Alexander begins the chapter by recounting the stories of two young African-American parents who were wrongly implicated in a drug bust, and—although neither end up actually being sentenced to prison time—lose their homes, jobs, and children as a result. She emphasizes that these stories are not “accidental,” and that if they were taking place in middle-class white communities would result in public outrage. Yet in some states, 80-90% of those sent to prison on drug crimes are African-American. While the War on Drugs has also resulted in an increase in white people being sent to prison on drug charges, this increase is “dwarfed” by the rate at which African and Latino Americans are put behind bars.
Considering that many people believe that race is the central issue within mass incarceration, it might seem strange that Alexander waits until the third chapter of the book to explicitly explain how the criminal justice system operates in a racist manner. However, by presenting her argument in this order, she attempts to cut through the indifference that much of the American public feels toward those who are negatively affected by the War on Drugs—an indifference often produced by racial prejudice.
The official explanation for the racial discrepancy in rates of incarceration is that black and Latino Americans simply commit more crime. However, studies have shown that people of all races tend to use drugs at the same rate, and that white youth are in fact more likely to deal drugs than their peers of other races. Although popular culture strongly links the sale of drugs to black communities, in fact people who use drugs statistically tend to buy them from people of their own race, no matter what race that may be.
Once again, Alexander shows that popular culture has an enormous impact in misrepresenting the reality of drug use and criminality to the American population. Although the link between black people and drugs depicted in popular culture is hardly commissioned by the government, it still acts as a kind of unofficial propaganda for the War on Drugs.
The racial bias of the criminal justice system cannot be explained by “old-fashioned racism” either, as explicitly racist messages have become taboo within political discourse. Alexander emphasizes that the vast majority of those “under correctional control” are not actually in prison, but on probation or parole. And because mass incarceration—like the rest of American society—is now framed in “colorblind,” race-neutral terms, it can be difficult to prove that it is systematically racist. Alexander argues that part of this difficulty is simply due to people’s refusal to use “common sense” and overstep the glaringly obvious fact that an enormously disproportionate percentage of black and brown people are being locked up and relegated to a permanent “second-class status.”
Here Alexander further emphasizes her earlier point that “colorblind” language, rather than being evidence of the end of racism, is in fact used to cover up—and thereby sustain—racist systems. Like her analogy of an optical illusion (something difficult to see but impossible to “unsee”) in the Introduction, this passage suggests that it is all too easy for those who wish to ignore racism in the criminal justice system to do so. Meanwhile, those with enough “common sense” perceive that the criminal justice system is very obviously racist.
The deep racism of mass incarceration has been instituted through two broad steps: first, by giving law enforcement “extraordinary discretion” in who and how they approach, and second, by refusing to accept any charges of racism that do not identify a particular racist individual as the source of the problem. Alexander points out that anti-drug policy is particularly likely to be racially discriminatory because drugs are handled in a manner unlike any other crime. When an ordinary crime takes place, the victim (or someone acting on the victim’s behalf) alerts the authorities—the first step in the process of achieving justice. In the case of drugs, there isn’t a victim as such; both the buyer and seller of drugs have no incentive to call the police. Furthermore, most Americans of all races have violated drug laws at least once in their lives, and it would clearly be undesirable to put the majority of the population in prison.
The rhetoric of being “tough on crime,” which—as Alexander has shown—is popular across the political spectrum, is usually a kind of code for supporting anti-drug efforts. However, this passage suggests that drugs are in fact a very different category of social issue from ordinary crimes such as theft, assault, and murder. Most Americans have tried drugs at least once, and many are indifferent to whether or not those around them consume drugs (as long as this doesn’t push their neighbors to commit further crimes, such as theft or assault). This then raises an important question: why are drugs illegal in the first place?
Because drug activity is “consensual” and because so many people use drugs, the police must take a more “proactive approach” in order to prosecute people for drug crimes. Furthermore, police are aware that it would be impossible to arrest every American who uses drugs and that they must therefore make a decision about who to punish for the crime of drug use. Part of the reason why the burden has fallen so squarely on African Americans is because of the association between black culture and drugs that was deliberately created by the media and government during the Reagan years. As a result, ordinary Americans have internalized the racist association between black people and drugs even if they are not consciously racist.
Some people refer to the prejudice that has emerged in the contemporary moment as “racism without racists.” This phrase evokes the unconscious bias and structural racism that Alexander describes in this passage. While there is little public support for overt racism, many ordinary people have been trained to associate African Americans with criminality and drugs. The problem is that, while “racism with racists” is easy to identify and denounce, the current system operates in such a way that no single person can really be charged with blame.
The police are hardly immune from the same bias that has been instilled into the general public, and as a result are likely to act in a racially discriminatory fashion. As a result, advocates of racial justice have argued that the police should not be allowed to exercise so much discretion when it comes to stopping and searching people. However, this has so far been met with little success. Astonishingly, in Whren vs. United States, the Supreme Court ruled that “claims of racial bias could not be brought under the Fourth Amendment,” a ruling that fits into a larger trend of the Court making it virtually impossible to fight racial discrimination within the criminal justice system on constitutional grounds.
Research on the issue of unconscious bias is still fairly new. This is no doubt partly due to the fact that in the past overt racism was much more acceptable, and thus unconscious bias was a less important problem. When the Constitution was written, unconscious bias would hardly have been at the forefront of the Founding Fathers’ minds. However, instead of allowing the Constitution to be brought up-to-date with this new field of knowledge, the Supreme Court has so far denied its relevance to criminal justice.
Alexander examines the case McCleskey vs. Kemp, in which a black man facing death for shooting a white police officer, Warren McCleskey, protested his sentence on the grounds that racial bias in the criminal justice system violated the Fourteenth and Eight Amendments. Evidence for this claim was provided in the form of 2,000 Georgia homicide records, which showed that those who murdered white people were eleven times more likely to be sentenced to death than those who murdered black people. These statistics were “the strongest [evidence] ever presented to a court regarding race and criminal sentencing”; still, the court narrowly rejected McCleskey’s claim on the grounds that evidence of conscious bias was still required.
Alexander’s presentation of McCleskey vs. Kemp suggests that the Georgia court was aware of the way racial bias affects the criminal justice system; indeed, given the strength of the statistical evidence presented, it would be hard not to be. However, by insisting that evidence of “conscious bias” was necessary, the court effectively ruled that the consequences of racism do not matter. According to the court, the only time that racism can be targeted is when there is a particular individual or group to take the blame.
Alexander argues that McClesky essentially demonstrated that “racial discrimination… was something that simply must be tolerated in the criminal justice system.” The reason the court provided for this, alarmingly, is that if McClesky’s claim was taken to be valid, it would undermine “the principles that underlie our criminal justice system.” Alexander cites another case in which an 18-year-old black man with no criminal record was sentenced to ten years for the intent to sell crack cocaine. His lawyers protested the hundred-to-one difference in sentencing length for crack versus powder cocaine, arguing that it unfairly discriminates against black people (who are more likely to be convicted for crack). In the past, courts had rejected similar claims on account of the fact that Congress held that crack was more dangerous, also citing the precedent of McClesky vs. Kemp. In this case, however, an African-American judge cited evidence of racial bias in the War on Drugs, and sentenced the young man as if the cocaine had been in powder form. This sentence was then reversed by the Court of Appeals.
The second case Alexander cites might at first provide some level of hope for criminal justice reform. The African-American judge—aware of unconscious racial bias and the devastating impact this bias has had on people of color—attempted to combat the racial injustice in sentencing conventions. Increased knowledge about issues such as the lack of a substantial difference between crack and powder cocaine might begin to slow the terrible impact of mass incarceration. The eventual outcome, however, suggests that this is unlikely. It seems more likely that, as was argued by the Georgia court, racism is so embedded in the American criminal justice system that there would be no conceivable way to eliminate racism without dismantling the whole system.
Very few challenges to the racism of the criminal justice system have been made since McClesky vs. Kemp, and none have been successful. Alexander moves on to describe the outsized power of prosecutors within the American justice system. She cites a case in which a group of lawyers sought to prove that although crack laws are fair and race-neutral on the surface, prosecutors enforce them in a racially discriminatory manner. The prosecutors in question refused to disclose their records, a decision that was upheld by the court. Therefore prosecutors remain protected from accusations of racial bias, even as studies consistently show that they statistically favor white defendants over non-whites. This discrepancy has shown to be especially severe in drug cases.
As Alexander shows, there is a wealth of research to suggest that the criminal justice system is plagued by racial discrimination at every level. However, this evidence has made little impact on the way that the criminal justice system is actually run. Unfortunately, statistical data and expert analysis mean little in comparison to the ideas produced by media sensationalism and popular culture. While these myths have little foundation in reality, they have the biggest influence in shaping the way the country works.
Before 1860, no black person is known to have served on a jury in the United States; even after this point, it was legal for the courts to “strike” black citizens from juries, and Southern courts in particular systematically denied black people from serving. Today, African Americans are still frequently prohibited from serving on juries due to “peremptory strikes,” which, although they theoretically aim to make trials more fair, are “notoriously discriminatory” and often result in all-white juries. Black people are regularly dismissed from juries for all kinds of bizarre reasons— importantly, however, none ever mentions race.
Alexander’s examination of racism in the criminal justice system shows how expertly this racism is concealed through commitment to the use of “race-neutral” language. Again, this emphasis on colorblindness depends on the idea that race neutrality is evidence of a lack of racism. However, Alexander’s account of the courts suggests that proactive action must be taken in order to eliminate racism in the criminal justice system.
Alexander argues that racial bias is at its most harmful within the police. Because police have so much discretion, they exercise an enormous influence over who gets swept up into the criminal justice system in the first place. The police choose to target black ghettoes mostly because poor African Americans have little chance of retaliation, and intense police surveillance and aggression has a devastating effect on those communities. The irony of the War on Drugs is that as soon as one dealer is taken off the streets, he will almost immediately be replaced (often causing a spurt of territorial violence in his wake). The “tough on crime” rhetoric on which politicians have relied for decades is thus nothing more than meaningless “wartime propaganda.”
Again, Alexander shows that whereas we are usually encouraged to think of the police as a source of protection from danger and violence, the reality is that in many communities, police are a major source of danger and violence. The police’s deliberate targeting of vulnerable black communities locks them into a continuous relationship of antagonism with those communities, which is only made worse by the ongoing devastation of the drug war—a war with seemingly no end in sight.
In 2002, a group of researchers in Seattle concluded that the decisions of the Seattle Police Department tended to be guided by (racist) cultural stereotypes, rather than citizen complaints or medical evidence of which drugs were causing the most harm to the community. The researchers concluded that the Seattle PD were operating according to “a racialized conception of the drug problem.” Although this research might theoretically be used by black and Latino claimants in the courts, it is highly unlikely that this would be a successful venture, as the legal system currently makes it so difficult to make claims of racial bias within the criminal justice system without evidence of consciously racist intent. While separate rules apply to suits for damages, this is largely irrelevant because neither the state nor the police can be sued for damages.
American society has reached a worrying point at which private individuals and corporations—which can be sued for damages—can be far more easily held accountable for racism than the state. This is especially troubling given the history of racism within the government and law that Alexander outlines in Chapter One. The state’s apparent lack of interest in research on racial bias in the criminal justice system is equally concerning. Overall, the image Alexander depicts is of a system that is being held accountable to no one.
Alexander argues that the “dirty little secret” of American police departments is that the Supreme Court have given them “license to discriminate” based on race. Although racial discrimination is still theoretically forbidden at other points in the criminal justice process, stopping people based on race is in fact perfectly legal—as long as race isn’t the only reason, but simply one “factor.” Numerous studies have shown that police disproportionately target people of color in random stops, despite the fact that whites are statistically more likely to be carrying drugs than non-whites. Racial profiling is thus not only unjust, but ineffective as a policing tactic. Furthermore, stop-and-frisk procedures have been widely described as intimidating and humiliating (not to mention dangerous, with numerous cases involving the assault or death of unarmed individuals by police).
Once again, the difference between the law as it is written and what takes place in reality can be stark. In the case of stop and frisk, allowing race to be “one factor” prevents racial profiling only in theory. In practice, this legal loophole has created a climate in which police aggressively target people of color while most whites are able to go about their lives without interruption. Similarly, the idea of being stopped and searched may not sound particularly terrible in the abstract. In reality, however, this experience has a devastating psychological impact, creating a climate of fear, distrust, and resentment.
Although there was a “wave” of cases challenging racial profiling in the 1990s, this was brought to a halt in 2001 by Alexander vs. Sandoval, which shut down the last “last remaining avenue available for challenging racial bias in the criminal justice system.” The precedent set by Alexander meant that as long as the state could argue that racial profiling was “necessary” to police work, it would be impossible to challenge. For now, the system of mass incarceration is entirely protected from accusations of racial bias—and hence from change.
Alexander paints a frustrating picture of the current state of civil rights litigation. It is not the case that people are simply unaware of the problem of mass incarceration, or do not have the motivation or resources to challenge it. Rather, there are individuals and organizations who have made repeated attempts to address racial bias in the system, only to be entirely shut down by the government.