Module 4

Reading.pdf

2 T he L o c k do w n

We may think we know how the criminal justice system works. Television is overloaded with fictional dramas about police, crime, and prosecutors—shows such as Law & Order. These fictional

dramas, like the evening news, tend to focus on individual stories of

crime, victimization, and punishment, and the stories are typically told

from the point of view of law enforcement. A charismatic police officer,

investigator, or prosecutor struggles with his own demons while hero-

ically trying to solve a horrible crime. He ultimately achieves a person-

al and moral victory by finding the bad guy and throwing him in jail.

That is the made-for-TV version of the criminal justice system. It per-

petuates the myth that the primary function of the system is to keep

our streets safe and our homes secure by rooting out dangerous crimi-

nals and punishing them. These television shows, especially those that

romanticize drug-law enforcement, are the modern-day equivalent of

the old movies portraying happy slaves, the fictional gloss placed on a

brutal system of racialized oppression and control.

Those who have been swept within the criminal justice system

know that the way the system actually works bears little resemblance

to what happens on television or in movies. Full-blown trials of guilt

or innocence rarely occur; many people never even meet with an attor-

ney; witnesses are routinely paid and coerced by the government;

police regularly stop and search people for no reason whatsoever;

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 2021-11-19 16:16:37.

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penalties for many crimes are so severe that innocent people plead

guilty, accepting plea bargains to avoid harsh mandatory sentences;

and children, even as young as fourteen, are sent to adult prisons.

Rules of law and procedure, such as “guilt beyond a reasonable doubt”

or “probable cause” or “reasonable suspicion,” can easily be found in

court cases and law-school textbooks but are much harder to find in

real life.

In this chapter, we shall see how the system of mass incarceration

actually works. Our focus is the War on Drugs. The reason is simple:

nothing has contributed more to the systematic mass incarceration

of people of color in the United States than this ongoing war. Drug

offenses alone account for two-thirds of the rise in the federal prison

population and more than half the rise in the state prison population

between 1985 and 2000.1 Approximately a half-million people are

in prison or jail for a drug offense today, compared to an estimated

41,100 in 1980—an increase of 1,100 percent.2 Drug arrests have tri-

pled since 1980. As a result, more than 31 million people have been

arrested for drug offenses since the drug war began.3 To put the mat-

ter in perspective, consider this: there are more people in prisons and

jails today just for drug offenses than were incarcerated for all reasons

in 1980.4 The population under correctional control—on probation or

parole—has tripled as well, an increase driven almost entirely by drug

convictions and other nonviolent crimes.

Before we begin our tour of the drug war, it is worthwhile to get

a couple of myths out of the way. The first is that the war is aimed

at ridding the nation of drug “kingpins” or big-time dealers. Nothing

could be further from the truth. The vast majority of those arrested are

charged with relatively minor crimes. In 2005, for example, four out of

five drug arrests were for possession, and only one out of five was for

sales. Moreover, most people in state prison for drug offenses have no

history of violence or significant selling activity.5

The second myth is that the drug war is principally concerned

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with dangerous drugs. Quite to the contrary, arrests for marijuana

possession—a drug less harmful than tobacco or alcohol— accounted

for nearly 80 percent of the growth in drug arrests in the 1990s.6

Despite the fact that most drug arrests are for nonviolent minor

offenses, the War on Drugs has ushered in an era of unprecedented

punitiveness.

The percentage of drug arrests that result in prison sentences (rath-

er than dismissal, community service, or probation) has quadrupled,

contributing to a prison-building boom the likes of which the world

has never seen. In two short decades, between 1980 and 2000, the

number of people incarcerated in our nation’s prisons and jails soared

from roughly 300,000 to more than 2 million. By the end of 2007, more

than 7 million Americans—or one in every 31 adults—were behind

bars, on probation, or on parole.7

We begin our exploration of the drug war at the point of entry—arrest

by the police—and then consider how the system of mass incarceration

is structured to reward mass drug arrests and facilitate the conviction

and imprisonment of an unprecedented number of Americans, whether

guilty or innocent. In subsequent chapters, we will consider how the

system specifically targets people of color and then relegates them to a

second-class status analogous to Jim Crow. At this point, we simply take

stock of the means by which the War on Drugs facilitates the roundup

and lockdown of an extraordinary percentage of the U.S. population.

Rules of the Game

Few legal rules meaningfully constrain the police in the War on Drugs.

This may sound like an overstatement, but upon examination it proves

accurate. The absence of significant constraints on the exercise of

police discretion is a key feature of the drug war’s design. It has made

the roundup of millions of Americans for nonviolent drug offenses

relatively easy.

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With only a few exceptions, the Supreme Court has seized every

opportunity to facilitate the drug war, primarily by eviscerating

Fourth Amendment protections against unreasonable searches and

seizures by the police. The rollback has been so pronounced that some

commentators charge that a virtual “drug exception” now exists to

the Bill of Rights. Shortly before his death, Justice Thurgood Marshall

felt compelled to remind his colleagues that there is, in fact, “no drug

exception” written into the text of the Constitution.8

Most Americans do not know what the Fourth Amendment of the

U.S. Constitution actually says or what it requires of the police. It

states, in its entirety:

The right of the people to be secure in their persons, hous-

es, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and

the person or things to be seized.

Courts and scholars agree that the Fourth Amendment governs

all searches and seizures by the police and that the amendment was

adopted in response to the English practice of conducting arbitrary

searches under general warrants to uncover seditious libels. The rou-

tine police harassment, arbitrary searches, and widespread police

intimidation of those subject to English rule helped to inspire the

American Revolution. Not surprisingly, then, preventing arbitrary

searches and seizures by the police was deemed by the Founding

Fathers an essential element of the U.S. Constitution. Until the War

on Drugs, courts had been fairly stringent about enforcing the Fourth

Amendment’s requirements.

Within a few years after the drug war was declared, however, many

legal scholars noted a sharp turn in the Supreme Court’s Fourth

Amendment jurisprudence. By the close of the Supreme Court’s

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1990–91 term, it had become clear that a major shift in the relation-

ship between the citizens of this country and the police was under

way. Justice Stevens noted the trend in a powerful dissent issued in

California v. Acevedo, a case upholding the warrantless search of a bag

locked in a motorist’s trunk:

In the years [from 1982 to 1991] , the Court has heard argu-

ment in 30 Fourth Amendment cases involving narcot-

ics. In all but one, the government was the petitioner. All

save two involved a search or seizure without a warrant

or with a defective warrant. And, in all except three, the

Court upheld the constitutionality of the search or seizure.

In the meantime, the flow of narcotics cases through the

courts has steadily and dramatically increased. No impar-

tial observer could criticize this Court for hindering the

progress of the war on drugs. On the contrary, decisions

like the one the Court makes today will support the con-

clusion that this Court has become a loyal foot soldier in

the Executive’s fight against crime.9

Police searches of vehicles are but one example. Virtually all consti-

tutionally protected civil liberties have been undermined by the drug

war. The Court has been busy in recent years approving mandatory

drug testing of employees and students, upholding random searches

and sweeps of public schools and students, permitting police to obtain

search warrants based on an anonymous informant’s tip, expanding

the government’s wiretapping authority, legitimating the use of paid,

unidentified informants by police and prosecutors, approving the use

of helicopter surveillance of homes without a warrant, and allowing

the forfeiture of cash, homes, and other property based on unproven

allegations of illegal drug activity.

For our purposes here, we limit our focus to the legal rules crafted

by the Supreme Court that grant law enforcement a pecuniary interest

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in the drug war and make it relatively easy for the police to seize peo-

ple virtually anywhere—on public streets and sidewalks, on buses,

airplanes, and trains, or in any other public place—and usher them

behind bars. These new legal rules have ensured that anyone, virtually

anywhere, for any reason, can become a target of drug-law enforce-

ment activity.

Unreasonable Suspicion

Once upon a time, it was generally understood that the police could not

stop and search someone without a warrant unless there was probable

cause to believe that the individual was engaged in criminal activity.

That was a basic Fourth Amendment principle. In Terry v. Ohio, decid-

ed in 1968, the Supreme Court modified that understanding, but only

modestly, by ruling that if and when a police officer observes unusual

conduct by someone the officer reasonably believes to be dangerous

and engaged in criminal activity, the officer “is entitled for the protec-

tion of himself and others in the area” to conduct a limited search “to

discover weapons that might be used against the officer.”10 Known as

the stop-and-frisk rule, the Terry decision stands for the proposition

that, so long as a police officer has “reasonable articulable suspicion”

that someone is engaged in criminal activity and dangerous, it is con-

stitutionally permissible to stop, question, and frisk him or her—even

in the absence of probable cause.

Justice Douglas dissented in Terry on the grounds that “grant[ing]

police greater power than a magistrate [judge] is to take a long step

down the totalitarian path.”11 He objected to the notion that police

should be free to conduct warrantless searches whenever they sus-

pect someone of criminal activity, believing that dispensing with the

Fourth Amendment’s warrant requirement risked opening the door

to the same abuses that gave rise to the American Revolution. His

voice was a lonely one. Most commentators at the time agreed that

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affording police the power and discretion to protect themselves dur-

ing an encounter with someone they believed to be dangerous is not

“unreasonable” under the Fourth Amendment.

History suggests Justice Douglas had the better of the argument. In

the years since Terry, stops, interrogations, and searches of ordinary

people driving down the street, walking home from the bus stop, or

riding the train have become commonplace—at least for people of col-

or. As Douglas suspected, the Court in Terry had begun its slide down

a very slippery slope. Today it is no longer necessary for the police to

have any reason to believe that people are engaged in criminal activ-

ity or actually dangerous to stop and search them. As long as you give

“consent,” the police can stop, interrogate, and search you for any rea-

son or no reason at all.

Just Say No

The first major sign that the Supreme Court would not allow the

Fourth Amendment to interfere with the prosecution of the War on

Drugs came in Florida v. Bostick. In that case, Terrance Bostick, a

twenty-eight-year-old African American, had been sleeping in the back

seat of a Greyhound bus on his way from Miami to Atlanta. Two police

officers, wearing bright green “raid” jackets and displaying their badg-

es and a gun, woke him with a start. The bus was stopped for a brief

layover in Fort Lauderdale, and the officers were “working the bus,”

looking for persons who might be carrying drugs. Bostick provided

them with his identification and ticket, as requested. The officers then

asked to search his bag. Bostick complied, even though he knew his bag

contained a pound of cocaine. The officers had no basis for suspecting

Bostick of any criminal activity, but they got lucky. They arrested Bos-

tick, and he was charged and convicted of trafficking cocaine.

Bostick’s search and seizure reflected what had become an increas-

ingly common tactic in the War on Drugs: suspicionless police sweeps

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of buses in interstate or intrastate travel. The resulting “interviews” of

passengers in these dragnet operations usually culminate in a request

for “consent” to search the passenger’s luggage.12 Never do the officers

inform passengers that they are free to remain silent or to refuse to

answer questions. By proceeding systematically in this manner, the

police are able to engage in an extremely high volume of searches. One

officer was able to search over three thousand bags in a nine-month

period employing these techniques.13 By and large, however, the hit

rates are low. For example, in one case, a sweep of one hundred buses

resulted in only seven arrests.14

On appeal, the Florida Supreme Court ruled in Bostick’s case that

the police officer’s conduct violated the Fourth Amendment’s prohi-

bition of unreasonable searches and seizures. The Fourth Amend-

ment, the court reasoned, forbids the police from seizing people and

searching them without some individualized suspicion that they have

committed or are committing a crime. The court thus overturned

Bostick’s conviction, ruling that the cocaine, having been obtained

illegally, was inadmissible. It also broadly condemned “bus sweeps”

in the drug war, comparing them to methods employed by totalitar-

ian regimes:

The evidence in this case has evoked images of other days,

under other flags, when no man traveled his nation’s roads

or railways without fear of unwarranted interruption, by

individuals who had temporary power in Government. . . .

This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it

white supremacist South Africa. Yet in Broward County,

Florida, these police officers approach every person on

board buses and trains (“that time permits”) and check

identification, tickets, ask to search luggage—all in the

name of “voluntary cooperation” with law enforcement.15

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The U.S. Supreme Court reversed. The Court ruled that Bostick’s

encounter with the police was purely voluntary, and therefore he was

not “seized” within the meaning of the Fourth Amendment. Even if

Bostick did not feel free to leave when confronted by police at the back

of the bus, the proper question, according to the Court, was whether

“a reasonable person” in Bostick’s shoes would have felt free to ter-

minate the encounter. A reasonable person, the Court concluded,

would have felt free to sit there and refuse to answer the police offi-

cer’s questions, and would have felt free to tell the officer “No, you

can’t search my bag.” Accordingly, Bostick was not really “seized”

within the meaning of the Fourth Amendment, and the subsequent

search was purely consensual. The Court made clear that its deci-

sion was to govern all future drug sweeps, no matter what the cir-

cumstances of the targeted individual. Given the blanket nature of

the ruling, courts have found police encounters to be consensual in

truly preposterous situations. For example, a few years after Bostick,

the District of Columbia Court of Appeals applied the ruling to a

case involving a fourteen-year-old girl interrogated by the police,

concluding that she must be held to the same reasonable- person

standard.16

Prior to the Bostick decision, a number of lower courts had found

absurd the notion that “reasonable people” would feel empowered to

refuse to answer questions when confronted by the police. As federal

judge Prentiss Marshall explained, “The average person encountered

will feel obliged to stop and respond. Few will feel that they can walk

away or refuse to answer.”17 Professor Tracey Maclin put it this way:

“Common sense teaches that most of us do not have the chutzpah or

stupidity to tell a police officer to ‘get lost’ after he has stopped us and

asked us for identification or questioned us about possible criminal

conduct.”18 Other courts emphasized that granting police the free-

dom to stop, interrogate, and search anyone who consented would

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likely lead to racial and ethnic discrimination. Young black men

would be the likely targets, rather than older white women. Justice

Thurgood Marshall acknowledged as much in his dissent in Bostick,

noting “the basis of the decision to single out particular passengers

during a suspicionless sweep is less likely to be inarticulable than

unspeakable.”19

Studies have shown that Maclin’s common sense is correct: the over-

whelming majority of people who are confronted by police and asked

questions respond, and when asked to be searched, they comply.20 This

is the case even among those, like Bostick, who have every reason to

resist these tactics because they actually have something to hide. This

is no secret to the Supreme Court. The Court long ago acknowledged

that effective use of consent searches by the police depends on the

ignorance (and powerlessness) of those who are targeted. In Schneck-

loth v. Bustamonte, decided in 1973, the Court admitted that if waiver

of one’s right to refuse consent were truly “knowing, intelligent, and

voluntary,” it would “in practice create serious doubt whether consent

searches would continue to be conducted.”21 In other words, consent

searches are valuable tools for the police only because hardly anyone

dares to say no.

Poor Excuse

So-called consent searches have made it possible for the police to stop

and search just about anybody walking down the street for drugs. All

a police officer has to do in order to conduct a baseless drug investi-

gation is ask to speak with someone and then get their “consent” to

be searched. So long as orders are phrased as a question, compliance

is interpreted as consent. “May I speak to you?” thunders an officer.

“Will you put your arms up and stand against the wall for a search?”

Because almost no one refuses, drug sweeps on the sidewalk (and on

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buses and trains) are easy. People are easily intimidated when the

police confront them, hands on their revolvers, and most have no idea

the question can be answered, “No.” But what about all the people

driving down the street? How do police extract consent from them?

The answer: pretext stops.

Like consent searches, pretext stops are favorite tools of law enforce-

ment in the War on Drugs. A classic pretext stop is a traffic stop moti-

vated not by any desire to enforce traffic laws, but instead motivated by

a desire to hunt for drugs in the absence of any evidence of illegal drug

activity. In other words, police officers use minor traffic violations as

an excuse—a pretext—to search for drugs, even though there is not a

shred of evidence suggesting the motorist is violating drug laws. Pre-

text stops, like consent searches, have received the Supreme Court’s

unequivocal blessing. Just ask Michael Whren and James Brown.

Whren and Brown, both of whom are African American, were

stopped by plainclothes officers in an unmarked vehicle in June 1993.

The police admitted to stopping Whren and Brown because they want-

ed to investigate them for imagined drug crimes, even though they did

not have probable cause or reasonable suspicion such crimes had actu-

ally been committed. Lacking actual evidence of criminal activity, the

officers decided to stop them based on a pretext—a traffic violation.

The officers testified that the driver failed to use his turn signal and

accelerated abruptly from a stop sign. Although the officers weren’t

really interested in the traffic violation, they stopped the pair any-

way because they had a “hunch” they might be in possession of illegal

drugs. According to the officers, they were right. The officers claimed

that the driver had a bag of cocaine sitting in his lap in plain view.

On appeal, Whren and Brown challenged their convictions on the

ground that pretextual stops violate the Fourth Amendment. They

argued that, because of the multitude of applicable traffic and equip-

ment regulations, and the difficulty of obeying all traffic rules perfectly

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at all times, the police will nearly always have an excuse to stop some-

one and go fishing for drugs. Anyone driving more than a few blocks is

likely to commit a traffic violation of some kind, such as failing to track

properly between lanes, failing to stop at precisely the correct distance

behind a crosswalk, failing to pause for precisely the right amount of

time at a stop sign, or failing to use a turn signal at the appropriate

distance from an intersection. Allowing the police to use minor traffic

violations as a pretext for baseless drug investigations would permit

them to single out anyone for a drug investigation without any evidence

of illegal drug activity whatsoever. That kind of arbitrary police con-

duct is precisely what the Fourth Amendment was intended to prohibit.

The Supreme Court rejected their argument, ruling that an offi-

cer’s motivations are irrelevant when evaluating the reasonableness

of police activity under the Fourth Amendment. It does not matter,

the Court declared, why the police are stopping motorists under the

Fourth Amendment, so long as some kind of traffic violation gives

them an excuse. The fact that the Fourth Amendment was specifi-

cally adopted by the Founding Fathers to prevent arbitrary stops and

searches was deemed unpersuasive. The Court ruled that the police

are free to use minor traffic violations as a pretext to conduct drug

investigations, even when there is no evidence of illegal drug activity.

A few months later, in Ohio v. Robinette, the Court took its twisted

logic one step further. In that case, a police officer pulled over Robert

Robinette, allegedly for speeding. After checking Robinette’s license

and issuing a warning (but no ticket), the officer then ordered Robi-

nette out of his vehicle, turned on a video camera in the officer’s car,

and then asked Robinette whether he was carrying any drugs and

would “consent” to a search. He did. The officer found a small amount

of marijuana in Robinette’s car, and a single pill, which turned out to

be methamphetamine.

The Ohio Supreme Court, reviewing the case on appeal, was obvi-

ously uncomfortable with the blatant fishing expedition for drugs. The

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court noted that traffic stops were increasingly being used in the War

on Drugs to extract “consent” for searches, and that motorists may

not believe they are free to refuse consent and simply drive away. In

an effort to provide some minimal protection for motorists, the Ohio

court adopted a bright-line rule, that is, an unambiguous requirement

that officers tell motorists they are free to leave before asking for con-

sent to search their vehicles. At the very least, the justices reasoned,

motorists should know they have the right to refuse consent and to

leave, if they so choose.

The U.S. Supreme Court struck down this basic requirement as

“unrealistic.” In so doing, the Court made clear to all lower courts

that, from now on, the Fourth Amendment should place no meaning-

ful constraints on the police in the War on Drugs. No one needs to be

informed of their rights during a stop or search, and police may use

minor traffic stops as well as the myth of “consent” to stop and search

anyone they choose for imaginary drug crimes, whether or not any

evidence of illegal drug activity actually exists.

One might imagine that the legal rules described thus far would

provide more than enough latitude for the police to engage in an all-

out, no- holds-barred war on drugs. But there’s more. Even if motor-

ists, after being detained and interrogated, have the nerve to refuse

consent to a search, the police can arrest them anyway. In Atwater v.

City of Lago Vista, the Supreme Court held that the police may arrest

motorists for minor traffic violations and throw them in jail (even

if the statutory penalty for the traffic violation is a mere fine, not

jail time).

Another legal option for officers frustrated by a motorist’s refusal

to grant “consent” is to bring a drug- sniffing dog to the scene. This

option is available to police in traffic stops, as well as to law enforce-

ment officials confronted with resistant travelers in airports and in bus

or train stations who refuse to give the police consent to search their

luggage. The Supreme Court has ruled that walking a drug- sniffing

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dog around someone’s vehicle (or someone’s luggage) does not con-

stitute a “search,” and therefore does not trigger Fourth Amendment

scrutiny.22 If the dog alerts to drugs, then the officer has probable

cause to search without the person’s consent. Naturally, in most cases,

when someone is told that a drug-sniffing dog will be called, the seized

individual backs down and “consents” to the search, as it has become

apparent that the police are determined to conduct the search one way

or another.

Kissing Frogs

Court cases involving drug-law enforcement almost always involve

guilty people. Police usually release the innocent on the street—often

without a ticket, citation, or even an apology—so their stories are rarely

heard in court. Hardly anyone files a complaint, because the last thing

most people want to do after experiencing a frightening and intrusive

encounter with the police is show up at the police station where the

officer works and attract more attention to themselves. Many people,

especially poor people of color, fear and experience police harassment,

retaliation, and abuse. After having your car torn apart by the police

in a futile search for drugs, or being forced to lie spread-eagled on

the pavement while the police search you and interrogate you for no

reason at all, how much confidence do you have in law enforcement?

Do you expect to get a fair hearing? Those who try to find an attorney

to represent them in a lawsuit often learn that unless they have bro-

ken bones (and no criminal record), private attorneys are unlikely to

be interested in their case. Many people are shocked to discover that

what happened to them on the side of the road was not, in fact, against

the law.

The inevitable result is that the people who wind up in front of a judge

are usually guilty of some crime. The parade of guilty people through

America’s courtrooms gives the false impression to the public—as well

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as to judges—that when the police have a “hunch,” it makes sense

to let them act on it. Judges tend to imagine the police have a sixth

sense—or some kind of special police training—that qualifies them

to identify people who are guilty of drug crimes without any evidence.

After all, they seem to be right so much of the time, don’t they?

The truth, however, is that most people stopped and searched in

the War on Drugs are perfectly innocent of any crime. The police have

received no training that enhances the likelihood they will spot the

guilty people as they drive by and leave everyone else alone. To the

contrary, tens of thousands of law enforcement officers have received

training that guarantees precisely the opposite. The Drug Enforcement

Agency (DEA) trains police to conduct utterly unreasonable and dis-

criminatory stops and searches throughout the United States.

Perhaps the best known of these training programs is Operation

Pipeline. The DEA launched Operation Pipeline in 1984 as part of the

Reagan administration’s rollout of the War on Drugs. The federal pro-

gram, administered by over three hundred state and local law enforce-

ment agencies, trains state and local law enforcement officers to use

pretextual traffic stops and consent searches on a large scale for drug

interdiction. Officers learn, among other things, how to use a minor

traffic violation as a pretext to stop someone, how to lengthen a rou-

tine traffic stop and leverage it into a search for drugs, how to obtain

consent from a reluctant motorist, and how to use drug- sniffing dogs

to obtain probable cause.23 By 2000, the DEA had directly trained

more than 25,000 officers in forty-eight states in Pipeline tactics and

helped to develop training programs for countless municipal and state

law enforcement agencies. In legal scholar Ricardo Bascuas’s words,

“Operation Pipeline is exactly what the Framers meant to prohibit: a

federally-run general search program that targets people without cause

for suspicion, particularly those who belong to disfavored groups.”24

The program’s success requires police to stop “staggering” num-

bers of people in shotgun fashion.25 This “volume” approach to drug

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enforcement sweeps up extraordinary numbers of innocent people. As

one California Highway Patrol Officer said, “It’s sheer numbers. . . .

You’ve got to kiss a lot of frogs before you find a prince.”26 Accord-

ingly, every year, tens of thousands of motorists find themselves

stopped on the side of the road, fielding questions about imaginary

drug activity, and then succumbing to a request for their vehicle to

be searched—sometimes torn apart—in the search for drugs. Most of

these stops and searches are futile. It has been estimated that 95 per-

cent of Pipeline stops yield no illegal drugs.27 One study found that up

to 99 percent of traffic stops made by federally funded narcotics task

forces result in no citation and that 98 percent of task-force searches

during traffic stops are discretionary searches in which the officer

searches the car with the driver’s verbal “consent” but has no other

legal authority to do so.28

The “drug-courier profiles” utilized by the DEA and other law

enforcement agencies for drug sweeps on highways, as well as in air-

ports and train stations, are notoriously unreliable. In theory, a drug-

courier profile reflects the collective wisdom and judgment of a law

enforcement agency’s officials. Instead of allowing each officer to rely

on his or her own limited experience and biases in detecting suspi-

cious behavior, a drug-courier profile affords every officer the advan-

tage of the agency’s collective experience and expertise. However, as

legal scholar David Cole has observed, “in practice, the drug-courier

profile is a scattershot hodgepodge of traits and characteristics so

expansive that it potentially justifies stopping anybody and every-

body.”29 The profile can include traveling with luggage, traveling with-

out luggage, driving an expensive car, driving a car that needs repairs,

driving with out-of-state license plates, driving a rental car, driving

with “mismatched occupants,” acting too calm, acting too nervous,

dressing casually, wearing expensive clothing or jewelry, being one of

the first to deplane, being one of the last to deplane, deplaning in the

middle, paying for a ticket in cash, using large-denomination curren-

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cy, using small- denomination currency, traveling alone, traveling with

a companion, and so on. Even striving to obey the law fits the profile!

The Florida Highway Patrol Drug Courier Profile cautioned troopers

to be suspicious of “scrupulous obedience to traffic laws.”30 As Cole

points out, “such profiles do not so much focus an investigation as

provide law enforcement officials a ready-made excuse for stopping

whomever they please.”31

The Supreme Court has allowed use of drug-courier profiles as

guides for the exercise of police discretion. Although it has indicated

that the mere fact that someone fits a profile does not automatically

constitute reasonable suspicion justifying a stop, courts routinely defer

to these profiles, and the Court has yet to object. As one judge said after

conducting a review of drug-courier profile decisions: “Many courts

have accepted the profile, as well as the Drug Enforcement Agency’s

scattershot enforcement efforts, unquestioningly, mechanistically, and

dispositively.”32

It Pays to Play

Clearly, the rules of the drug war game are designed to allow for the

roundup of an unprecedented number of Americans. The number of

annual drug arrests more than tripled between 1980 and 2005, as

drug sweeps and suspicionless stops and searches proceeded in record

numbers.33

Still, it is fair to wonder why the police would choose to arrest such

an astonishing percentage of the American public for minor drug

crimes. The fact that police are legally allowed to engage in a wholesale

roundup of people suspected of minor drug crimes does not answer

the question why they would choose to do so, particularly when most

police departments have far more serious crimes to prevent and solve.

Why would police prioritize drug-law enforcement? Drug use and

abuse is nothing new; in fact, it was on the decline, not on the rise,

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when the War on Drugs began. So why make drug-law enforcement a

priority now?

Once again, the answer lies in the system’s design. Every system of

control depends for its survival on the tangible and intangible benefits

that are provided to those who are responsible for the system’s mainte-

nance and administration. This system is no exception.

At the time the drug war was declared, illegal drug use and abuse

was not a pressing concern in most communities. The announcement

of a War on Drugs was therefore met with some confusion and resis-

tance within law enforcement, as well as among some conservative

commentators.34 The federalization of drug crime violated the con-

servative tenet of states’ rights and local control, as street crime was

typically the responsibility of local law enforcement. Many state and

local law enforcement officials were less than pleased with the attempt

by the federal government to assert itself in local crime fighting, view-

ing the new drug war as an unwelcome distraction. Participation in

the drug war required a diversion of resources away from more serious

crimes, such as murder, rape, grand theft, and violent assault—all of

which were of far greater concern to most communities than illegal

drug use.

The resistance within law enforcement to the drug war created

something of a dilemma for the Reagan administration. In order for

the war to actually work—that is, in order for it to succeed in achiev-

ing its political goals—it was necessary to build a consensus among

state and local law enforcement agencies that the drug war should be a

top priority in their hometowns. The solution: cash. Huge cash grants

were made to those law enforcement agencies that were willing to

make drug-law enforcement a top priority. The new system of control

is traceable, to a significant degree, to a massive bribe offered to state

and local law enforcement by the federal government.

In 1988, at the behest of the Reagan administration, Congress

revised the program that provides federal aid to law enforcement,

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renaming it the Edward Byrne Memorial State and Local Law Enforce-

ment Assistance Program after a New York City police officer who was

shot to death while guarding the home of a drug-case witness. The

Byrne program was designed to encourage every federal grant recipi-

ent to help fight the War on Drugs. Millions of dollars in federal aid

have been offered to state and local law enforcement agencies willing

to wage the war. This federal grant money has resulted in the prolif-

eration of narcotics task forces, including those responsible for high-

way drug interdiction. Nationally, narcotics task forces make up about

40 percent of all Byrne grant funding, but in some states as much as

90 percent of all Byrne grant funds go toward specialized narcotics

task forces.35 In fact, it is questionable whether any specialized drug

enforcement activity would exist in some states without the Byrne

program.

Other forms of valuable aid have been offered as well. The DEA

has offered free training, intelligence, and technical support to state

highway patrol agencies that are willing to commit their officers to

highway drug interdiction. The Pentagon, for its part, has given away

military intelligence and millions of dollars in firepower to state and

local agencies willing to make the rhetorical war a literal one.

Almost immediately after the federal dollars began to flow, law

enforcement agencies across the country began to compete for fund-

ing, equipment, and training. By the late 1990s, the overwhelming

majority of state and local police forces in the country had availed

themselves of the newly available resources and added a significant

military component to buttress their drug-war operations. According

to the Cato Institute, in 1997 alone, the Pentagon handed over more

than 1.2 million pieces of military equipment to local police depart-

ments.36 Similarly, the National Journal reported that between Janu-

ary 1997 and October 1999, the agency handled 3.4 million orders

of Pentagon equipment from over eleven thousand domestic police

agencies in all fifty states. Included in the bounty were “253 aircraft

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(including six- and seven-passenger airplanes, UH-60 Blackhawk and

UH-1 Huey helicopters), 7,856 M-16 rifles, 181 grenade launchers,

8,131 bulletproof helmets, and 1,161 pairs of night-vision goggles.”37

A retired police chief in New Haven, Connecticut, told The New York

Times, “I was offered tanks, bazookas, anything I wanted.”38

Waging War

In barely a decade, the War on Drugs went from being a political slo-

gan to an actual war. Now that police departments were suddenly flush

with cash and military equipment earmarked for the drug war, they

needed to make use of their new resources. As described in a Cato

Institute report, paramilitary units (most commonly called Special

Weapons and Tactics, or SWAT, teams) were quickly formed in virtu-

ally every major city to fight the drug war.39

SWAT teams originated in the 1960s and gradually became more

common in the 1970s, but until the drug war, they were used rarely,

primarily for extraordinary emergency situations such as hostage tak-

ings, hijackings, or prison escapes. That changed in the 1980s, when

local law enforcement agencies suddenly had access to cash and mili-

tary equipment specifically for the purpose of conducting drug raids.

Today, the most common use of SWAT teams is to serve narcot-

ics warrants, usually with forced, unannounced entry into the home.

In fact, in some jurisdictions drug warrants are served only by SWAT

teams—regardless of the nature of the alleged drug crime. As the

Miami Herald reported in 2002, “Police say they want [SWAT teams] in

case of a hostage situation or a Columbine-type incident, but in prac-

tice the teams are used mainly to serve search warrants on suspected

drug dealers. Some of these searches yield as little as a few grams of

cocaine or marijuana.” 40

The rate of increase in the use of SWAT teams has been astonishing.

In 1972, there were just a few hundred paramilitary drug raids per

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year in the United States. By the early 1980s, there were three thou-

sand annual SWAT deployments, by 1996 there were thirty thousand,

and by 2001 there were forty thousand.41 The escalation of military

force was quite dramatic in cities throughout the United States. In

the city of Minneapolis, Minnesota, for example, its SWAT team was

deployed on no-knock warrants thirty-five times in 1986, but in 1996

that same team was deployed for drug raids more than seven hundred

times.42

Drug raids conducted by SWAT teams are not polite encounters. In

countless situations in which police could easily have arrested some-

one or conducted a search without a military-style raid, police blast

into people’s homes, typically in the middle of the night, throwing

grenades, shouting, and pointing guns and rifles at anyone inside,

often including young children. In recent years, dozens of people have

been killed by police in the course of these raids, including elderly

grandparents and those who are completely innocent of any crime.

Criminologist Peter Kraska reports that between 1989 and 2001 at

least 780 cases of flawed paramilitary raids reached the appellate level,

a dramatic increase over the 1980s, when such cases were rare, or ear-

lier, when they were nonexistent.43 Many of these cases involve people

killed in botched raids.

Alberta Spruill, a fifty-seven-year-old city worker from Harlem, is

among the fallen. On May 16, 2003, a dozen New York City police

officers stormed her apartment building on a no-knock warrant, act-

ing on a tip from a confidential informant who told them a “convicted

felon” was selling drugs on the sixth floor. The informant had actually

been in jail at the time he said he’d bought drugs in the apartment, and

the target of the raid had been arrested four days before, but the officers

didn’t check and didn’t even interview the building superintendent.

The only resident in the building was Alberta, described by friends as

a “devout churchgoer.” Before entering, police deployed a flash-bang

grenade, resulting in a blinding, deafening explosion. Alberta went

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into cardiac arrest and died two hours later. The death was ruled a

homicide but no one was indicted.

Those who survive SWAT raids are generally traumatized by the

event. Not long after Spruill’s death, Manhattan Borough President

C. Virginia Fields held hearings on SWAT practices in New York

City. According to the Village Voice, “Dozens of black and Latino

victims—nurses, secretaries, and former officers—packed her cham-

bers airing tales, one more horrifying than the next. Most were unable

to hold back tears as they described police ransacking their homes,

handcuffing children and grandparents, putting guns to their heads,

and being verbally (and often physically) abusive. In many cases, vic-

tims had received no follow-up from the NYPD, even to fix busted

doors or other physical damage.” 44

Even in small towns, such as those in Dodge County, Wisconsin,

SWAT teams treat routine searches for narcotics as a major battlefront

in the drug war. In Dodge County, police raided the mobile home of

Scott Bryant in April 1995, after finding traces of marijuana in his

garbage. Moments after busting into the mobile home, police shot

Bryant—who was unarmed—killing him. Bryant’s eight-year-old son

was asleep in the next room and watched his father die while waiting

for an ambulance. The district attorney theorized that the shooter’s

hand had clenched in “sympathetic physical reaction” as his other hand

reached for handcuffs. A spokesman for the Beretta company called

this unlikely because the gun’s double-action trigger was designed to

prevent unintentional firing. The Dodge County sheriff compared the

shooting to a hunting accident.45

SWAT raids have not been limited to homes, apartment buildings,

or public housing projects. Public high schools have been invaded

by SWAT teams in search of drugs. In November 2003, for example,

police raided Stratford High School in Goose Creek, South Carolina.

The raid was recorded by the school’s surveillance cameras as well as

a police camera. The tapes show students as young as fourteen forced

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to the ground in handcuffs as officers in SWAT team uniforms and

bulletproof vests aim guns at their heads and lead a drug- sniffing dog

to tear through their book bags. The raid was initiated by the school’s

principal, who was suspicious that a single student might be dealing

marijuana. No drugs or weapons were found during the raid and no

charges were filed. Nearly all of the students searched and seized were

students of color.

The transformation from “community policing” to “military polic-

ing,” began in 1981, when President Reagan persuaded Congress to

pass the Military Cooperation with Law Enforcement Act, which

encouraged the military to give local, state, and federal police access

to military bases, intelligence, research, weaponry, and other equip-

ment for drug interdiction. That legislation carved a huge exception

to the Posse Comitatus Act, the Civil War–era law prohibiting the

use of the military for civilian policing. It was followed by Reagan’s

National Security Decision Directive, which declared drugs a threat to

U.S. national security, and provided for yet more cooperation between

local, state, and federal law enforcement. In the years that followed,

Presidents George Bush and Bill Clinton enthusiastically embraced

the drug war and increased the transfer of military equipment, tech-

nology, and training to local law enforcement, contingent, of course,

on the willingness of agencies to prioritize drug-law enforcement and

concentrate resources on arrests for illegal drugs.

The incentives program worked. Drug arrests skyrocketed as

SWAT teams swept through urban housing projects, highway patrol

agencies organized drug interdiction units on the freeways, and

stop-and- frisk programs were set loose on the streets. Generally,

the financial incentives offered to local law enforcement to pump up

their drug arrests have not been well publicized, leading the average

person to conclude reasonably (but mistakenly) that when their local

police departments report that drug arrests have doubled or tripled

in a short period of time, the arrests reflect a surge in illegal drug

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activity, rather than an infusion of money and an intensified enforce-

ment effort.

One exception is a 2001 report by the Capital Times in Madison,

Wisconsin. The Times reported that as of 2001, sixty-five of the state’s

eighty-three local SWAT teams had come into being since 1980, and

that the explosion of SWAT teams was traceable to the Pentagon’s

weaponry giveaway program, as well as to federal programs that pro-

vide money to local police departments for drug control. The paper

explained that, in the 1990s, Wisconsin police departments were

given nearly a hundred thousand pieces of military equipment. And

although the paramilitary units were often justified to city councils

and skeptical citizens as essential to fight terrorism or deal with hos-

tage situations, they were rarely deployed for those reasons but instead

were sent to serve routine search warrants for drugs and make drug

arrests. In fact, the Times reported that police departments had an

extraordinary incentive to use their new equipment for drug enforce-

ment: the extra federal funding the local police departments received

was tied to antidrug policing. The size of the disbursements was linked

to the number of city or county drug arrests. Each arrest, in theory,

would net a given city or county about $153 in state and federal fund-

ing. Non-drug-related policing brought no federal dollars, even for vio-

lent crime. As a result, when Jackson County, Wisconsin, quadrupled

its drug arrests between 1999 and 2000, the county’s federal subsidy

quadrupled too.46

Finders Keepers

As if the free military equipment, training, and cash grants were not

enough, the Reagan administration provided law enforcement with yet

another financial incentive to devote extraordinary resources to drug

law enforcement, rather than more serious crimes: state and local law

enforcement agencies were granted the authority to keep, for their own

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use, the vast majority of cash and assets they seized when waging the

drug war. This dramatic change in policy gave state and local police an

enormous stake in the War on Drugs—not in its success, but in its per-

petual existence. Law enforcement gained a pecuniary interest not only

in the forfeited property, but in the profitability of the drug market itself.

Modern drug forfeiture laws date back to 1970, when Congress

passed the Comprehensive Drug Abuse Prevention and Control Act.

The act included a civil forfeiture provision authorizing the govern-

ment to seize and forfeit drugs, drug manufacturing and storage equip-

ment, and conveyances used to transport drugs. As legal scholars Eric

Blumenson and Eva Nilsen have explained, the provision was justified

as an effort “to forestall the spread of drugs in a way criminal penalties

could not—by striking at its economic roots.” 47 When a drug dealer is

sent to jail, there are many others ready and willing to take his place,

but seizing the means of production, some legislators reasoned, may

shut down the trafficking business for good. Over the years, the list

of properties subject to forfeiture expanded greatly, and the required

connection to illegal drug activity became increasingly remote, leading

to many instances of abuse. But it was not until 1984, when Congress

amended the federal law to allow federal law enforcement agencies to

retain and use any and all proceeds from asset forfeitures, and to allow

state and local police agencies to retain up to 80 percent of the assets’

value, that a true revolution occurred.

Suddenly, police departments were capable of increasing the size of

their budgets, quite substantially, simply by taking the cash, cars, and

homes of people suspected of drug use or sales. At the time the new

rules were adopted, the law governing civil forfeiture was so heavily

weighted in favor of the government that fully 80 percent of forfeitures

went uncontested. Property or cash could be seized based on mere

suspicion of illegal drug activity, and the seizure could occur without

notice or hearing, upon an ex parte showing of mere probable cause to

believe that the property had somehow been “involved” in a crime. The

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probable cause showing could be based on nothing more than hearsay,

innuendo, or even the paid, self-serving testimony of someone with

interests clearly adverse to the property owner. Neither the owner of

the property nor anyone else need be charged with a crime, much less

found guilty of one. Indeed, a person could be found innocent of any

criminal conduct and the property could still be subject to forfeiture.

Once the property was seized, the owner had no right of counsel, and

the burden was placed on him to prove the property’s “innocence.”

Because those who were targeted were typically poor or of moder-

ate means, they often lacked the resources to hire an attorney or pay

the considerable court costs. As a result, most people who had their

cash or property seized did not challenge the government’s action,

especially because the government could retaliate by filing criminal

charges—baseless or not.

Not surprisingly, this drug forfeiture regime proved highly lucra-

tive for law enforcement, offering more than enough incentive to wage

the War on Drugs. According to a report commissioned by the Depart-

ment of Justice, between 1988 and 1992 alone, Byrne-funded drug

task forces seized over $1 billion in assets.48 Remarkably, this figure

does not include drug task forces funded by the DEA or other federal

agencies.

The actual operation of drug forfeiture laws seriously undermines

the usual rhetoric offered in support of the War on Drugs, namely that

it is the big “kingpins” that are the target of the war. Drug forfeiture

laws are frequently used to allow those with assets to buy their free-

dom, while drug users and small-time dealers with few assets to trade

are subjected to lengthy prison terms. In Massachusetts, for example,

an investigation by journalists found that on average a “payment of

$50,000 in drug profits won a 6.3 year reduction in a sentence for

dealers,” while agreements of $10,000 or more bought elimination

or reduction of trafficking charges in almost three-fourths of such

cases.49 Federal drug forfeiture laws are one reason, Blumenson and

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Nilsen note, “why state and federal prisons now confine large numbers

of men and women who had relatively minor roles in drug distribution

networks, but few of their bosses.”50

The Shakedown

Quite predictably, the enormous economic rewards created by both

the drug forfeiture and Byrne grant laws have created an environment

in which a very fine line exists between the lawful and the unlaw-

ful taking of other people’s money and property—a line so thin that

some officers disregard the formalities of search warrants, probable

cause, and reasonable suspicion altogether. In United States v. Reese,

for example, the Ninth Circuit Court of Appeals described a drug task

force completely corrupted by its dependence on federal drug money.

Operating as a separate unit within the Oakland Housing Authority,

the task force behaved, in the words of one officer, “more or less like

a wolfpack,” driving up in police vehicles and taking “anything and

everything we saw on the street corner.”51 The officers were under tre-

mendous pressure from their commander to keep their arrest numbers

up, and all of the officers were aware that their jobs depended on the

renewal of a federal grant. The task force commander emphasized that

they would need statistics to show that the grant money was well spent

and sent the task force out to begin a shift with comments like, “Let’s

go out and kick ass,” and “Everybody goes to jail tonight for every-

thing, right?”52

Journalists and investigators have documented numerous other

instances in which police departments have engaged in illegal shake-

downs, searches, and threats in search of forfeitable property and

cash. In Florida, reporters reviewed nearly one thousand videotapes of

highway traffic stops and found that police had used traffic violations

as an excuse—or pretext—to confiscate “tens of thousands of dollars

from motorists against whom there [was] no evidence of wrongdoing,”

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frequently taking the money without filing any criminal charges.53

Similarly, in Louisiana, journalists reported that Louisiana police

engaged in massive pretextual stops in an effort to seize cash, with the

money diverted to police department ski trips and other unauthorized

uses.54 And in Southern California, a Los Angeles Sheriff’s Department

employee reported that deputies routinely planted drugs and falsified

police reports to establish probable cause for cash seizures.55

Lots of small seizures can be nearly as profitable, and require the

expenditure of fewer investigative resources, than a few large busts.

The Western Area Narcotics Task Force (WANT) became the focus of a

major investigation in 1996 when almost $66,000 was discovered hid-

den in its headquarters. The investigation revealed that the task force

seized large amounts of money, but also small amounts, and then dis-

pensed it freely, unconstrained by reporting requirements or the task

force’s mission. Some seizures were as small as eight cents. Another

seizure of ninety-three cents prompted the local newspaper to observe

that “once again the officers were taking whatever the suspects were

carrying, even though by no stretch could pocket change be construed

to be drug money.”56

In 2000, Congress passed the Civil Asset Forfeiture Reform Act,

which was meant to address many of the egregious examples of abuse

of civil forfeiture. Some of the most widely cited examples involved

wealthy whites whose property was seized. One highly publicized case

involved a reclusive millionaire, Donald Scott, who was shot and killed

when a multiagency task force raided his two-hundred-acre Malibu

ranch purportedly in search of marijuana plants. They never found

a single marijuana plant in the course of the search. A subsequent

investigation revealed that the primary motivation for the raid was

the possibility of forfeiting Scott’s property. If the forfeiture had been

successful, it would have netted the law enforcement agencies about

$5 million in assets.57 In another case, William Munnerlynn had his

Learjet seized by the DEA after he inadvertently used it to transport

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a drug dealer. Though charges were dropped against him within sev-

enty-two hours, the DEA refused to return his Learjet. Only after five

years of litigation and tens of thousands of dollars in legal fees was he

able to secure return of his jet. When the jet was returned, it had sus-

tained $100,000 worth of damage.58 Such cases were atypical but got

the attention of Congress.

The Reform Act resulted in a number of significant due-process chang-

es, such as shifting the burden of proof onto the government, eliminat-

ing the requirement that an owner post a cost bond, and providing some

minimal hardship protections for innocent parties who stand to lose

their homes. These reforms, however, do not go nearly far enough.

Arguably the most significant reform is the creation of an “innocent

owner” defense. Prior to the Reform Act, the Supreme Court had ruled

that the guilt or innocence of the property’s owner was irrelevant to

the property’s guilt—a ruling based on the archaic legal fiction that a

piece of property could be “guilty” of a crime. The act remedied this

insanity to some extent; it provides an “innocent owner” defense to

those whose property has been seized. However, the defense is serious-

ly undermined by the fact that the government’s burden of proof is so

low—the government need only establish by a “preponderance of the

evidence” that the property was involved in the commission of a drug

crime. This standard of proof is significantly lower than the “clear and

convincing evidence” standard contained in an earlier version of the

legislation, and it is far lower than the “proof beyond a reasonable

doubt” standard for criminal convictions.

Once the government meets this minimal burden, the burden then

shifts to the owner to prove that she “did not know of the conduct

giving rise to the forfeiture” or that she did “all that reasonably could

be expected under the circumstances to terminate such use of the

property.” This means, for example, that a woman who knew that

her husband occasionally smoked pot could have her car forfeited to

the government because she allowed him to use her car. Because the

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“car” was guilty of transporting someone who had broken a drug law

at some time, she could legally lose her only form of transportation,

even though she herself committed no crime. Indeed, women who are

involved in some relationship with men accused of drug crimes, typi-

cally husbands or boyfriends, are among the most frequent claimants

in forfeiture proceedings.59 Courts have not been forgiving of women

in these circumstances, frequently concluding that “the nature and

circumstances of the marital relationship may give rise to an inference

of knowledge by the spouse claiming innocent ownership.” 60

There are other problems with this framework, not the least of which

being that the owner of the property is not entitled to the appoint-

ment of counsel in the forfeiture proceeding, unless he or she has been

charged with a crime. The overwhelming majority of forfeiture cases

do not involve any criminal charges, so the vast majority of people who

have their cash, cars, or homes seized must represent themselves in

court, against the federal government. Oddly, someone who has actu-

ally been charged with a crime is entitled to the appointment of coun-

sel in civil forfeiture proceedings, but those whose property has been

forfeited but whose conduct did not merit criminal charges are on their

own. This helps to explain why up to 90 percent of forfeiture cases

in some jurisdictions are not challenged. Most people simply cannot

afford the considerable cost of hiring an attorney. Even if the cost is

not an issue, the incentives are all wrong. If the police seized your car

worth $5,000, or took $500 cash from your home, would you be will-

ing to pay an attorney more than your assets are worth to get them

back? If you haven’t been charged with a crime, are you willing to risk

the possibility that fighting the forfeiture might prompt the govern-

ment to file criminal charges against you?

The greatest failure of the Reform Act, however, has nothing to

do with one’s due process rights once property has been seized in a

drug investigation. Despite all of the new procedural rules and formal

protections, the law does not address the single most serious prob-

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lem associated with drug forfeiture laws: the profit motive in drug-law

enforcement. Under the new law, drug busts motivated by the desire

to seize cash, cars, homes, and other property are still perfectly legal.

Law enforcement agencies are still allowed, through revenue- sharing

agreements with the federal government, to keep seized assets for their

own use. Clearly, so long as law enforcement is free to seize assets

allegedly associated with illegal drug activity— without ever charging

anyone with a crime— local police departments, as well as state and

federal law enforcement agencies, will continue to have a direct pecu-

niary interest in the profitability and longevity of the drug war. The

basic structure of the system remains intact.

None of this is to suggest that the financial rewards offered for police

participation in the drug war are the only reason that law enforce-

ment decided to embrace the war with zeal. Undoubtedly, the polit-

ical and cultural context of the drug war— particularly in the early

years— encouraged the roundup. When politicians declare a drug war,

the police (our domestic warriors) undoubtedly feel some pressure to

wage it. But it is doubtful that the drug war would have been launched

with such intensity on the ground but for the bribes offered for law

enforcement’s cooperation.

Today the bribes may no longer be necessary. Now that the SWAT

teams, the multiagency drug task forces, and the drug enforcement

agenda have become a regular part of federal, state, and local law

enforcement, it appears the drug war is here to stay. Funding for

the Byrne- sponsored drug task forces had begun to dwindle during

President Bush’s tenure, but Barack Obama, as a presidential candi-

date, promised to revive the Byrne grant program, claiming that it is

“critical to creating the anti-drug task forces our communities need.” 61

Obama honored his word following the election, drastically increasing

funding for the Byrne grant program despite its abysmal track record.

The Economic Recovery Act of 2009 included more than $2 billion in

new Byrne funding and an additional $600 million to increase state

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and local law enforcement across the country.62 Relatively little orga-

nized opposition to the drug war currently exists, and any dramatic

effort to scale back the war may be publicly condemned as “soft” on

crime. The war has become institutionalized. It is no longer a special

program or politicized project; it is simply the way things are done.

Legal Misrepresentation

So far, we have seen that the legal rules governing the drug war ensure

that extraordinary numbers of people will be swept into the criminal

justice system—arrested on drug charges, often for very minor offens-

es. But what happens after arrest? How does the design of the system

help to ensure the creation of a massive undercaste?

Once arrested, one’s chances of ever being truly free of the system

of control are slim, often to the vanishing point. Defendants are typi-

cally denied meaningful legal representation, pressured by the threat

of a lengthy sentence into a plea bargain, and then placed under for-

mal control—in prison or jail, on probation or parole. Most Americans

probably have no idea how common it is for people to be convicted

without ever having the benefit of legal representation, or how many

people plead guilty to crimes they did not commit because of fear of

mandatory sentences.

Tens of thousands of poor people go to jail every year without ever

talking to a lawyer, and those who do meet with a lawyer for a drug

offense often spend only a few minutes discussing their case and

options before making a decision that will profoundly affect the rest of

their lives. As one public defender explained to the Los Angeles Times,

“They are herded like cattle [into the courtroom lockup], up at 3 or

4 in the morning. Then they have to make decisions that affect the rest

of their lives. You can imagine how stressful it is.” 63

More than forty years ago, in Gideon v. Wainwright, the Supreme

Court ruled that poor people accused of serious crimes were entitled

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to counsel. Yet thousands of people are processed through America’s

courts annually either with no lawyer at all or with a lawyer who does

not have the time, resources, or, in some cases, the inclination to pro-

vide effective representation. In Gideon, the Supreme Court left it to

state and local governments to decide how legal services should be

funded. However, in the midst of a drug war, when politicians com-

pete with each other to prove how “tough” they can be, funding pub-

lic defender offices and paying private attorneys to represent those

accused of crimes has been a low priority.

Approximately 80 percent of criminal defendants are indigent and

thus unable to hire a lawyer.64 Yet our nation’s public defender sys-

tem is woefully inadequate. The most visible sign of the failed system

is the astonishingly large caseloads public defenders routinely carry,

making it impossible for them to provide meaningful representation

to their clients. Sometimes defenders have well over one hundred cli-

ents at a time; many of these clients are facing decades behind bars or

life imprisonment. Too often the quality of court-appointed counsel is

poor because the miserable working conditions and low pay discour-

age good attorneys from participating in the system. And some states

deny representation to impoverished defendants on the theory that

somehow they should be able to pay for a lawyer, even though they are

scarcely able to pay for food or rent. In Virginia, for example, fees paid

to court-appointed attorneys for representing someone charged with a

felony that carries a sentence of less than twenty years are capped at

$428. And in Wisconsin, more than eleven thousand poor people go

to court without representation every year because anyone who earns

more than $3,000 per year is considered able to afford a lawyer.65 In

Lake Charles, Louisiana, the public defender office has only two inves-

tigators for the 2,500 new felony cases and 4,000 new misdemeanor

cases assigned to the office each year.66 The NAACP Legal Defense

Fund and the Southern Center for Human Rights in Atlanta sued the

city of Gulfport, Mississippi, alleging that the city operated a “modern

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day debtor’s prison” by jailing poor people who are unable to pay their

fines and denying them the right to lawyers.

In 2004, the American Bar Association released a report on the sta-

tus of indigent defense, concluding that, “All too often, defendants

plead guilty, even if they are innocent, without really understanding

their legal rights or what is occurring. Sometimes the proceedings

reflect little or no recognition that the accused is mentally ill or does

not adequately understand English. The fundamental right to a lawyer

that Americans assume applies to everyone accused of criminal con-

duct effectively does not exist in practice for countless people across

the United States.” 67

Even when people are charged with extremely serious crimes, such

as murder, they may find themselves languishing in jail for years with-

out meeting with an attorney, much less getting a trial. One extreme

example is the experience of James Thomas, an impoverished day

laborer in Baton Rouge, Louisiana, who was charged with murder in

1996 and waited eight and a half years for his case to go to trial. It

never did. His mother finally succeeded in getting his case dismissed

after scraping together $500 to hire an attorney, who demonstrated to

the court that, in the time Thomas spent waiting for his case to go to

trial, his alibi witness had died of kidney disease. Another Louisiana

man, Johnny Lee Ball, was convicted of second-degree murder and sen-

tenced to life in prison without the possibility of parole after meeting

with a public defender for just eleven minutes before trial. If indicted

murderers have a hard time getting meaningful representation, what

are the odds that small-time drug dealers find themselves represented

by a zealous advocate? As David Carroll, the research director for the

National Legal Aid & Defender Association explained to USA Today,

“There’s a real disconnect in this country between what people perceive

is the state of indigent defense and what it is. I attribute that to shows

like Law & Order, where the defendant says, ‘I want a lawyer,’ and all

of a sudden Legal Aid appears in the cell. That’s what people think.” 68

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Children caught up in this system are the most vulnerable and yet are

the least likely to be represented by counsel. In 1967, the U.S. Supreme

Court ruled in In re Gault that children under the age of eighteen have

the right to legal assistance with any criminal charges filed against

them. In practice, however, children routinely “waive” their right to

counsel in juvenile proceedings. In some states, such as Ohio, as many

as 90 percent of children charged with criminal wrongdoing are not

represented by a lawyer. As one public defender explained, “The kids

come in with their parents, who want to get this dealt with as quickly

as possible, and they say, ‘You did it, admit it.’ If people were informed

about what could be done, they might actually ask for help.” 69

Bad Deal

Almost no one ever goes to trial. Nearly all criminal cases are resolved

through plea bargaining—a guilty plea by the defendant in exchange

for some form of leniency by the prosecutor. Though it is not widely

known, the prosecutor is the most powerful law enforcement official

in the criminal justice system. One might think that judges are the

most powerful, or even the police, but in reality the prosecutor holds

the cards. It is the prosecutor, far more than any other criminal justice

official, who holds the keys to the jailhouse door.

After the police arrest someone, the prosecutor is in charge. Few

rules constrain the exercise of his or her discretion. The prosecutor is

free to dismiss a case for any reason or no reason at all. The prosecutor

is also free to file more charges against a defendant than can realisti-

cally be proven in court, so long as probable cause arguably exists—a

practice known as overcharging.

The practice of encouraging defendants to plead guilty to crimes,

rather than affording them the benefit of a full trial, has always carried

its risks and downsides. Never before in our history, though, have such

an extraordinary number of people felt compelled to plead guilty, even

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if they are innocent, simply because the punishment for the minor,

nonviolent offense with which they have been charged is so unbe-

lievably severe. When prosecutors offer “only” three years in prison

when the penalties defendants could receive if they took their case to

trial would be five, ten, or twenty years—or life imprisonment—only

extremely courageous (or foolish) defendants turn the offer down.

The pressure to plead guilty to crimes has increased exponential-

ly since the advent of the War on Drugs. In 1986, Congress passed

The Anti-Drug Abuse Act, which established extremely long manda-

tory minimum prison terms for low-level drug dealing and posses-

sion of crack cocaine. The typical mandatory sentence for a first-time

drug offense in federal court is five or ten years. By contrast, in other

developed countries around the world, a first- time drug offense would

merit no more than six months in jail, if jail time is imposed at all.70

State legislatures were eager to jump on the “get tough” bandwagon,

passing harsh drug laws, as well as “three strikes” laws mandating a

life sentence for those convicted of any third offense. These mandatory

minimum statutory schemes have transferred an enormous amount of

power from judges to prosecutors. Now, simply by charging someone

with an offense carrying a mandatory sentence of ten to fifteen years

or life, prosecutors are able to force people to plead guilty rather than

risk a decade or more in prison. Prosecutors admit that they routinely

charge people with crimes for which they technically have probable

cause but which they seriously doubt they could ever win in court.71

They “load up” defendants with charges that carry extremely harsh

sentences in order to force them to plead guilty to lesser offenses

and—here’s the kicker—to obtain testimony for a related case. Harsh

sentencing laws encourage people to snitch.

The number of snitches in drug cases has soared in recent years,

partly because the government has tempted people to “cooperate”

with law enforcement by offering cash, putting them “on payroll,”

and promising cuts of seized drug assets, but also because ratting out

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co- defendants, friends, family, or acquaintances is often the only way

to avoid a lengthy mandatory minimum sentence.72 In fact, under the

federal sentencing guidelines, providing “substantial assistance” is

often the only way defendants can hope to obtain a sentence below the

mandatory minimum. The “assistance” provided by snitches is noto-

riously unreliable, as studies have documented countless informants

who have fabricated stories about drug-related and other criminal

activity in exchange for money or leniency in their pending criminal

cases.73 While such conduct is deplorable, it is not difficult to under-

stand. Who among us would not be tempted to lie if it was the only way

to avoid a forty-year sentence for a minor drug crime?

The pressure to plea-bargain and thereby “convict yourself ” in

exchange for some kind of leniency is not an accidental by-product of

the mandatory-sentencing regime. The U.S. Sentencing Commission

itself has noted that “the value of a mandatory minimum sentence lies

not in its imposition, but in its value as a bargaining chip to be given

away in return for the resource-saving plea from the defendant to a more

leniently sanctioned charge.” Describing severe mandatory sentences

as a bargaining chip is a major understatement, given its potential for

extracting guilty pleas from people who are innocent of any crime.

It is impossible to know for certain how many innocent drug defen-

dants convict themselves every year by accepting a plea bargain out of

fear of mandatory sentences, or how many are convicted due to lying

informants and paid witnesses, but reliable estimates of the number

of innocent people currently in prison tend to range from 2 percent

to 5 percent.74 While those numbers may sound small (and probably

are underestimates), they translate into thousands of innocent people

who are locked up, some of whom will die in prison. In fact, if only

1 percent of those locked in America’s prisons are actually innocent of

the crimes for which they have been convicted, that would mean tens

of thousands of innocent people are currently languishing behind bars

in the United States.

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The real point here, however, is not that innocent people are locked

up. That has been true since penitentiaries first opened in America.

The critical point is that thousands of people are swept into the crimi-

nal justice system every year pursuant to the drug war without much

regard for their guilt or innocence. The police are allowed by the

courts to conduct fishing expeditions for drugs on streets and free-

ways based on nothing more than a hunch. Homes may be searched for

drugs based on a tip from an unreliable, confidential informant who is

trading the information for money or to escape prison time. And once

swept inside the system, people are often denied attorneys or mean-

ingful representation and pressured into plea bargains by the threat of

unbelievably harsh sentences—sentences for minor drug crimes that

are higher than many countries impose on convicted murderers. This

is the way the roundup works, and it works this way in virtually every

major city in the United States.

Time Served

Once convicted of felony drug charges, one’s chances of being released

from the system in short order are slim, at best. The elimination of

judicial discretion through mandatory sentencing laws has forced

judges to impose sentences for drug crimes that are often longer

than those imposed for violent crimes in many countries around

the world. When judges have discretion, they may consider a defen-

dant’s background and impose a lighter penalty if the defendant’s

personal circumstances—extreme poverty or experience of abuse,

for example—warrant it. This flexibility—which is important in all

criminal cases—is especially important in drug cases, as studies have

indicated that many drug defendants are using or selling to support an

addiction.75 Referring a defendant to treatment, rather than sending

him or her to prison, may well be the most prudent choice—saving

government resources and potentially saving the defendant from a

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lifetime of addiction. Likewise, imposing a short prison sentence (or

none at all) may increase the chances that the defendant will expe-

rience successful re- entry. A lengthy prison term may increase the

odds that re-entry will be extremely difficult, leading to relapse, and

re- imprisonment. Mandatory drug sentencing laws strip judges of

their traditional role of considering all relevant circumstances in an

effort to do justice in the individual case.

Nevertheless, harsh mandatory minimum sentences for people

convicted of drug offenses have been consistently upheld by the U.S.

Supreme Court. In 1982, the Supreme Court upheld forty years of

imprisonment for possession and an attempt to sell 9 ounces of mari-

juana.76 Several years later, in Harmelin v. Michigan, the Court upheld

a sentence of life imprisonment for a defendant with no prior convic-

tions who attempted to sell 672 grams (approximately 23 ounces) of

crack cocaine.77 The Court found the sentences imposed in those cases

“reasonably proportionate” to the offenses committed—and not “cruel

and unusual” in violation of the Eighth Amendment. This ruling was

remarkable given that, prior to the Drug Reform Act of 1986, the lon-

gest sentence Congress had ever imposed for possession of any drug in

any amount was one year. A life sentence for a first-time drug offense

is unheard of in the rest of the developed world. Even for high-end

drug crimes, most countries impose sentences that are measured in

months, rather than years. For example, a conviction for selling a kilo-

gram of heroin yields a mandatory ten-year sentence in U.S. federal

court, compared with six months in prison in England.78 Remarkably,

in the United States, a life sentence is deemed perfectly appropriate for

someone whose only crime is a first-time drug offense.

The most famous Supreme Court decision upholding mandatory

minimum sentences is Lockyer v. Andrade.79 In that case, the Court

rejected constitutional challenges to sentences of twenty-five years

without parole for a man who stole three golf clubs from a pro shop,

and fifty years without parole for another man for stealing children’s

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videotapes from a Kmart store. These sentences were imposed pur-

suant to California’s controversial three strikes law, which mandates

a sentence of twenty-five years to life for recidivists convicted of a

third felony, no matter how minor. Writing for the Court’s majority,

Justice Sandra Day O’Connor acknowledged that the sentences were

severe but concluded that they are not grossly disproportionate to the

offense, and therefore do not violate the Eighth Amendment’s ban on

“cruel and unusual” punishments. In dissent, Justice David H. Souter

retorted, “If Andrade’s sentence [for stealing videotapes] is not grossly

disproportionate, the principle has no meaning.” Similarly, counsel for

one of the defendants, University of Southern California law profes-

sor Erwin Chemerinsky, noted that the Court’s reasoning makes it

extremely difficult if not impossible to challenge any recidivist sen-

tencing law: “If these sentences aren’t cruel and unusual punishment,

what would be?”80

Mandatory sentencing laws are frequently justified as necessary to

keep “violent criminals” off the streets, yet those penalties are imposed

most often against people who are guilty of nonviolent crimes and

drug offenses. In fact, under the three strikes regime in California, a

“repeat offender” could be someone who had only a single prior case

decades ago, and one arrest can result in multiple strikes. For example,

imagine a young man, eighteen years old, who is arrested as part of an

undercover operation and charged with two counts of dealing cocaine

to minors. He had been selling to friends to earn extra money for shoes

and basic things his mother could not afford. The prosecutor offers

him probation if he agrees to plead guilty to both charges and to snitch

on a bigger dealer. Terrified of doing prison time, he takes the deal.

Several years later, he finds his punishment will never end. Branded

a felon, he is struggling to survive and to support his children. One

night he burglarizes a corner store and steals food, toothpaste, Pepsi,

and diapers for his baby boy. He is arrested almost immediately a few

blocks away. That’s it for him. He now has three strikes. His burglary

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can be charged as a third strike because of his two prior felony convic-

tions. He is eligible for life imprisonment. His children will be raised

without a father.

Or imagine a woman struggling with drug addiction, unable to

obtain treatment, and desperate for money so she can feed her habit.

Together with her boyfriend, she burglarizes two homes, stealing tele-

visions they hope to sell. After her arrest, she takes a plea deal, spends

several years in prison, and is released with two strikes on her record,

one for each burglary. Two decades later, she relapses— after being

clean for fifteen years—and is arrested for selling crack. She made the

sale to support her relapse. That’s it for her. She can be locked up for

the rest of her life.

These examples may sound extreme, but real life can be worse. Sen-

tences for each charge can run consecutively, so a defendant can easily

face a sentence of fifty, seventy-five, or one hundred years to life aris-

ing from a single case. It is not uncommon for people to receive prison

sentences of more than fifty years for minor crimes. In fact, fifty years

to life was the actual sentence given to Leandro Andrade for stealing

videotapes, a sentence upheld by the Supreme Court.

The clear majority of those subject to harsh mandatory minimum

sentences in the federal system are people convicted of drug offenses.

Most are low- level, minor drug dealers—not “drug kingpins.” The sto-

ries are legion. Marcus Boyd was arrested after selling 3.9 grams of

crack cocaine to a confidential informant working with a regional drug

task force. At the time of his arrest, Marcus was twenty-four years old

and had been addicted to drugs for six years, beginning shortly after

his mother’s death and escalating throughout his early twenties. He

met the informant through a close family friend, someone he trusted.

At sentencing, the judge based the drug quantity calculation on testi-

mony from the informant and another witness, who both claimed they

bought crack from Marcus on other occasions. As a result, Marcus was

held accountable for 37.4 grams (the equivalent of 1.3 ounces) based

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on the statements made by the informant and the other witness. He

was sentenced to more than fourteen years in prison. His two children

were six and seven years old at the time of his sentencing. They will be

adults when he is released.81

Weldon Angelos is another casualty of the drug war. He will spend

the rest of his life in prison for three marijuana sales. Angelos, a

twenty-four-year-old record producer, possessed a weapon—which he

did not use or threaten to use—at the time of the sales. Under federal

sentencing guidelines, however, the sentencing judge was obligated to

impose a fifty-five-year mandatory minimum sentence. Upon doing so,

the judge noted his reluctance to send the young man away for life for

three marijuana sales. He said from the bench, “The Court believes

that to sentence Mr. Angelos to prison for the rest of his life is unjust,

cruel, and even irrational.”82

Some federal judges, including conservative judges, have quit in

protest of federal drug laws and sentencing guidelines. Face-to-face

with those whose lives hang in the balance, they are far closer to the

human tragedy occasioned by the drug war than the legislators who

write the laws from afar. Judge Lawrence Irving, a Reagan appointee,

noted upon his retirement: “If I remain on the bench, I have no choice

but to follow the law. I just can’t, in good conscience, continue to do

this.”83 Other judges, such as Judge Jack Weinstein, publicly refused

to take any more drug cases, describing “a sense of depression about

much of the cruelty I have been a party to in connection with the ‘war

on drugs.’”84 Another Reagan appointee, Judge Stanley Marshall, told a

reporter, “I’ve always been considered a fairly harsh sentencer, but it’s

killing me that I’m sending so many low-level offenders away for all

this time.”85 He made the statement after imposing a five-year sentence

on a mother in Washington, DC, who was convicted of “possession” of

crack found by police in a locked box that her son had hidden in her

attic. In California, reporters described a similar event:

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U.S. District Judge William W. Schwarzer, a Republican

appointee, is not known as a light sentencer. Thus it was

that everyone in his San Francisco courtroom watched in

stunned silence as Schwarzer, known for his stoic demean-

or, choked with tears as he anguished over sentencing

Richard Anderson, a first offender Oakland longshoreman,

to ten years in prison without parole for what appeared to

be a minor mistake in judgment in having given a ride to a

drug dealer for a meeting with an undercover agent.86

Even Supreme Court Justice Anthony Kennedy has condemned the

harsh mandatory minimum sentences imposed on people convicted of

drug offenses. He told attorneys gathered for the American Bar Associ-

ation’s 2003 annual conference: “Our [prison] resources are misspent,

our punishments too severe, our sentences too loaded.” He then added,

“I can accept neither the necessity nor the wisdom of federal manda-

tory minimum sentences. In all too many cases, mandatory minimum

sentences are unjust.”87

The Prison Label

Most people imagine that the explosion in the U.S. prison population

during the past twenty-five years reflects changes in crime rates. Few

would guess that our prison population leaped from approximately

350,000 to 2.3 million in such a short period of time due to changes in

laws and policies, not changes in crime rates. Yet it has been changes

in our laws—particularly the dramatic increases in the length of pris-

on sentences—that has been responsible for the growth of our pris-

on system, not increases in crime. One study suggests that the entire

increase in the prison population from 1980 to 2001 can be explained

by sentencing policy changes.88

Because harsh sentencing is a major cause of the prison explosion,

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one might reasonably assume that substantially reducing the length

of prison sentences would effectively dismantle this new system of

control. That view, however, is mistaken. This system depends on the

prison label, not prison time.

Once a person is labeled a felon, he or she is ushered into a parallel

universe in which discrimination, stigma, and exclusion are perfectly

legal, and privileges of citizenship such as voting and jury service are

off-limits. It does not matter whether you have actually spent time

in prison; your second-class citizenship begins the moment you are

branded a felon. Most people branded felons, in fact, are not sentenced

to prison. As of 2008, there were approximately 2.3 million people in

prisons and jails and a staggering 5.1 million people under “commu-

nity correctional supervision”—i.e., on probation or parole.89 Merely

reducing prison terms does not have a major impact on the majority of

people in the system. It is the badge of inferiority—the felony record—

that relegates people for their entire lives to second-class status. As

described in chapter 4, for people convicted of drug crimes, there is

little hope of escape. Barred from public housing by law, discriminat-

ed against by private landlords, ineligible for food stamps, forced to

“check the box” indicating a felony conviction on employment appli-

cations for nearly every job, and denied licenses for a wide range of

professions, people whose only crime is drug addiction or possession

of a small amount of drugs for recreational use find themselves locked

out of the mainstream society and economy—permanently.

No wonder, then, that most people labeled felons are swept back

into prisons not long after their release. According to a Bureau of Jus-

tice Statistics study, about 30 percent of those released from prison

in its sample were rearrested within six months of release.90 Within

three years, nearly 68 percent were rearrested at least once for a new

offense.91 Only a small minority are rearrested for violent crimes; the

vast majority are rearrested for property offenses, drug offenses, and

offenses against the public order.92

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T H E L O C K D O W N 1 19

For those released on probation or parole, the risks are especially

high. They are subject to regular surveillance and monitoring by the

police and may be stopped and searched (with or without their con-

sent) for any reason or no reason at all. As a result, they are far more

likely to be arrested (again) than those whose behavior is not subject

to constant scrutiny by law enforcement. Probationers and parolees

are at increased risk of arrest because their lives are governed by addi-

tional rules that do not apply to everyone else. Myriad restrictions

on their travel and behavior (such as a prohibition on “associating

with other felons”), as well as various requirements of probation and

parole (such as paying fines and meeting with probation officers), cre-

ate opportunities for arrest. Violation of these special rules can land

someone right back in prison. In fact, that is what happens a good deal

of the time.

The increase in prison admissions due to parole and probation viola-

tions is astounding. With respect to parole, in 1980, only 1 percent of

all prison admissions were parole violators. Twenty years later, more

than one-third (35 percent) of prison admissions resulted from parole

violations.93 To put the matter more starkly: About as many people were

returned to prison for parole violations in 2000 as were admitted to prison

in 1980 for all reasons.94 Of all parole violators returned to prison in

2000, only one-third were returned for a new conviction; two-thirds

were returned for a technical violation such as missing appointments

with a parole officer, failing to maintain employment, or failing a drug

test.95 In this system of control, failing to cope well with one’s exile sta-

tus is treated like a crime. If you fail, after being released from prison

with a criminal record—your personal badge of inferiority—to remain

drug free, or if you fail to get a job against all the odds, or if you get

depressed and miss an appointment with your parole officer (or if you

cannot afford the bus fare to take you there), you can be sent right

back to prison—where society apparently thinks millions of Ameri-

cans belong.

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1 2 0 T H E N E W J I M C R O W

This disturbing phenomenon of people cycling in and out of pris-

on, trapped by their second-class status, has been described by Loïc

Wacquant as a “closed circuit of perpetual marginality.”96 Hundreds

of thousands of people are released from prison every year, only to

find themselves locked out of the mainstream society and economy.

Most ultimately return to prison, sometimes for the rest of their lives.

Others are released again, only to find themselves in precisely the cir-

cumstances they occupied before, unable to cope with the stigma of

the prison label and their permanent pariah status.

Reducing the amount of time people spend behind bars—by elimi-

nating harsh mandatory minimums—will alleviate some of the unnec-

essary suffering caused by this system, but it will not disturb the closed

circuit. Those labeled felons will continue to cycle in and out of prison,

subject to perpetual surveillance by the police, and unable to integrate

into the mainstream society and economy. Unless the number of peo-

ple who are labeled felons is dramatically reduced, and unless the laws

and policies that keep people with criminal records marginalized from

the mainstream society and economy are eliminated, the system will

continue to create and maintain an enormous undercaste.

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