

the Court held that the Fourteenth Amendment prohibits prosecutors

from discriminating on the basis of race when selecting juries, a rul-

ing hailed as an important safeguard against all-white juries locking

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up African Americans based on racial biases and stereotypes. Prior

to Batson, prosecutors had been allowed to strike blacks from juries,

provided they did not always strike black jurors. The Supreme Court

had ruled in 1965, in Swain v. Alabama, that an equal-protection claim

would arise only if a defendant could prove that a prosecutor struck

African American jurors in every case, regardless of the crime involved

or regardless of the races of the defendant or the victim.67 Two decades

later, in Batson, the Supreme Court reversed course, a nod to the newly

minted public consensus that explicit race discrimination is an affront

to American values. Almost immediately after Batson was decided, how-

ever, it became readily apparent that prosecutors had no difficulty cir-

cumventing the formal requirement of colorblindness in jury selection

by means of a form of subterfuge the Court would come to accept, if not

endorse.

The history of race discrimination in jury selection dates back to

slavery. Until 1860, no black person had ever sat on a jury in the Unit-

ed States. During the Reconstruction era, African Americans began

to serve on juries in the South for the first time. The all-white jury

promptly returned, however, when Democratic conservatives sought

to “redeem” the South by stripping blacks of their right to vote and

their right to serve on juries. In 1880, the Supreme Court intervened,

striking down a West Virginia statute that expressly reserved jury ser-

vice to white men. Citing the recently enacted Fourteenth Amendment,

the Court declared that the exclusion of blacks from jury service was

“practically a brand upon them, affixed by law, an assertion of their

inferiority, and a stimulant to that race prejudice which is an impedi-

ment to . . . equal justice.” 68 The Court asked, “How can it be main-

tained that compelling a colored man to submit to a trial for his life by

a jury drawn from a panel from which the State has expressly excluded

every man of his race, because of his color alone, however well quali-

fied in other respects, is not a denial to him of equal protection?” 69

For all its bluster, the Court offered no meaningful protection

against jury discrimination in the years that followed. As legal scholar

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Benno Schmidt has observed, from the end of Reconstruction through

the New Deal, “the systematic exclusion of black men from Southern

juries was about as plain as any legal discrimination could be short of

proclamation in state statutes or confession by state officials.” 70 The

Supreme Court repeatedly upheld convictions of black defendants by

all-white juries in situations where exclusion of black jurors was obvi-

ous.71 The only case in which the Court overturned a conviction on the

grounds of discrimination in jury selection was Neal v. Delaware, a case

decided in 1935. State law in Delaware once had explicitly restricted

jury service to white men, and “no colored citizen had ever been sum-

moned as a juror.”72 The Delaware Supreme Court had rejected Neal’s

equal protection claim on the grounds that “the great body of black

men residing in this State are utterly unqualified [for jury service] by

want of intelligence, experience, or moral integrity.”73 The Supreme

Court reversed. Clearly, what offended the U.S. Supreme Court was

not the exclusion of blacks from jury service per se, but rather doing so

openly and explicitly. That orientation continues to hold today.

Notwithstanding Batson’s formal prohibition on race discrimination

in jury selection, the Supreme Court and lower federal courts have

tolerated all but the most egregious examples of racial bias in jury

selection. Miller El v. Cockrell was such a case.74 That case involved

a jury-selection manual that sanctioned race-based selection. The

Court noted that it was unclear whether the official policy of race-

based exclusion was still in effect, but the prosecution did in fact

exclude ten of eleven black jurors, in part by employing an unusual

practice of “jury shuffling” that reduced the number of black jurors.75

The prosecution also engaged in disparate questioning of jurors based

on race—practices that seemed linked to the jury-selection manual.

This was a highly unusual case. In typical cases, there are no official

policies authorizing race discrimination in jury selection still lurking

around, arguably in effect. Normally, the discrimination is obvious

yet unstated, and the systematic exclusion of black jurors continues

largely unabated through use of the peremptory strike.

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Peremptory strikes have long been controversial. Both prosecutors

and defense attorneys are permitted to strike “peremptorily” jurors

they don’t like—that is, people they believe will not respond favor-

ably to the evidence or witnesses they intend to present at trial. In

theory, peremptory strikes may increase the fairness of the proceeding

by eliminating jurors who may be biased but whose biases cannot be

demonstrated convincingly to a judge. In practice, however, peremp-

tory challenges are notoriously discriminatory. Lawyers typically have

little information about potential jurors, so their decisions to strike

individual jurors tend to be based on nothing more than stereotypes,

prejudices, and hunches. Achieving an all-white jury, or nearly all-

white jury, is easy in most jurisdictions, because relatively few racial

minorities are included in the jury pool. Potential jurors are typically

called for service based on the list of registered voters or Department

of Motor Vehicle lists—sources that contain disproportionately fewer

people of color, because people of color are significantly less likely to

own cars or register to vote. Making matters worse, thirty-one states

and the federal government subscribe to the practice of lifetime felon

exclusion from juries. As a result, about 30 percent of black men are

automatically banned from jury service for life.76 Accordingly, no more

than a handful of strikes are necessary in many cases to eliminate

all or nearly all black jurors. The practice of systematically excluding

black jurors has not been halted by Batson; the only thing that has

changed is that prosecutors must come up with a race-neutral excuse

for the strikes—an exceedingly easy task.

In fact, one comprehensive study reviewed all published deci-

sions involving Batson challenges from 1986 to 1992 and concluded

that prosecutors almost never fail to successfully craft acceptable

race-neutral explanations to justify striking black jurors.77 Courts

accept explanations that jurors are too young, too old, too conserva-

tive, too liberal, too comfortable, or too uncomfortable. Clothing is

also a favorite reason; jurors have been stricken for wearing hats or

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sunglasses. Even explanations that might correlate with race, such

as lack of education, unemployment, poverty, being single, living in

the same neighborhood as the defendant, or prior involvement with

the criminal justice system—have all been accepted as perfectly good,

non- pretextual excuses for striking African Americans from juries.

As professor Sheri Lynn Johnson once remarked, “If prosecutors exist

who . . . cannot create a ‘racially neutral’ reason for discriminating on

the basis of race, bar exams are too easy.”78

Given how flagrantly prosecutors were violating Batson’s ban on race

discrimination in jury selection, it was reasonable to hope that, if pre-

sented with a particularly repugnant case, the Supreme Court might be

willing to draw the line at practices that make a mockery of the antidis-

crimination principle. Granted, the Court had been unwilling to accept

statistical proof of race discrimination in sentencing in McCleskey, and

it had brushed off concerns of racial bias in discretionary police stops

in Whren, and it had granted virtual immunity to prosecutors in their

charging decisions in Armstrong, but would it go so far as to allow

prosecutors to offer blatantly absurd, downright laughable excuses for

striking blacks from juries? It turns out the answer was yes.

In Purkett v. Elm, in 1995, the Supreme Court ruled that any race-

neutral reason, no matter how silly, ridiculous, or superstitious, is

enough to satisfy the prosecutor’s burden of showing that a pattern of

striking a particular racial group is not, in fact, based on race. In that

case, the prosecutor offered the following explanation to justify his

strikes of black jurors:

I struck [juror] number twenty-two because of his long

hair. He had long curly hair. He had the longest hair of

anybody on the panel by far. He appeared not to be a good

juror for that fact. . . . Also, he had a mustache and a goa-

tee type beard. And juror number twenty-four also had a

mustache and goatee type beard. . . . And I don’t like the

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way they looked, with the way the hair is cut, both of them.

And the mustaches and the beards look suspicious to me.79

The Court of Appeals for the Eighth Circuit ruled that the foregoing

explanation for the prosecutor’s strikes of black jurors was insufficient

and should have been rejected by the trial court because long hair and

facial hair are not plausibly related to a person’s ability to perform as

a juror. The appellate court explained: “Where the prosecution strikes

a prospective juror who is a member of the defendant’s racial group,

solely on the basis of factors which are facially irrelevant to the ques-

tion of whether that person is qualified to serve as a juror in the par-

ticular case, the prosecution must at least articulate some plausible

race neutral reason for believing that those factors will somehow affect

the person’s ability to perform his or her duties as a juror.”80

The U.S. Supreme Court reversed, holding that when a pattern of

race-based strikes has been identified by the defense, the prosecutor

need not provide “an explanation that is persuasive, or even plausi-

ble.”81 Once the reason is offered, a trial judge may choose to believe

(or disbelieve) any “silly or superstitious” reason offered by prosecu-

tors to explain a pattern of strikes that appear to be based on race.82

The Court sent a clear message that appellate courts are largely free

to accept the reasons offered by a prosecutor for excluding prospec-

tive black jurors—no matter how irrational or absurd the reasons

may seem.

The Occupation—Policing the Enemy

The Court’s blind eye to race discrimination in the criminal justice

system has been especially problematic in policing. Racial bias is most

acute at the point of entry into the system for two reasons: discre-

tion and authorization. Although prosecutors, as a group, have the

greatest power in the criminal justice system, police have the greatest

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discretion— discretion that is amplified in drug-law enforcement. And

unbeknownst to the general public, the Supreme Court has actually

authorized race discrimination in policing, rather than adopting legal

rules banning it.

Racially biased police discretion is key to understanding how the

overwhelming majority of people who get swept into the criminal jus-

tice system in the War on Drugs turn out to be black or brown, even

though the police adamantly deny that they engage in racial profil-

ing. In the drug war, police have discretion regarding whom to target

(which individuals), as well as where to target (which neighborhoods

or communities). As noted earlier, at least 10 percent of Americans vio-

late drug laws every year, and people of all races engage in illegal drug

activity at similar rates. With such an extraordinarily large population

to choose from, decisions must be made regarding who should be tar-

geted and where the drug war should be waged.

From the outset, the drug war could have been waged primarily in

overwhelmingly white suburbs or on college campuses. SWAT teams

could have rappelled from helicopters in gated suburban communities

and raided the homes of high school lacrosse players known for host-

ing coke and ecstasy parties after their games. The police could have

seized televisions, furniture, and cash from fraternity houses based

on an anonymous tip that a few joints or a stash of cocaine could be

found hidden in someone’s dresser drawer. Suburban homemakers

could have been placed under surveillance and subjected to under-

cover operations designed to catch them violating laws regulating the

use and sale of prescription “uppers.” All of this could have happened

as a matter of routine in white communities, but it did not.

Instead, when police go looking for drugs, they look in the ’hood.

Tactics that would be political suicide in an upscale white suburb are

not even newsworthy in poor black and brown communities. So long as

mass drug arrests are concentrated in impoverished urban areas, police

chiefs have little reason to fear a political backlash, no matter how

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aggressive and warlike the efforts may be. And so long as the number of

drug arrests increases or at least remains high, federal dollars continue

to flow in and fill the department’s coffers. As one former prosecutor

put it, “It’s a lot easier to go out to the ’hood, so to speak, and pick

somebody than to put your resources in an undercover [operation in a]

community where there are potentially politically powerful people.”83

The hypersegregation of the black poor in ghetto communities has

made the roundup easy. Confined to ghetto areas and lacking politi-

cal power, the black poor are convenient targets. Douglas Massey and

Nancy Denton’s book, American Apartheid, documents how racially

segregated ghettos were deliberately created by federal policy, not

impersonal market forces or private housing choices.84 The enduring

racial isolation of the ghetto poor has made them uniquely vulnerable

in the War on Drugs. What happens to them does not directly affect—

and is scarcely noticed by—the privileged beyond the ghetto’s invis-

ible walls. Thus it is here, in the poverty-stricken, racially segregated

ghettos, where the War on Poverty has been abandoned and factories

have disappeared, that the drug war has been waged with the greatest

ferocity. SWAT teams are deployed here; buy-and-bust operations are

concentrated here; drug raids of apartment buildings occur here; stop-

and-frisk operations occur on the streets here. Black and brown youth

are the primary targets. It is not uncommon for a young black teenager

living in a ghetto community to be stopped, interrogated, and frisked

numerous times in the course of a month, or even a single week, often by

paramilitary units. Studies of racial profiling typically report the total

number of people stopped and searched, disaggregated by race. These

studies have led some policing experts to conclude that racial profiling

is actually “worse” in white communities, because the racial disparities

in stop and search rates are much greater there. What these studies do

not reveal, however, is the frequency with which any given individual

is likely to be stopped in specific, racially defined neighborhoods.

The militarized nature of law enforcement in ghetto communities

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has inspired rap artists and black youth to refer to the police presence

in black communities as “The Occupation.” In these occupied terri-

tories, many black youth automatically “assume the position” when a

patrol car pulls up, knowing full well that they will be detained and

frisked no matter what. This dynamic often comes as a surprise to

those who have spent little time in ghettos. Craig Futterman, a law

professor at the University of Chicago, reports that his students fre-

quently express shock and dismay when they venture into those com-

munities for the first time and witness the distance between abstract

legal principles and actual practice. One student reported, following

her ride- along with Chicago police: “Each time we drove into a public

housing project and stopped the car, every young black man in the area

would almost reflexively place his hands up against the car and spread

his legs to be searched. And the officers would search them. The offi-

cers would then get back in the car and stop in another project, and this

would happen again. This repeated itself throughout the entire day. I

couldn’t believe it. This was nothing like we learned in law school. But

it just seemed so normal—for the police and the young men.”

Numerous scholars (and many law enforcement officials) attempt to

justify the concentration of drug law enforcement resources in ghetto

communities on the grounds that it is easier for the police to combat

illegal drug activity there. The theory is that black and Latino drug

users are more likely than white users to obtain illegal drugs in public

spaces that are visible to the police, and therefore it is more efficient

and convenient for the police to concentrate their efforts on open-air

drug markets in ghetto communities. Sociologists have been major

proponents of this line of reasoning, pointing out that differential

access to private space influences the likelihood that criminal behav-

ior will be detected. Because poor people lack access to private space

(often sharing small apartments with numerous family members or

relatives), their criminal activity is more likely to be conducted out-

doors. Concentrating law enforcement efforts in locations where drug

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activity will be more easily detected is viewed as a race-neutral orga-

nizational necessity. This argument is often buttressed by claims that

most citizen complaints about illegal drug activity come from ghetto

areas, and that the violence associated with the drug trade occurs in

inner cities. These facts, drug war defenders claim, make the decision

to wage the drug war almost exclusively in poor communities of color

an easy and logical choice.

This line of reasoning is weaker than it initially appears. Many law

enforcement officials acknowledge that the demand for illegal drugs

is so great—and the lack of alternative sources of income so few in

ghetto communities—that “if you take one dealer off the street, he’ll

be replaced within an hour.” Many also admit that a predictable con-

sequence of breaking up one drug ring is a slew of violence as others

fight for control of the previously stabilized market.85 These realities

suggest—if the past two decades of endless war somehow did not—

that the drug war is doomed to fail. They also call into question the

legitimacy of “convenience” as an excuse for the mass imprisonment

of black and brown men in ghetto communities.

Even putting aside such concerns, though, recent research indicates

that the basic assumptions upon which drug war defenses typically

rest are simply wrong. The conventional wisdom—that “get tough”

tactics are a regrettable necessity in poor communities of color and

that efficiency requires the drug war to be waged in the most vulner-

able neighborhoods—turns out to be, as many have long suspected,

nothing more than wartime propaganda, not sound policy.

Unconventional Wisdom

In 2002, a team of researchers at the University of Washington decided

to take the defenses of the drug war seriously by subjecting the argu-

ments to empirical testing in a major study of drug-law enforcement in

a racially mixed city—Seattle.86 The study found that, contrary to the

prevailing “common sense,” the high arrest rates of African Americans

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in drug-law enforcement could not be explained by rates of offending;

nor could they be explained by other standard excuses, such as the

ease and efficiency of policing open-air drug markets, citizen com-

plaints, crime rates, or drug- related violence. The study also debunked

the assumption that white drug dealers deal indoors, making their

criminal activity more difficult to detect.

The authors found that it was untrue stereotypes about crack mar-

kets, crack dealers, and crack babies—not facts—that were driving

discretionary decision making by the Seattle Police Department. The

facts were as follows: Seattle residents were far more likely to report

suspected narcotics activities in residences—not outdoors—but police

devoted their resources to open-air drug markets and to the one pre-

cinct that was least likely to be identified as the site of suspected drug

activity in citizen complaints. In fact, although hundreds of outdoor

drug transactions were recorded in predominantly white areas of Seat-

tle, police concentrated their drug enforcement efforts in one down-

town drug market where the frequency of drug transactions was much

lower. In racially mixed open-air drug markets, black dealers were

far more likely to be arrested than whites, even though white dealers

were present and visible. And the department focused overwhelming-

ly on crack—the one drug in Seattle more likely to be sold by Afri-

can Americans— despite the fact that local hospital records indicated

that overdose deaths involving heroin were more numerous than all

overdose deaths for crack and powder cocaine combined. Local police

acknowledged that no significant level of violence was associated with

crack in Seattle and that other drugs were causing more hospitaliza-

tions, but steadfastly maintained that their deployment decisions were

nondiscriminatory.

The study’s authors concluded, based on their review and analysis of

the empirical evidence, that the Seattle Police Department’s decisions

to focus so heavily on crack, to the near exclusion of other drugs, and

to concentrate its efforts on outdoor drug markets in downtown areas

rather than drug markets located indoors or in predominantly white

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communities, reflect “a racialized conception of the drug problem.”87

As the authors put it: “[The Seattle Police Department’s] focus on black

and Latino individuals and on the drug most strongly associated with

‘blackness’ suggest that law enforcement policies and practices are

predicated on the assumption that the drug problem is, in fact, a black

and Latino one, and that crack, the drug most strongly associated with

urban blacks, is ‘the worst.’”88 This racialized cultural script about

who and what constitutes the drug problem renders illegal drug activ-

ity by whites invisible. “White people,” the study’s authors observed,

“are simply not perceived as drug offenders by Seattle police officers.”89

Hollow Hope

One might imagine that the facts described above would provide

grounds for a lawsuit challenging the Seattle Police Department’s

drug war tactics as a violation of the equal protection clause of the

Fourteenth Amendment and demanding reform. After all, obtaining

reform through the city council or state legislature may seem unlikely,

for black “criminals” are perhaps the most despised minority in the

U.S. population. Few politicians will leap at the opportunity to sup-

port black people labeled criminals. Accordingly, a lawsuit may seem

like the best option. The purpose of our Constitution—especially the

Fourteenth Amendment’s equal-protection guarantee—is to protect

minority rights even when, or especially when, they are unpopular. So

shouldn’t African American defendants be able to file a successful law-

suit demanding an end to these discriminatory practices or challenge

their drug arrests on the grounds that these law enforcement practices

are unlawfully tainted by race? The answer is yes, they should, but no,

they probably can’t.

As legal scholar David Cole has observed, “The Court has imposed

nearly insurmountable barriers to persons challenging race discrimi-

nation at all stages of the criminal justice system.”90 The barriers are

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so high that few lawsuits are even filed, notwithstanding shocking and

indefensible racial disparities. Procedural hurdles, such as the “stand-

ing requirement,” have made it virtually impossible to seek reform of

law enforcement agencies through the judicial process, even when the

policies or practices at issue are illegal or plainly discriminatory.

Adolph Lyons’s attempt to ban the use of lethal chokeholds by the

Los Angeles Police Department (LAPD) is a good example. Lyons, a

twenty-four-year-old black man, was driving his car in Los Angeles

one morning when he was pulled over by four police officers for a

burned-out taillight. With guns drawn, police ordered Lyons out of

his car. He obeyed. The officers told him to face the car, spread his legs,

and put his hands on his head. Again, Lyons did as he was told. After

the officers completed a pat-down, Lyons dropped his hands, prompt-

ing an officer to slam Lyons’s hands back on his head. When Lyons

complained that the car keys he was holding were causing him pain,

the officer forced Lyons into a chokehold. He lost consciousness and

collapsed. When he awoke, “he was spitting up blood and dirt, had

urinated and defecated, and had suffered permanent damage to his

larynx.”91 The officers issued a traffic ticket for the burned-out taillight

and released him.

Lyons sued the City of Los Angeles for violation of his constitutional

rights and sought, as a remedy, a ban against future use of the choke-

holds. By the time his case reached the Supreme Court, sixteen people

had been killed by police use of the chokehold, twelve of them black

men. The Supreme Court dismissed the case, however, ruling that

Lyons lacked “standing” to seek an injunction against the deadly prac-

tice. In order to have standing, the Court reasoned, Lyons would have

to show that he was highly likely to be subject to a chokehold again.

Lyons argued that, as a black man, he had good reason to fear he

would be stopped by the police for a minor traffic violation and sub-

jected to a chokehold again. He had done nothing to provoke the choke-

hold; to the contrary, he had obeyed instructions and cooperated fully.

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Why wouldn’t he believe he was at risk of being stopped and choked

again? The Court, however, ruled that in order to have standing

Lyons would have had not only to allege that he would

have another encounter with the police but also to make

the incredible assertion either (1) that all police officers in

Los Angeles always choke any citizen with whom they have

an encounter, whether for the purpose of arrest, issuing a

citation or for questioning, or (2) that the City ordered or

authorized the police to act in such a manner.92

Lyons did not allege race discrimination, but if he had, that claim

would almost certainly have been a loser too. The Court’s ruling in

Lyons makes it extremely difficult to challenge systemic race discrimi-

nation in law enforcement and obtain meaningful policy reform. For

example, African Americans in Seattle who hope to end the Seattle

police department’s discriminatory tactics through litigation would be

required to prove that they plan to violate drug laws and that they

will almost certainly face race discrimination by Seattle police officers

engaged in drug-law enforcement, in order to have standing to seek

reform—i.e., just to get in the courthouse door.

It is worthy of note that the Lyons standard does not apply to suits

for damages. But any suggestion that litigants need not worry about

policy reform because they can always sue for damages would be

disingenuous—particularly as applied to race discrimination cases.

Why? Neither the state nor the state police can be sued for damages.

In a series of cases, the Supreme Court has ruled that the state and its

offices are immune from federal suits for damages under the Eleventh

Amendment to the Constitution (unless they consent), and the state

can’t be sued for damages for constitutional violations in state court

either.93 City police departments, like the LAPD, are also typically

off-limits. The Court has ruled that a city police department cannot

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be sued for damages unless a specific city policy or custom can be

identified authorizing the illegal practice.94 Most cities, of course, do

not have policies specifically authorizing illegal conduct (particularly

race discrimination), and “custom” is notoriously difficult to prove.

Accordingly, suing a city police department for damages is generally

not an option. Yet even if all of those hurdles can somehow be over-

come, there is still the matter of proving a claim of race discrimination.

As we have seen, to establish an equal-protection violation, one must

prove intentional discrimination—conscious racial bias. Law enforce-

ment officials rarely admit to having acted for racial reasons, leaving

most victims of discriminatory law enforcement without anyone to sue

and without a claim that can be proven in a court of law. But even if a

plaintiff managed to overcome all of the procedural hurdles and prove

that a police officer deliberately exercised his or her discretion on the

basis of race, that still might not be enough.

Race as a Factor

The dirty little secret of policing is that the Supreme Court has actu-

ally granted the police license to discriminate. This fact is not adver-

tised by police departments, because law enforcement officials know

that the public would not respond well to this fact in the era of color-

blindness. It is the sort of thing that is better left unsaid. Civil rights

lawyers—including those litigating racial profiling cases—have been

complicit in this silence, fearing that any acknowledgment that race-

based policing is authorized by law would legitimate in the public

mind the very practice they are hoping to eradicate.

The truth, however, is this: at other stages of the criminal justice

process, the Court has indicated that overt racial bias necessarily trig-

gers strict scrutiny—a concession that has not been costly, as very

few law enforcement officials today are foolish enough to admit bias

openly. But the Supreme Court has indicated that in policing, race can

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be used as a factor in discretionary decision making. In United States

v. Brignoni-Ponce, the Court concluded it was permissible under the

equal protection clause of the Fourteenth Amendment for the police to

use race as a factor in making decisions about which motorists to stop

and search. In that case, the Court concluded that the police could

take a person’s Mexican appearance into account when developing

reasonable suspicion that a vehicle may contain undocumented immi-

grants. The Court said that “the likelihood that any person of Mexican

ancestry is an alien is high enough to make Mexican appearance a

relevant factor.”95 Some commentators have argued that Brignoni-Ponce

may be limited to the immigration context; the Court might not apply

the same principle to drug-law enforcement. It is not obvious what the

rational basis would be for limiting overt race discrimination by police

to immigration. The likelihood that a person of Mexican ancestry is an

“alien” could not be significantly higher than the likelihood that any

random black person is a “drug criminal.”

The Court’s quiet blessing of race-based traffic stops has led to

something of an Orwellian public discourse regarding racial profiling.

Police departments and highway patrol agencies frequently declare,

“We do not engage in racial profiling,” even though their officers rou-

tinely use race as a factor when making decisions regarding whom to

stop and search. The justification for the implicit doublespeak—“we

do not racial-profile; we just stop people based on race”—can be

explained in part by the Supreme Court’s jurisprudence. Because the

Supreme Court has authorized the police to use race as a factor when

making decisions regarding whom to stop and search, police depart-

ments believe that racial profiling exists only when race is the sole

factor. Thus, if race is one factor but not the only factor, then it doesn’t

really count as a factor at all.

The absurdity of this logic is evidenced by the fact that police almost

never claim to stop anyone solely because of race. A young black male

wearing baggy pants, standing in front of his high school surrounded

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by a group of similarly dressed black friends, may be stopped and

searched because police believe he “looks like” a drug dealer. The

police can easily argue, if challenged, that non- racial factors – such

as gender, age, attire and location – played a role in their assessment.

The problem, of course, is that whether or not race is the sole reason

for a stop or search, it is frequently a determinative reason. A young

white male wearing baggy pants, standing in front of his high school

and surrounded by his friends, might well be ignored by police offi-

cers. It might never occur to them that a group of young white kids

might be dealing dope in front of their high school. Similarly situ-

ated people inevitably are treated differently when police are granted

permission to rely on racial stereotypes when making discretionary

decisions.

Equally important, though, the sole- factor test ignores the ways in

which seemingly race- neutral factors—such as location— operate in a

highly discriminatory fashion. Some law enforcement officials claim

that they would stop and search white kids wearing baggy jeans in the

ghetto (that would be suspicious)—it just so happens they’re rarely

there. Subjecting people to stops and searches because they live in

“high crime” ghettos cannot be said to be truly race- neutral, given

that the ghetto itself was constructed to contain and control groups of

people defined by race.96 Even seemingly race-neutral factors such as

“prior criminal history” are not truly race-neutral. A black kid arrest-

ed twice for possession of marijuana may be no more of a “repeat

offender” than a white frat boy who regularly smokes pot in his dorm

room. But because of his race and his confinement to a racially segre-

gated ghetto, the black kid has a criminal record, while the white frat

boy, because of his race and relative privilege, does not. Thus, when

prosecutors throw the book at black youth who have multiple arrests

or convictions, or when police stalk people with criminal records and

subject them to regular frisks and searches on the grounds that it

makes sense to “watch criminals closely,” they are often exacerbating

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racial disparities created by the discretionary decision to wage the

War on Drugs almost exclusively in poor communities of color.

Defending against claims of racial bias in policing is easy. Because

police officers never offer race as the only reason for a stop or search,

any police officer, even the most racist, will be able to cite multiple

nonracial reasons for initiating an encounter, including any number

of the so-called “indicators” of drug trafficking discussed in chapter 2,

such as appearing too nervous or too calm. Police officers (like pros-

ecutors) are highly adept at offering race-neutral reasons for actions

that consistently disadvantage African Americans. Whereas prosecu-

tors claim they strike black jurors not because of their race but because

of their hairstyle, police officers have their own stock excuses—e.g.,

“Your honor, we didn’t stop him because he’s black; we stopped him

because he failed to use his turn signal at the right time,” or “It wasn’t

just because he was black; it was also because he seemed nervous when

he saw the police car.” Judges are just as reluctant to second-guess an

officer’s motives as they are to second-guess prosecutors’. So long as

officers refrain from uttering racial epithets and so long as they show

the good sense not to say “the only reason I stopped him was ’cause

he’s black,” courts generally turn a blind eye to patterns of discrimina-

tion by the police.

Studies of racial profiling have shown that police do, in fact, exercise

their discretion regarding whom to stop and search in the drug war in

a highly discriminatory manner.97 Not only do police discriminate in

their determinations regarding where to wage the war, but they also

discriminate in their judgments regarding whom to target outside of

the ghetto’s invisible walls.

The most famous of these studies were conducted in New Jersey

and Maryland in the 1990s. Allegations of racial profiling in federally

funded drug interdiction operations resulted in numerous investiga-

tions and comprehensive data demonstrating a dramatic pattern of

racial bias in highway patrol stops and searches. These drug interdic-

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tion programs were the brainchild of the DEA, part of the federally

funded program known as Operation Pipeline.

In New Jersey, the data showed that only 15 percent of all drivers

on the New Jersey Turnpike were racial minorities, yet 42 percent of

all stops and 73 percent of all arrests were of black motorists— despite

the fact that blacks and whites violated traffic laws at almost exactly

the same rate. While radar stops were relatively consistent with the

percentage of minority violators, discretionary stops made by offi-

cers involved in drug interdiction resulted in double the number of

stops of minorities.98 A subsequent study conducted by the attorney

general of New Jersey found that searches on the turnpike were even

more discriminatory than the initial stops—77 percent of all consent

searches were of minorities. The Maryland studies produced similar

results: African Americans comprised only 17 percent of drivers along

a stretch of I-95 outside of Baltimore, yet they were 70 percent of those

who were stopped and searched. Only 21 percent of all drivers along

that stretch of highway were racial minorities (Latinos, Asians, and

African Americans), yet those groups comprised nearly 80 percent of

those pulled over and searched.99

What most surprised many analysts was that, in both studies,

whites were actually more likely than people of color to be carrying

illegal drugs or contraband in their vehicles. In fact, in New Jersey,

whites were almost twice as likely to be found with illegal drugs or

contraband as African Americans, and five times as likely to be found

with contraband as Latinos.100 Although whites were more likely to

be guilty of carrying drugs, they were far less likely to be viewed as

suspicious, resulting in relatively few stops, searches, and arrests of

whites. The former New Jersey attorney general dubbed this phenome-

non the “circular illogic of racial profiling.” Law enforcement officials,

he explained, often point to the racial composition of our prisons and

jails as a justification for targeting racial minorities, but the empirical

evidence actually suggested the opposite conclusion was warranted.

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The disproportionate imprisonment of people of color was, in part, a

product of racial profiling—not a justification for it.

In the years following the release of the New Jersey and Maryland

data, dozens of other studies of racial profiling have been conducted.

A brief sampling:

• In Volusia County, Florida, a reporter obtained 148 hours of

video footage documenting more than 1,000 highway stops

conducted by state troopers. Only 5 percent of the drivers

on the road were African American or Latino, but more than

80 percent of the people stopped and searched were minori-

ties.101

• In Illinois, the state police initiated a drug interdiction pro-

gram known as Operation Valkyrie that targeted Latino mo-

torists. While Latinos comprised less than 8 percent of the

Illinois population and took fewer than 3 percent of the per-

sonal vehicle trips in Illinois, they comprised approximately

30 percent of the motorists stopped by drug interdiction offi-

cers for discretionary offenses, such as failure to signal a lane

change.102 Latinos, however, were significantly less likely

than whites to have illegal contraband in their vehicles.

• A racial profiling study in Oakland, California, in 2001

showed that African Americans were approximately twice as

likely as whites to be stopped, and three times as likely to be

searched.103

Pedestrian stops, too, have been the subject of study and contro-

versy. The New York Police Department released statistics in Febru-

ary 2007 showing that during the prior year its officers stopped an

astounding 508,540 people—an average of 1,393 per day—who were

walking down the street, perhaps on their way to the subway, grocery

store, or bus stop. Often the stops included searches for illegal drugs or

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guns— searches that frequently required people to lie face down on the

pavement or stand spread- eagled against a wall while police officers

aggressively groped all over their bodies while bystanders watched or

walked by. The vast majority of those stopped and searched were racial

minorities, and more than half were African American.104

The NYPD began collecting data on pedestrian stops following the

shooting of Amadou Diallo, an African immigrant who died in a hail

of police bullets on the front steps of his own home in February 1999.

Diallo was followed to his apartment building by four white police

officers—members of the elite Street Crime Unit—who viewed him as

suspicious and wanted to interrogate him. They ordered him to stop, but,

according to the officers, Diallo did not respond immediately. He walked

a bit farther to his apartment building, opened the door, and retrieved his

wallet—probably to produce identification. The officers said they thought

the wallet was a gun, and fired forty-one times. Amadou Diallo died at

the age of twenty-two. He was unarmed and had no criminal record.

Diallo’s murder sparked huge protests, resulting in a series of stud-

ies commissioned by the attorney general of New York. The first study

found that African Americans were stopped six times more frequently

than whites, and that stops of African Americans were less likely to

result in arrests than stops of whites—presumably because blacks were

less likely to be found with drugs or other contraband.105 Although the

NYPD attempted to justify the stops on the grounds that they were

designed to get guns off the street, stops by the Street Crime Unit—the

group of officers who supposedly are specially trained to identify gun-

toting thugs—yielded a weapon in only 2.5 percent of all stops.106

Rather than reducing reliance on stop-and-frisk tactics following the

Diallo shooting and the release of this disturbing data, the NYPD dra-

matically increased its number of pedestrian stops and continued to

stop and frisk African Americans at grossly disproportionate rates. The

NYPD stopped five times more people in 2005 than in 2002—the over-

whelming majority of whom were African American or Latino.107 By

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2008, the NYPD was stopping 545,000 in a single year, and 80 percent

of the people stopped were African Americans and Latinos. Whites

comprised a mere 8 percent of people frisked by the NYPD, while Afri-

can Americans accounted for 85 percent of all frisks.108 A report by The

New York Times found that the highest concentration of stops in the

city was a roughly eight-block area of Brownsville, Brooklyn, that was

predominately black. Residents there were stopped at a rate thirteen

times the city average.109

Although the NYPD frequently attempts to justify stop-and-frisk

operations in poor communities of color on the grounds that such tac-

tics are necessary to get guns off the streets, less than 1 percent of stops

(0.15 percent) resulted in guns being found, and guns and other con-

traband were seized less often in stops of African Americans and Lati-

nos than of whites.110 As Darius Charney, a lawyer for the Center for

Constitutional Rights, observed, these studies “confirm what we have

been saying for the last 10 or 11 years, which is that with stop-and-

frisk patterns—it is really race, not crime, that is driving this.”111

Ultimately, these stop-and-frisk operations amount to much more

than humiliating, demeaning rituals for young men of color, who must

raise their arms and spread their legs, always careful not to make a

sudden move or gesture that could provide an excuse for brutal—even

lethal—force. Like the days when black men were expected to step

off the sidewalk and cast their eyes downward when a white woman

passed, young black men know the drill when they see the police cross-

ing the street toward them; it is a ritual of dominance and submission

played out hundreds of thousands of times each year. But it is more

than that. These routine encounters often serve as the gateway into the

criminal justice system. The NYPD made 50,300 marijuana arrests in

2010 alone, mostly of young men of color. As one report noted, these

marijuana arrests offer “training opportunities” for rookie police who

can practice on ghetto kids while earning overtime.112 These arrests

serve another purpose as well: they “are the most effective way for the

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NYPD to collect fingerprints, photographs and other information on

young people not yet entered into the criminal databases.”113 A simple

arrest for marijuana possession can show up on criminal databases as

“a drug arrest” without specifying the substance or the charge, and

without clarifying even whether the person was convicted. These data-

bases are then used by police and prosecutors, as well as by employers

and housing officials—an electronic record that will haunt many for

life. More than 353,000 people were arrested and jailed by the NYPD

between 1997 and 2006 for simple possession of small amounts of mar-

ijuana, with blacks five times more likely to be arrested than whites.114

In Los Angeles, mass stops of young African American men and boys

resulted in the creation of a database containing the names, addresses,

and other biographical information of the overwhelming majority of

young black men in the entire city. The LAPD justified its database as

a tool for tracking gang or “gang-related” activity. However, the crite-

rion for inclusion in the database is notoriously vague and discrimina-

tory. Having a relative or friend in a gang and wearing baggy jeans is

enough to put youth on what the ACLU calls a Black List. In Denver,

displaying any two of a list of attributes—including slang, “clothing of

a particular color,” pagers, hairstyles, or jewelry—earns youth a spot

in the Denver Police’s gang database. In 1992, citizen activism led to an

investigation, which revealed that eight out of every ten people of color

in the entire city were on the list of criminal suspects.115

The End of an Era

The litigation that swept the nation in the 1990s challenging racial

profiling practices has nearly vanished. The news stories about people

being stopped and searched on their way to church or work or school

have faded from the evening news. This is not because the problem

has been solved or because the experience of being stopped, interro-

gated, and searched on the basis of race has become less humiliating,

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alienating, or demoralizing as time has gone by. The lawsuits have

disappeared because, in a little noticed case called Alexander v. San-

doval, decided in 2001, the Supreme Court eliminated the last remain-

ing avenue available for challenging racial bias in the criminal justice

system.116

Sandoval was not, on its face, even about criminal justice. It was a

case challenging the Alabama Department of Public Safety’s decision

to administer state driver’s license examinations only in English. The

plaintiffs argued that the department’s policy violated Title VI of the

Civil Rights Act of 1964 and its implementing regulations, because

the policy had the effect of subjecting non-English speakers to dis-

crimination based on their national origin. The Supreme Court did not

reach the merits of the case, ruling instead that the plaintiffs lacked

the legal right even to file the lawsuit. It concluded that Title VI does

not provide a “private right of action” to ordinary citizens and civil

rights groups; meaning that victims of discrimination can no longer

sue under the law.

The Sandoval decision virtually wiped out racial profiling litiga-

tion nationwide. Nearly all of the cases alleging racial profiling in

drug-law enforcement were brought pursuant to Title VI of the Civil

Rights Act of 1964 and its implementing regulations. Title VI prohib-

its federally funded programs or activities from discriminating on the

basis of race, and the regulations employ a “disparate impact test” for

discrimination—meaning that plaintiffs could prevail in claims of

race discrimination without proving discriminatory intent. Under the

regulations, a federally funded law enforcement program or activity is

unlawful if it has a racially discriminatory impact and if that impact

cannot be justified by law enforcement necessity. Because nearly all

law enforcement agencies receive federal funding in the drug war,

and because drug war tactics—such as pretext stops and consent

searches—have a grossly discriminatory impact and are largely inef-

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fective, plaintiffs were able to argue persuasively that the tactics could

not be justified by law enforcement necessity.

In 1999, for example, the ACLU of Northern California filed a class

action lawsuit against the California Highway Patrol (CHP), alleging

that its highway drug interdiction program violated Title VI of the Civil

Rights Act because it relied heavily on discretionary pretext stops and

consent searches that are employed overwhelmingly against African

American and Latino motorists. During the course of the litigation,

the CHP produced data that showed African Americans were twice as

likely, and Latinos three times as likely, to be stopped and searched

by its officers as were whites. The data further showed that consent

searches were ineffective; only a tiny percentage of the discriminatory

searches resulted in the discovery of drugs or other contraband, yet

thousands of black and brown motorists were subjected to baseless

interrogations, searches, and seizures as a result of having committed

a minor traffic violation. The CHP entered into a consent decree that

provided for a three-year moratorium on consent searches and pre-

text stops statewide and the collection of comprehensive data on the

race and ethnicity of motorists stopped and searched by the police, so

that it would be possible to determine whether discriminatory prac-

tices were continuing. Similar results were obtained in New Jersey, as

a result of landmark litigation filed against the New Jersey State Police.

After Sandoval, these cases can no longer be brought under Title VI

by private litigants. Only the federal government can sue to enforce

Title VI’s antidiscrimination provisions— something it has neither the

inclination nor the capacity to do in most racial profiling cases due to

its limited resources and institutional reluctance to antagonize local

law enforcement. Since the War on Drugs, private litigants represented

by organizations such as the ACLU have been at the forefront of racial

profiling litigation. Those days, however, have come to an end. The

racial profiling cases that swept the nation in the 1990s may well be

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the last wave of litigation challenging racial bias in the criminal justice

system that we see for a very long time.

The Supreme Court has now closed the courthouse doors to claims

of racial bias at every stage of the criminal justice process, from stops

and searches to plea bargaining and sentencing. The system of mass

incarceration is now, for all practical purposes, thoroughly immunized

from claims of racial bias. Staggering racial disparities in the drug war

continue but rarely make the news. One recent development that did

make news was President Obama’s decision to sign legislation reduc-

ing the hundred-to-one disparity in sentencing for crack versus pow-

der cocaine to eighteen to one, a small step in the right direction.117

Under the new law, it takes 28 grams of crack cocaine to net a five-year

mandatory minimum sentence, while it still takes selling 500 grams

of powdered cocaine to net the same sentence. There should be no

disparity—the ratio should be one-to-one. But that disparity is just the

tip of the iceberg. As noted in chapter 2, this system depends primar-

ily on the prison label, not prison time. What matters most is who gets

swept into this system of control and then ushered into an undercaste.

The legal rules adopted by the Supreme Court guarantee that those

who find themselves locked up and permanently locked out due to the

drug war are overwhelmingly black and brown.

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