'Imagine you are Erma Faye Stewart, a thirty-year-old, single African Amer- ican mother of two who was arrested as part of a drug sweep in Hearne, Texas.! All but one of the people arrested were African American. You are in- nocent. After a week in jail, you have no one to care for your two small chil- dren and are eager to get home. Your court-appointed attorney urges you to plead guilty to a drug distribution charge, saying the prosecutor has offered probation. You refuse, steadfastly proclaiming your innocence. Finally, after almost a month in jail, you decide to plead guilty so you can return home to your children. Unwilling to risk a trial and years of imprisonment, you are sentenced to ten years probation and ordered to pay $1,000 in fines, as well as court and probation costs. You are also now branded a drug felon. You are no longer eligible for food stamps; you may be discriminated against in em- ployment; you cannot vote for at least twelve years; and you are about to be evicted from public housing, Once homeless, your children will be taken from you and put in foster care. A judge eventually dismisses all cases against the defendants who did not Plead guilty, At trial, the judge finds that the entire sweep was based on the testimony of a single informant who lied to the prosecution. You, however, are still a drug felon, homeless, and desperate to regain custody of your children. Now place yourself in the shoes of Clifford Runoalds, another African Merican victim of the Hearne drug bust.? You returned home to Bryan, Iz::' to attnd the funeral of your eighteen-month-old daughter. Before the tal services begin, the police show up and handcuff you. You beg the officers to let you take one last look at your daughter before she is buried. The police refuse. You are told by prosecutors that you are needed to testify against one of the defendants in a recent drug bust. You deny witnessing any drug transaction; you don't know what they are talking about. Because of your refusal to cooperate, you are indicted on felony charges. After a month of being held in jail, the charges against you are dropped. You are technically free, but as a result of your arrest and period of incarceration, you lose your job, your apartment, your furniture, and your car. Not to mention the chance to say good-bye to your baby girl. This is the War on Drugs. The brutal stories described above are not iso- lated incidents, nor are the racial identities of Erma Faye Stewart and Clif- ford Runoalds random or accidental. In every state across our nation, African Americans-particularly in the poorest neighborhoods-are subjected to tactics and practices that would result in public outrage and scandal if committed in middle-class white neighborhoods. In the drug war, the enemy is racially defined. The law enforcement methods described in chapter 2 have been employed almost exclusively in poor communities of color, result- ing in jaw-dropping numbers of African Americans and Latinos filling our nation's prisons and jails every year. We are told by drug warriors that the en- emy in this war is a thing-drugs-not a group of people, but the facts prove otherwise.Human Rights Watch reported in 2000 that, in seven states, African Americans constitute 80 to 90 percent of all drug offenders sent to prison. In at least fifteen states, blacks are admitted to prison on drug charges at a rate from twenty to fifty-seven times greater than that of white men.* In fact, nationwide, the rate of incarceration for African American drug offenders dwarfs the rate of whites. When the War on Drugs gained full steam in the mid-1980s, prison admissions for African Americans skyrocketed, nearly quadrupling in three years, and then increasing steadily until it reached in 2000 a level more than twenty-six times the level in 1983.5 The number of 2000 drug admissions for Latinos was twenty-two times the number of 1983 admissions. Whites have been admitted to prison for drug offenses at in- creased rates as well-the number of whites admitted for drug offenses in 2000 was eight times the number admitted in 1983-but their relative numbers are small compared to blacks' and Latinos'. Although the majority of illegal drug users and dealers nationwide are white, three-fourths of all people imprisoned for drug offenses have been black or Latino.8 In recentyears, rates of black imprisonment for drug offenses have dipped somewhat declining approximately 25 percent from their zenith in the mid-1990s but it remains the case that African Americans are incarcerated at grossly disproportionate rates throughout the United States. There is, of course, an official explanation for all of this: crime rates. This explanation has tremendous appealbefore you know the factsfor it is consistent with, and reinforces, dominant racial narratives about crime and criminality dating back to slavery. The truth, however, is that rates and pat- terns of drug crime do not explain the glaring racial disparities in our crimi- nal justice system. People of all races use and sell illegal drugs at remarkably similar rates.'? If there are significant differences in the surveys to be found, they frequently suggest that whites, particularly white youth, are more likely to engage in illegal drug dealing than people of color.!" One study, for exam- ple, published in 2000 by the National Institute on Drug Abuse reported that white students use cocaine at seven times the rate of black students, use crack cocaine at eight times the rate of black students, and use heroin at seven times the rate of black students.!? That same survey revealed that nearly identical percentages of white and black high school seniors use mar- fjuana. The National Household Survey on Drug Abuse reported in 2000 that white youth aged 1217 are more than a third more likely to have sold illegal drugs than African American youth.'? Thus the very same year Hu- man Rights Watch was reporting that African Americans were being arrested anA imnvicanad af nmarecedented rates oovernment data revealed that S . The notion that whites comprise the vast majority of drug users and dealersand may well be more likely than other racial groups to commit drug crimesmay seem implausible to some, given the media imagery we are fed on a daily basis and the racial composition of our prisons and jails. Upon reflection, however, the prevalence of white drug crimeincluding drug dealingshould not be surprising. After all, where do whites get their illegal drugs? Do they all drive to the ghetto to purchase them from somebody stand- ing on a street corner? No. Studies consistently indicate that drug markets, 100 THE NEW JIM CROW like American society generally, reflect our nation's racial and socioeconomie boundaries. Whites tend to sell to whites; blacks to blacks.! University stu- dents tend to sell to each other.! Rural whites, for their part, don't make 3 special trip to the 'hood to purchase marijuana. They buy it from somebody down the road.!\" White high school students typically buy drugs from whie classmates, friends, or older relatives. Even Barry McCaffrey, former direc. tor of the White House Office of National Drug Control Policv. once re. marked, if your child bought drugs, \"it was from a student of their own race generally."" The notion that most illegal drug use and sales happens in the ghetto is pure fiction. Drug trafficking occurs there, but it occurs everywhere else in America as well. Nevertheless, black men have been admitted to state prison on drug charges at a rate that is more than thirteen times higher than white men.'\" The racial bias inherent in the drug war is a major reason that 1 in every 14 black men was behind bars in 2006, compared with 1 in 106 white men.? For young black men, the statistics are even worse. One in 9 black men between the ages of twenty and thirty-five was behind bars in 2006, and far more were under some form of penal controlsuch as pro- bation or parole.?' These gross racial disparities simply cannot be explained by rates of illegal drug activity among African Americans. What, then, does explain the extraordinary racial disparities in our criminal justice system? Old-fashioned racism seems out of the question. Politicians and law enforcement officials today rarely endorse racially biased practices, and most of them fiercely condemn racial discrimination of any kind. When accused of racial bias, police and prosecutorslike most Americans express horror and outrage. Forms of race discrimination that were open and notorious for centuries were transformed in the 1960s and 1970s into something un-Americanan affront to our newly conceived ethic of color- blindness. By the early 1980s, survey data indicated that 90 percent of whites thought black and white children should attend the same schools, 71 percent disagreed with the idea that whites have a right to keep blacks PAE T & This dramatically changed racial climate has led defenders of mass incar- ceration to insist that our criminal justice system, whatever its past sins, is now largely fair and nondiscriminatory. They point to violent crime rates in the African American community as a justification for the staggering num- ber of black men who find themselves behind bars. Black men, they say, have much higher rates of violent crime; that's why so many of them are locked up. Typically, this is where the discussion ends. The problem with this abbreviated analysis is that violent crime is not re- sponsible for mass incarceration. As numerous researchers have shown, vio- lent crime rates have fluctuated over the years and bear little relationship to incarceration rateswhich have soared during the past three decades re- gardless of whether violent crime was going up or down.** Today violent crime rates are at historically low levels, yet incarceration rates continue to climb. Murder convictions tend to receive a tremendous amount of media atten- tion, which feeds the public's sense that violent crime is rampant and for- ever on the rise. But like violent crime in general, the murder rate cannot explain the growth of the penal apparatus. Homicide convictions account for a tiny fraction of the growth in the prison population. In the federal sys- tem, for example, homicide offenders account for 0.4 percent of the past decade's growth in the federal prison population, while drug offenders ac- count for nearly 61 percent of that expansion.?* In the state system, less noo-. 1 than 3 percent of new court commitments to state prison typically involve people convicted of homicide.2> As much as half of state prisoners are vio- lent offenders, but that statistic can easily be misinterpreted. Violent of- fenders tend to get longer prison sentences than nonviolent offenders, and therefore comprise a much larger share of the prison population than they would if they had earlier release dates. In addition, state prison data ex- cludes federal prisoners, who are overwhelmingly incarcerated for nonvio- lent offenses. As of September 2009, only 7.9 percent of federal prisoners 26 were convicted of violent crimes. The most important fact to keep in mind, however, is this: debates about prison statistics ignore the fact that most people who are under correctional control today are not in prison. As noted earlier, of the nearly 7.3 million people currently under correctional control, only 1.6 million are in prison.%\" This caste system extends far beyond prison walls and governs millions of THE NEW JIM CROW 102 people who are on probation and parole, primarily for nonviolent offenses, L V' aeant intn the system, branded criminals or felons, and B pa ; d-class statu ushered into a permanent second-c i follow them for life. Probationers are the clear majority of those who are . der community supervision (84 percent), and only 19 percent of they, were convicted of a violent offense.? The most corr;;non of.fense for which probationers are under supervision is a drug offense.?' Even if the analysis i limited to people convicted of felonie crimes and misdemeanorsnonviolent . about a quarter of felony defendants in large urban counties were charged with a violent offense in 2006.% In cities such as Chicago, criminal courts are clogged with low-level drug cases. In one study, 72 percent of crimina] cases in Cook County (Chicago) had a drug charge, and 70 percent of them were charged as class 4 felony possession (the lowest-level felony sacquirng records that wj]] sthus excluding extremely ming, offenders still predominate. Only charge).?! None of this is to suggest that we ought not be concerned about violent crime in impoverished urban communities. We should care deeply, and as discussed in the final chapter, we must come to understand the ways in which mass imprisonment increasesnot decreasesthe likelihood of vio- lence in urban communities. But at the same time, we ought not be misled by those who insist that violent crime has driven the rise of this unprece- dented system of racial and social control. The uncomfortable reality is that arrests and convictions for drug offensesnot violent crimehave pro- pelled mass incarceration. In many states, including Colorado and Mary- land Awmin Alfandava mncee coeivioin . L3 T | o 1 L \" e O g nonracial grounds, given the rarity of a noose or a racial slur in connection with any particular criminal case. Moreover, because blacks and whites are almost never similarly situated (given extreme racial segregation in hous- ing and disparate life experiences), trying to \"control for race\" in an ef- fort to evaluate whether the mass incarceration of people of color is really about race or something elseanything elseis difficult. But it is not impossible. A bit of common sense is overdue in public discussions about racial bias in the criminal justice system. The great debate over whether black men have been targeted by the criminal justice system or unfairly treated in the War on Drugs often overlooks the obvious. What is painfully obvious when one steps back from individual cases and specific policies is that the system of mass incarceration operates with stunning efficiency to sweep people of color off the streets, lock them in cages, and then release them into an inferior second-class status. Nowhere is this more true than in the War on Drugs. The central question, then, is how exactly does a formally colorbhnd crim- inal justice system achieve such racially discriminatory results? Rather eas- ily, it turns out. The process occurs in two stages. The first step is to grant law enforcement officials extraordinary discretion regarding whom to stop, search, arrest, and charge for drug offenses, thus ensuring that conscious and unconscious racial beliefs and stereotypes will be given free rein. Un- heidlod dicaratinn inavitahly creates hnge racial disparities. Then, the damn- search, arrest, and charge for drug offenses, thus ensuring that conscious and unconscious racial beliefs and stereotypes will be given free rein. Un- bridled discretion inevitably creates huge racial disparities. Then, the damn- ing step: Close the courthouse doors to all claims by defendants and private litigants that the criminal justice system operates in racially discrimina- tory fashion. Demand that anyone who wants to challenge racial bias in the system offer, in advance, clear proof that the racial disparities are the product of intentional racial discriminationi.e., the work of a bigot. This evidence will almost never be available in the era of colorblindness, because everyone knowsbut does not saythat the enemy in the War on Drugs can be identified by race. This simple design has helped to produce one of the most extraordinary systems of racialized social control the world has ever seen. THE NEW JIM CROW