How race discrimination became legal again


Michelle Alexander in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, showed how racial discrimination has returned to the United States in the guise of the so-called war on drugs.

Young black men, and black people in general, are singled out for searches, arrests and punishment based on their race.  Surveys show little difference between drug use by white and black Americans.  Yet the vast majority of people in prison on drug charges are poor young black men, and the vast majority of black people sentenced to prison are guilty only of drug use.

Then by virtue of their criminal records, blacks convicted of drug use become second-class citizens.  As felons, they become ineligible by law to serve in the armed forces, to receive federal housing, aid to education or public assistance.  In some states, they lose the right to serve on juries or to work in many fields requiring occupational licenses.  Very often they lose the right to vote.  Moreover, while it is illegal with few exceptions to discriminate against people in hiring, renting or lending on the basis of race, it is perfectly legal to refuse jobs, apartments or loans to convicted felons.

This is no small matter.  Alexander pointed out that 80 percent of Chicago’s black male work force are felons.  Most black felons are guilty only of drug use, a victimless crime.  Yet they can go to prison for life for drug use, based on one conviction and two counts on another conviction.  Prior to 1988, according to Alexander, the maximum sentence for mere drug use was one year in prison.

alexander.m.newjimcrowShe said the war on drugs was part of a backlash against the victory of the civil rights movement.  Through the 1960s and 1970s, right-wing leaders such as Barry Goldwater, George Wallace, Richard Nixon and Ronald Reagan argued that the real problem was not poverty or racism, but lawbreaking.  They said the civil disobedience of Martin Luther King and the sit-in demonstrators legitimated violent crime and the rioting by poor black people in large American cities from 1964 to 1971.  When President Reagan announced the war on drugs in 1981, his target was the poor black neighborhoods.   Every President since Reagan, including Bill Clinton and Barack Obama, has continued or stepped up the war on drugs.

The Fourth Amendment to the Constitution prohibits unreasonable and warrant-less searches and seizures.  Civil rights laws prohibit applying a different legal standard to blacks than to whites.  But this protection was broken down, court decision by court decision.  Police officers are entitled to stop and frisk individuals on the street, or motorists in their cars, based on their personal judgment, provided the decision is not based solely on race.  And it is up to the individual to prove that racism is the motive, which is impossible unless the police officer comes right out and admits it.

Police have the same discretion in home break-ins.  A typical drug search involves a SWAT team breaking down a door in the middle of the night, throwing in smoke grenades and pointing guns at everyone in sight, including children and young people.

It doesn’t matter if 90 percent of the searches are of black people, even though black people are not by any measure 90 percent of illegal drug uses.  The Supreme Court has ruled that statistical disparities are not relevant in search and seizure cases.  You have to prove the individual search was motivated by individual racism or a policy of racism and, in a Catch-22, you do not have standing to subpoena records to provide discrimination unless you already have proved discrimination.

The same applies to statistical disparities in sentencing and in everything else.  Barack Obama, who was not a poor young black man, admitted to using illegal drugs in his youth, as have Al Gore and Newt Gingrich.  If they had been arrested and charged, they would not have had political careers.  I’ve never used drugs myself, but I’ve come across a number of people in my life—all of them white, and including many newspaper reporters—who have.

Applicants for public housing are barred if they have criminal records.  Tenants are expelled if any family members or visitors are involved in drug use, whether on or off the premises and whether or not there is any evidence the tenant knew about it.  This is a policy that dates from Bill Clinton.

Police have the right to seize cash, automobiles or houses if they can show they have reason to believe the property was involved in drug use.  At one time they had free rein to take property and use the proceeds for the budgets of their departments.  Now there is an “innocent owner” defense, but the burden of proof is on the owner.  If your property is seized, but you are not charged with a crime, you have no right to a court-appointed attorney.

Now it is true that these abuses of police power fall on middle-class and white people, and not just on poor black people.  Abuses of power are not self-limiting.  But being subject to police abuse, going to prison and being cut off from the opportunity to work or to function in society ever after is a typical experience and expectation of young black men in large American cities.

And it also is true that there are a lot of things wrong in poor black city neighborhoods, including violent crime, that arise for other reasons.  But the war on drugs is not a solution or part of a solution.  It is a problem that makes other problems worse.

To sum up:  It is legal to single out young black men for searches, arrests and prosecution provided you don’t say it is because they are black.  And it is legal and in some cases mandatory to bar them from access to employment, housing, education and federal benefits, and from military service, jury service and voting, which are the defining characteristics of citizenship.

Click on The New Jim Crow for Michelle Alexander’s summary of her book in Mother Jones.

Click on What We Don’t Talk About When We Talk About Jobs for a report by Andy Kroll in Mother Jones.

Click on Stopped-and-Frisked For Being a F**king Mutt, for an an audio recording of a routine encounter by New York police and a young black man, along with commentary in The Nation.

Click on Drug, Alcohol, Tobacco Use Broken Down By Race, Ethnicity for statistics from the U.S. government’s National Study on Drug Use and Health.

Click on Race, Drugs and Law Enforcement for a report on U.S. drug enforcement by Human Rights Watch.

Click on The trouble with “colorblindness” and Baltimore: casualty of a failed drug war for earlier posts of mine.

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One Response to “How race discrimination became legal again”

  1. John Sanderson Says:

    In New Hampshire, the state motto, “Live Free or Die,” on their license plates as well, (the 2nd part of the quote mentions that indeed death is a possibility), well…it’s very much time for citizens’ armed revolt. Success or even a start is problematic. Well, we can sure plan on keeping flags at half mast, pretending they’re for brown citizens, not for armed brownshirts.


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