Alexander argues that the impression of the criminal justice system created within popular culture is profoundly misleading, “the modern-day equivalent of old films portraying happy slaves.” In reality, actual trials rarely take place, many of the accused never meet their attorneys, and innocent people are often pressured to plead guilty. In Chapter Two, she focuses on the War on Drugs because the contemporary American criminal justice system has been defined by anti-drug policies. 31 million people have been arrested for drug offences since the war began; the number of people in prison on drug offenses today has risen 1,100% since 1980.
In order for mass incarceration to survive, it is important that the general public have a very different idea of policing and prisons than what is actually the reality. Although we might not ordinarily think of TV shows such as “Law and Order: Special Victims Unit” as propaganda, Alexander’s explanation of the difference between the fiction and reality of the criminal justice system shows that these TV shows have a propaganda-like effect.
Alexander begins by challenging important myths about the War on Drugs. Firstly, she argues that the war does not target “kingpins” (those who control and profit most from the drug trade). Neither does the drug war mainly target “dangerous” substances; 80% of the growth in drug arrests since 1980 are for marijuana possession. In later chapters, Alexander shows how the drug war specifically targets people of color, but in Chapter Two her focus is simply on how the war manages to incarcerate such a large percentage of the American population.
The question of whether the most illicit substances (such as cocaine and heroin) pose a significant enough threat to society to warrant illegalization—or indeed whether making these substances illegal does more harm than good—remains the subject of an ongoing global debate. However, this debate is not even particularly relevant to the drug war, given that most drug arrests are for marijuana.
Alexander argues that the War on Drugs has allowed the police to operate without legal “restraints.” The Supreme Court has consistently ruled as if a “drug exception” is written into the Constitution, such that association with drugs disqualifies people from basic rights ranging from voting to housing to privacy. In other words, the drug war totally contradicts America’s status as a country defined by civil rights and liberties for all. Alexander emphasizes that “anyone, virtually anywhere, for any reason” can legally have their rights violated under anti-drug policies.
In later chapters, Alexander shows that not everyone is likely to have their rights violated through their implication with drug possession; in this part of the book, however, she seeks to show that everyone can. It is striking that in a country so characterized by the notion of freedom, there exists extensive legislation allowing the state to curb people’s most basic rights and liberties.
In the past, police were forbidden from stopping and searching people without a warrant; this was thought to be “a basic Fourth Amendment principle.” This changed with the introduction of “stop and frisk” in 1968. Alexander highlights one particular challenge that followed in the wake of the stop and frisk ruling: Florida vs. Bostick. Terrance Bostick was on a Greyhound bus and was searched at random by two police officers, who happened to find that he was carrying a pound of cocaine. The Florida Supreme Court ruled that the officers had acted in violation of the Fourth Amendment and that ordinary Americans should have the right to travel undisturbed. The US Supreme Court, however, overruled the decision on the grounds that a “reasonable person” in Bostick’s position would have felt free to refuse the police officer’s demands.
The law regarding police, searches, and Fourth Amendment rights contains many mixed messages. On the one hand, the Fourth Amendment suggests that even people who have things to hide from the state (such as a pound of cocaine) still have the right to privacy. On the other hand, the drug war has become so far-reaching that the right to privacy has effectively been dismissed as less important than the anti-drug crusade. Finally, the idea that “reasonable” people have nothing to fear from refusing to comply with the police ignores the fact that even “reasonable” encounters with police often end in arrest or violence, especially when someone refuses to comply in any way.
Alexander uses another example, of two men whom the police suspected (without evidence) of possessing drugs. These men, like Bostick, were African-American; the police stopped them on the pretext of a traffic violation, and found a bag of cocaine in the car. In their appeal, the men claimed that stopping people on the pretext of traffic offenses violates the Fourth Amendment. Alexander concurs, arguing that this makes everyone who gets behind the wheel liable to be searched by the police. However, the Supreme Court rejected the men’s appeal, upholding the right of the police to search anyone for any reason. Similar Supreme Court rulings have since further confirmed that the police are no longer constrained at all in their ability to search anyone for drugs.
Perhaps more than any other point in the book, this passage proves how arbitrary and unjust the law can be. As Alexander points out, pretty much everyone who drives a car will likely perform some sort of mild traffic violation—yet for some, this results in them being thrown in prison. Although she does not say so explicitly here, the difference between who is able to drive around without interruption and who lives in constant risk of being stopped by police is also defined largely by race.
After being unjustly stopped and searched by the police, few people expect to receive a fair trial, and many poor people and people of color rightly fear the consequences of demanding better treatment. However, although the courts seem confident of the police’s ability to detect drug offenders through some kind of “sixth sense,” in reality police are simply trained to stop and detain random people. Although the vast majority of random stops reveal no drugs, the sheer amount of people stopped by police means that the practice still produces a significant number of arrests and convictions. Officers use the stereotype of a “drug-courier profile” in order to identify people who are likely to be transporting drugs; the problem with this profile, however, is that it includes so many (contradictory) traits that it could apply to anyone.
From one perspective, the policy of stopping and searching people at random might seem justified. After all, if the person is innocent, they (theoretically) have nothing to worry about. However, Alexander’s previous discussion of Fourth Amendment rights indicates that as a society we all have much to lose from the policy of random police searches. Furthermore, it is useful to compare this policy to approaches taken to target other crimes. The police do not search people’s computers at random on the chance of finding child pornography—why are drugs different?
Having explained how police are able to arrest so many people on drug charges, Alexander moves on to the next question: why? She reiterates that at the beginning of the War on Drugs, drug abuse was neither a new nor particularly urgent problem; national rates of drug abuse were actually declining. Despite this, federal authorities chose to violate states’ rights to handle their own drug policies and divert resources away from other crimes (such as violent assault, theft, and rape) by launching a nationwide drug war. The federal government encouraged support for the War on Drugs at the local level by offering enormous amounts of money, weaponry, and training to police units.
While Alexander is careful to frame her argument such that it does not sound too conspiratorial, her account of the beginning of the War on Drugs certainly raises suspicions about the motivations of the federal government. If drug use was on the decline in the late ‘70s, why choose to attack it so viciously? Is drug use really so bad that it requires diverting resources away from violent crime and other major social problems? And why has anti-drug policy become a federal—rather than local—issue?
Thanks to this influx of money and weaponry, the War on Drugs quickly “went from being a political slogan to an actual war.” Before the drug war, SWAT teams were usually used only in extreme events such as hijackings or hostage situations; nowadays, they are most commonly used for no-knock searches of people’s homes for drugs. These searches are markedly aggressive, violent, and traumatic—particularly for children and other vulnerable people who happen to be home—and have killed people, including those totally innocent of drug charges. However, there has been little coverage of the militarization and increases in funding of the police.
As Alexander points out in the beginning of the chapter, we are encouraged to think of police as righteous, well-intentioned individuals who do their best to protect the public from violence. However, thanks to changes in the way police are funded, trained, and militarized, this is far from the reality. For many people, the police are more closely associated with the threat of violence than protection from violence.
To make matters worse, the federal government chose to incentivize police by allowing state and local authorities to keep most of the assets they seize from drug busts. This gave police and local authorities “a massive stake in the War on Drugs.” Furthermore, police were entitled to seize the cars, homes, and money of those who were simply suspected of being involved in drug crime, rather than only those who had been convicted. Few of those who had their property seized complained, in order to avoid being charged with a crime. Meanwhile, the wealthiest people arrested on drug charges—the kingpins—have enough money to easily buy their way out of jail time, whereas the lower-level dealers, users, and people in the wrong place at the wrong time fill the nation’s prisons.
Alexander’s description of the incentives used to encourage police departments to aggressively pursue drug crime raises questions about what exactly the government is trying to eradicate. On the surface, the War on Drugs seems to target drugs in a straightforward manner (even if at the expense of other crimes such as murder and theft). On the other hand, the fact that kingpins usually go free suggests that drugs might not be the real target. Is the War on Drugs really just an excuse to take away the freedom and property of poor black and brown Americans?
Unsurprisingly, many police departments have now become dependent on drug money, and there are many known cases of police ignoring the requirement for search warrants and participating in illegal “shakedowns.” Although there have been attempts to prevent such abuse through legal reform, they have proven largely unsuccessful. This is partly because there are still myriad legal ways for the police to seize the property of innocent people, but mostly it’s because the profit incentive for police remains intact. Meanwhile, President Obama dramatically increased federal funding for anti-drug efforts, thereby further embedding the War on Drugs as a permanent component of the American political system.
Rather than an effective solution to tackling the problem of drug crime, the War on Drugs has become a self-fulfilling cycle. Despite the amount of money and resources already spent on tackling drugs, and despite how many people the drug war has put behind bars, President Obama still chose to hugely increase federal spending on anti-drug efforts. The deeply ironic fact that America’s police departments are funded by drug money proves that the drug war is a self-perpetuating machine.
After being arrested, few people have a chance of ever truly escaping the grip of the criminal justice system. Few receive adequate legal representation and many do not understand their rights. Children are particularly unlikely to request a lawyer, and in some states 90% of children are charged without one. Almost all drug cases do not go to trial but are resolved through plea bargaining, with many innocent people pressured to plead guilty, a phenomenon that “has increased exponentially since the advent of the War on Drugs” partly as a result of mandatory sentencing laws. Although the criminal justice system has always imprisoned innocent people, the scale at which this is currently taking place is unprecedented.
As this passage shows, the success of mass incarceration depends on the confusion and fear of those who find themselves caught up in the criminal justice system, whether they are innocent or not. Seeing how the police and prisons have affected their communities, many people feel so intimidated by the criminal justice system that they will accept whatever unjust treatment they receive, whether that involves not meeting their lawyer or accepting a plea bargain even if they are innocent.
Before mandatory minimum sentencing laws, judges were sometimes lenient if the defendant faced issues of poverty, addiction, or abuse. However, mandatory minimum sentences mean that judges are rarely involved and could not exercise such leniency even if they wanted to. Unlike in the rest of the world, where sentences for selling drugs tend to be measured in months, in America it is common for these sentences to be decades long, and even first-time offenders are frequently sentenced to life in prison. Alexander provides examples of real people whose lives are destroyed by extraordinarily long sentences for minor crimes (which those sentenced were often barely involved with). She notes that even the conservative Supreme Court justice Anthony Kennedy—who was appointed by Reagan—has called mandatory minimum sentencing unnecessary and “unjust.”
Alexander’s descriptions of mandatory minimum sentencing laws emphasizes the fact that the American criminal justice system has all but completely done away with notions of mercy and nuance—at least when it comes to drug crime. Whereas the impression of criminal justice we receive from popular culture evokes long trials in which the defendant’s innocence is subjected to long, sophisticated debates, when it comes to those arrested for minor drug offenses, the courts seem almost entirely indifferent to whether or not the defendant is guilty and whether they receive a fair sentence.
Despite the problems caused by mandatory sentencing, mass incarceration would not be solved by decreasing the lengths of sentences. This is because of the stigma associated with “the prison label,” which makes felons who have finished their sentence “second-class citizens.” Because felons are barred from accessing public housing, welfare, and many kinds of employment, most end up back in prison. 68% of people released from prison end up back inside within three years, normally for violating one of the many rules of probation and parole. Unless mandatory sentences are eliminated, fewer people are convicted, and prisoners are supported in their reentry into society, mass incarceration will inevitably continue.
Again, this passage raises questions about the purpose of the War on Drugs and of prisons in general. In other countries, prisons are treated as a last-resort method of keeping the public safe from dangerous people and rehabilitating those who have been driven to commit crimes. However, with so many people locked up for non-violent crimes and such high rates of readmission, America’s prison system seems to be more focused on creating a permanent “underclass” than helping society.