A war has been declared against poor communities of color, and police are expected to wage it.
When I was in high school, I was taught a story about American history. It went basically like this: The Founding Fathers created the Bill of Rights, which enshrined personal liberty into law. But being flawed men, they did not think of extending these rights to black slaves. This error was corrected over time: we fought the civil war, struck down Jim Crow, and marched for civil rights—trying to create a society where a person’s worth depended on the content of her character, not the color of her skin. This long and difficult process culminated in the election of Barack Obama, whose presidency seemed to be the strongest proof that the ark of history did, indeed, bend towards justice. I watched his inauguration in the auditorium of my high school, as living proof of the validity of this narrative.
When I was in high school, I also read Aleksandr Solzhenitsyn’s description of life in a gulag, and was taught about the horrors of repressive countries where citizens lack basic rights. The Bill of Rights would prevent any such thing from happening on American soil.
But there were many things I was not taught. For example, I was not taught that the United States currently has more people behind bars than Stalin ever had. Nor was it mentioned that, with less than 5% of the world’s population, we have over 20% of the world’s prisoners. None of my teachers likely knew that the United States not only has more prisoners per capita than China—an authoritarian country—but more prisoners in total—more prisoners than a country with over four times our population. In my class on American government, we did not learn that the US incarceration rate is six to seven times that of most European countries. In high school, we learned a little about Nelson Mandela, but we did not learn that the United States imprisons a greater percentage of its black population than South Africa during Apartheid.
When I was in high school, a police officer came in to give us a talk about illegal drugs. He was part of the D.A.R.E. program (Drug Abuse Resistance Education), which has been repeatedly proven ineffective. As if to underline the point, a substantial percentage of my white classmates went on to experiment with drugs, and I cannot recall a single instance of serious legal repercussions faced by any of them. We were not routinely stopped and searched, our homes were not broken into, we did not know anyone who was carted off to jail. My university was the same story: substantial levels of drug use with little enforcement and few consequences. For a white American growing up in these circumstances, the only way to learn about America’s enormous prison population—fueled by a War on Drugs that never seemed to manifest in white neighborhoods—would be to read a book like this one.
In this book, Michelle Alexander describes a criminal justice system totally incompatible with what we think of as the land of the free. She describes a system in which police focus attention on poor, black neighborhoods, and are given legal cover to racially profile. She describes police conducting searches without probable cause and confiscating money and items for mere suspicions. In this system, private residences can be broken into without warning by militarized SWAT teams, often on flimsy or false evidence. Alberta Spruill, a 57 year-old woman in Harlem, died of a heart attack when a flash bang grenade was thrown into her apartment. In 2015, a flash bang grenade was thrown into a baby’s crib in Georgia, burning the infant. In 1992 Donald Scott, a reclusive millionaire, was killed in his own home, apparently because police hoped to confiscate his assets. In none of these cases were drugs found. The case of Breonna Taylor is only the most recent example of this.
Simply put, the Bill of Rights has not prevented a situation from arising that would not be out of place in a book by Aleksandr Solzhenitsyn.
The Fourth Amendment is intended to protect us from “unreasonable searches and seizures,” and requires that warrants have “probable cause” and to specify the “things to be seized.” But when someone can be stopped on the street and patted down based on mere suspicion, or when someone can be stopped in their car and told to lie down in the street while police rummage through their car, confiscating any loose cash, then this constitutional language is dead letter.
The Eighth Amendment forbids “excessive bail” and “excessive fines,” and prohibits “cruel and unusual punishment.” Meanwhile, since the vast majority of those arrested are living in or near poverty, people routinely sit in jails for months, without being convicted of a crime, simply because they cannot make bail. When prisoners are released, they are provided with a pittance at the gate and told to go find work. At a time of extreme financial vulnerability, many are required to pay bills for their own incarceration, their own mandatory drug programs, and their own probation requirements.
As far as cruel and unusual punishment goes, the United States is notorious for being one of the few developed countries that maintains the death penalty. But even putting that to the side, the United States imposes prison sentences for drug offenses that are unusual in the world context, and undeniably cruel. In the Supreme Court case Harmelin v. Michigan, the court upheld a conviction of a life sentence without parole for possession of 672 grams of cocaine. Also unusual and cruel are the penalties imposed on criminals, even after serving their prison sentences. They are not eligible for food stamps or public housing, and often are forever deprived of the right to vote or serve on a jury. And this is putting aside the legal discrimination against former convicts when it comes to housing and employment. In short, any amount of prison time can turn one into a second-class citizen.
The Sixth Amendment guarantees citizens the right to a “speedy” trial, though I have already mentioned that many people are held in jail, unable to pay bail, for weeks, months, or even years. Though the amendment guarantees a “public” trial, many are thrown into prison without having had a trial at all. This is because prosecutors can tack on charge after charge, with little restraint, meaning a guilty verdict could result in decades behind bars. Faced with such a prospect, even some innocent people take plea deals in order to shorten their sentences.
The amendment guarantees an “impartial jury,” but jury selection—and the exclusion of black jurors—has been common practice for decades. Last, the amendment grants the accused the right to “the Assistance of Counsel,” but, as noted, many are imprisoned without ever having spoken to a lawyer. Even those who do ask for public counsel are wont to be sorely disappointed. Unlike prosecutors—remarkably powerful in the current system—public defenders are underpaid and overworked. The New York Times reports on one lawyer in Louisiana who had 194 cases at the same time.
The Thirteenth Amendment outlaws slavery but makes an exception for convicted criminals. This exception has blossomed into an enormous industry of cheap prison labor. Prisoners work, sometimes voluntarily and sometimes involuntarily, for far less than the minimum wage. The government also provides tax incentives for businesses to use prison, and it is a popular choice. Prisoners making a few cents per hour have labored for Starbucks, Walmart, and Victoria’s Secret, to name just three of the dozens of companies. In seven states, prisoners work the State Capitol Buildings and Governor’s Mansions, cleaning the spaces for the legislators who write the crime bills. In New York City, prisoners were used to dig the mass graves on Hart Island, where the city’s indigent are buried.
Why did this happen? Up until around the 1970s, the United States had an incarceration rate that was broadly similar to other developed countries. The change was political, and started with Nixon, who pioneered the “law and order” rhetoric that was to replace explicit mentions of race. Ronald Reagan put this rhetoric into action by initiating the War on Drugs, ushering in legislation that beefed up enforcement and instituted harsher sentences. But the Democrats certainly do not have clean hands, either. Michelle Alexander singles out the 1994 Crime Bill as the worst piece of legislation in the War on Crime, which was signed into law by Bill Clinton and written by none other than Joe Biden (even Bernie Sanders voted for it). The result of this legislation was a frightening increase in the incarceration rate. And it is difficult to see the timing of this vast expansion—coming right on the heels of the landmark civil rights legislation of the 1960s—as coincidental.
If our criminal justice system is really so egregious, why did it take us so long to realize it? One answer is obvious: the War on Drugs (which Alexander holds as mostly responsible for mass incarceration) is primarily directed against poor people of color, who have little political power. If SWAT teams were regularly raiding college dorms and frat houses—which they would be doing if we were really serious about the evils of drug use—then this level of police overreach and incarceration would never be tolerated.
But the other reason that this system was tolerated for so long is that, unlike earlier forms of segregation, the new War on Crime is formally colorblind. Instead of explicit mentions of race, mass incarceration is supported by the logic of meritocracy. Meritocracy is a seductive idea, not only because it allows us to say that the downtrodden “deserve it”—they are criminals after all—but because it always throws up exceptional counter-examples to the rule. This allows us to turn away from the thousands of black and brown people behind bars and turn toward remarkable people like Barack Obama and, indeed, Michelle Alexander herself. Yet just as the remarkable rags-to-riches stories of some entrepreneurs does not show that the economy is fair, the extraordinary success of Oprah Winfrey does not show that racism is dead.
Michelle Alexander has written an important and, in retrospect, a remarkably prescient book. Writing during the euphoria of the early Obama years, she alerted the public to an enormous and, at the time, largely invisible tragedy. Mass incarceration is simply incompatible with a free society; it has torn apart black and brown communities, and it harms many white Americans (mostly poor) as well. Now, as the current pandemic is spreading through our overcrowded prisons, decarceration is especially vital. And, of course, people who have served their time should not be forced to endure second-class citizenship once they are released. The spate of disturbing police killings is just the most visible symptom of a system that arrests far too many people, and can be reduced simply by decreasing the number of arrests. Decades after the War on Drugs was declared, we have millions behind bars, on probation, or on parole; and as the recent heroine epidemic has demonstrated, the drugs have not gone anywhere.
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