THE LOCKDOWN MICHELLE ALEXANDER THE NEW JIM CROW

THE LOCKDOWN MICHELLE ALEXANDER: THE NEW JIM CROW CHAPTER 2

THE SYSTEM OF MASS INCARCERATION This system has been built by the war on drugs and is continued by the same assumptions. “Convictions for drug offenses are the single most important cause of the explosion in incarceration rates in the United States. Drug offenses alone account for two thirds of the rise in the federal inmate population and more than hals of the rise in state prisoners between 1985 and 2000. ” (Alexander, p. 60)

MYTHS ABOUT THE WAR ON DRUGS • Myth: This war is aimed at ridding the nation of drug “kingpins” or big-time dealers: • Reality: The vast majority of those arrested are NOT charged with serious offenses. In 2005, 4 out of 5 arrests were for possession. • Myth: The drug was is mainly concerned with very dangerous drugs • Reality: Arrests for marijuana possession accounted for nearly 80% of the growth in arrests. % of drug arrests resulting in prison sentences has quadrupled – and now huge prison builign boom. 300, 000 to 2 million. By the end of 2007, 7 million Americans were behind bars or on parole. System rewards mass drug arrests.

THE ELEMENTS OF THE SYSTEM • Rules of the game • Finders keepers • Unreasonable suspicion • The shakedown • Just say no • Legal Misrepresentation • Poor excuse • Bad Deal • Kissing frogs • Time Served • It pays to play • The Prison Label • Waging war

RULES OF THE GAME • Few legal rules meaningfully constrain the policy in the War on Drugs. (p. 61) • 4 th amendment eviscerated • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. • Supreme Court changed relationship between police and citizens – • All civil liberties have been undermined by the drug war • Drug testing benefit recipients and employees • Looking at relationships between police and citizens today

UNREASONABLE SUSPICION • Stop and Frisk - comes from Terry v Ohio (1968) - only requires police to have “reasonable articulable suspicion” • Slippery slope – and still sliding down it today • Relationship to the current immigration raids – similar process, different group • Patriot act – continuation of the process • “these new legal rules have ensured that anyone, virtually anwhere, for any reason, can become a target of drug-law (or immigration law) enforcement activity. ” (p. 63)

JUST SAY NO • Supreme court will not allow 4 th amendment to interfere with War on Drugs • Florida v Bostick – baggage search on buses • Never informed they have right to refuse, but non-refusal is equated with permission • Lower court said no – (quote on p. 65) Supreme Court overturned • Would a “reasonable person” felt free to refuse? Not saying no meant yes, ok. • Given police the right to call encounters consensual in preposterous situations.

JUST SAY NO • “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. ” (Professor Tracey Maclin – p. 66) • Other courts emphasized that granting police this freedom would lead to racial and thnic discrimination. “the basis of the decision to single out particular passengers during a suspicionless sweep is less likely to be inarticulable than unspeakable. ” (Justice Thurgood Marshall , p 66)

POOR EXCUSE • How to expand “consent” searches? Pretext stops • A traffic stop not motivated to enforce any traffic laws – but to hunt down drug activity • Supreme Court said traffic violation legitimate excuse – no matter what follows • Ohio v Robinette: (p. 68) Ohio Supreme Court concerned. Added “bright line rule. ” have to inform free to leave before search • Supreme Court decided unrealistic. From that point forward the Fourth Amendment had no meaningful constraint on the war on drugs. • Even if motorists refuse consent and decide to leave they can still be arrested. Police can do whatever they need to conduct the search, including calling a bomb sniffing dog to the scene. So the motorist consents.

KISSING FROGS • Court only sees the guilty – innocent released and story never heard. • Parade of guilty people in court gives the false impression that the hunch of a police officer makes good sense – after all, they are always right. • Reality: most of the people searched in the war on drugs are innocent of any crime • Operation Pipeline (1984) part of Reagan administration roll out • Officers are trained to do all of the various approaches discussed above to enable drug searches • By 2000 the DEA had directly trained more than 25, 000 officers in 48 states in Pipeline tactics.

KISSING FROGS • Volume approach • Kiss a lot of frogs before you find a prince. • One study found 98% of traffic stops made in these raids are discretionary, where the only reason the officer searches the car is with the drivers verbal consent. • Drug courier profiles – proved unreliable – could describe anyone • Scattershot • “many courts have accepted the profile, as well as the DEA’s scattershot enforcement efforts, unquestioningly, mechanistically and dispositively. “ (p. 71)

IT PAYS TO PLAY • How to get law enforcement to go along with war on drugs when they didn’t see a problem and didn’t want resources diverted from more serious crime • 1988 – Reagan admin designed the Byrne program – the federal program that provides aid to law enforcement • Millions of dollars in federal aid to state and local law enforcement to fight wage the war • Wouldn’t exist without Byrne program. • DEA offers free training, intelligence and tech support to state highway patrol agencies willing to commit their officers to highway drug interdiction. • Pentagon has given away military intelligence and millions of dollars in fire power.

WAGING WAR • SWAT teams develop in virtually every American city to fight the war on drugs • In 1972 – a few hundred paramilitary drug raids per year • Early 1980 s – three thousand annually • 1996 – thirty thousand • 2001 – forty thousand • George Bush and Bill Clinton embraced the drug war • Increased transfer of military equipment, technology and training – if they would concentrate on arrests for illegal drugs

FINDERS KEEPERS • State and local authorities were granted the right to keep whatever they seized in raids waging the war on drugs - 1984 • Local law enforcement was now profiting on the drug market • Suddenly police departments could increase the size of their budgets by simply taking the cash, cars and homes of people suspected of drug use • 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. ”

FINDERS KEEPERS • Disabuses the “kingpin” notion. • People with assets were allowed to use those assets to buy their freedom. • Smaller dealers with few assets went to jail • These examples are from a 1998 study by Blumenson and Nilsen which you can download from the link below if interested. • In New Jersey, for example, a defendant facing a “drug kingpin” indictment (twenty-five years to life) obtained a dismissal of that charge and parole eligibility in five years on a lesser conviction, by agreeing to forfeit over $1 million in assets. • In Massachusetts, “payment of $50, 000 in drug profits won a 6. 3 year reduction in a sentence for dealers, ” • Agreements to forfeit $10, 000 or more bought elimination or reduction of trafficking charges in almost threefourths of such cases. • The Massachusetts prosecutors who were investigated have a compelling reason to recalibrate the scales of justice in this way because 12 percent of their budgets are financed through forfeiture income.

THE SHAKEDOWN • Illegal shakedowns, searches and threats in search of forfeitable property and cash • Resulted in Civil Asset Forfeiture Reform Act – 2000 • Innocent owner defense – BUT: gov’t burden of proof low and then shifts to owner • Must demonstrate did all could be expected (wives, girlfriends) • No crime, no attorney – 90% not challenged • Never addressed the monetary motivation • G. W. Bush and Obama both increased Byrne funding – support of law enforcement • Has now become institutionalized and to object is being soft on crime

LEGAL MISREPRESENTATION • What happens after arrest? The design of the system helps to ensure the creation of a massive undercaste • Defendants typically denied meaningful representation • Tens of thousands of people go to jail without ever talking to an attorney • 80% of criminal defendants are indigent – large caseloads of public defenders • Virginia – fees capped at $428 • Disconnect between what we think is the state of indigent defense and what it typically is • If defendants were actually informed about what could be done they might ask for help.

BAD DEAL • Prosecutor is the most powerful law enforcement official in the criminal justice system. • Practice of overcharging: extraordinary number of people feel compelled to plead guilty, even if innocent, because the mandatory punishments for minor offenses are so severe. • Madatory setnences first time drug offense – 5 or 10 years • Other countries – no more than 6 months, if any jail time. Utilize treatment options • Encouraging snitching • Pressure to bargain and “convict yourself” • Thousands of people are swept into the criminal justice system every year in the drug war without much regard for guilt or innocence.

TIME SERVED • Elimination of judicial discretion through mandatory sentencing • Refer to treatment rather than prison may be best – not an option • Shorter sentences may increase likelihood for successful re-entry • Three strikes law • Penalties most often used against non-violent offenders in spite of the argument • “Our prison resources are misspent, our punishments too severe, our sentences too loaded. I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust. ” Justice Anthony Kennedy

THE PRISON LABEL • Prison populations leaped from 350, 000 to 2. 3 million due to changes in laws, not increases in crime, particularly sentencing policy changes. • Labeled a felon – ushered into a parallel universe • Probationers and parolees increased risk of arrest – dealing with rules that do not apply to anyone else. • Most returns to prison are not for additional crimes, but parole violations • “Unless the number of people who are labeled felons is dramatically reduced, and unless the laws and policies that keep ex-offenders marginalized from the mainstream society and economy are eliminated, the system will continue to create and maintain an enormous undercaste. ” (p. 96)