The New Jim Crow

by Michelle Alexander

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The War on Drugs

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In 1971, President Richard Nixon set forth what would become the guiding principles of the United States' decades-long "War on Drugs": eradication, interdiction, and incarceration. Note that education, recovery, reform, and welfare programs are not part of the plan. The so-called War on Drugs has focused on disrupting the flow of narcotics from Latin America (a largely futile endeavor) and incarcerating drug offenders at extreme and disproportionate rates. Many scholars, Michelle Alexander included, have noted that the harsh sentencing policies enacted by the federal government have actually increased drug-related crime.

Curiously enough, when the War on Drugs was first declared, drug-related crime was actually quite low—much lower than it is today. Why then was the War on Drugs declared? Alexander argues that it was backlash against the Civil Rights Movement, which brought an end to the original Jim Crow laws in the South. This can be seen in the clearly selective and biased application of all laws associated with the War on Drugs. Take, for example, traffic stops. In theory, traffic stops are supposed to have some reasonable justification. In practice, however, police officers have the discretion to stop whomsoever they chose. This results in a disproportionate number of stops targeting minorities, in particular African Americans. We call this "racial profiling."

Once someone has been arrested, prosecutors often pile up charges against the offenders to intimidate them into taking plea deals. In most of these cases, prosecutors would not be able to make the trumped-up charges stick in court, but fear of a lengthy prison sentence leads offenders to accept unfair plea deals. If a defendant decides to go to trial, they will often be judged by a white jury. This is no accident. Before every trial, prosecutors, along with defense attorneys, select the jury through a process called voir dire. Prosecutors are free to reject a potential jury member so long as they can come up with a non-race related reason to reject them—even if the juror’s race is obviously the real reason for the dismissal. These race-neutral justifications don’t have to actually be plausible, and the Supreme Court has allowed prosecutors to rule out black jurors for fairly absurd things such as having long hair or inherently "suspicious" beards.

Relevant Court Cases

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Alexander v. Sandoval

This case was decided by the Supreme Court in 2001. Plaintiffs in the case argued that it was illegal under Title VI of the Civil Rights Act of 1964 for the Alabama Department of Public Safety to offer driver's license examinations only in English, because it discriminates against non-English speaking drivers. The Supreme Court decided that the plaintiff lacked standing to bring the case to trial in the first place, because Title VI provides no "private right of action" for individual or civil rights groups to sue under the law.

Armstrong v. United States

Christopher Lee Armstrong and his friends were arrested during a drug raid. His lawyers noticed an alarming trend in drug cases involving crack: that none (zero) of the cases in federal court had white defendants. Most were African American, and a small handful were Latino. In order to prove bias in prosecuting, Armstrong's lawyers needed a complete list of all the cases handled by the prosecutor's office; but prosecutors refused to release the list in discovery. The Supreme Court later decided that the defendant's lawyers were not entitled to the prosecutorial records without more evidence of prosecutorial discrimination—the very evidence they were fighting to obtain.

Atwater v. City of Logo Vista

In this case, the Supreme Court decided that police "may arrest motorists for minor traffic violations and throw...

(This entire section contains 1499 words.)

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them in jail (even if the statutory penalty for the traffic violation is a mere fine…)."

Batson v. Kentucky

In 1985, the Supreme Court ruled in Batson v. Kentucky that the Fourteenth Amendment prohibits all prosecutors from showing racial bias during jury selection. This landmark decision was supposed to prevent prosecutors from rejecting African American jurors based on their race. In practice, however, the prosecutors can find ways around this.

Brown v. Board of Education

This landmark Supreme Court case was decided in 1954. In it, the Court declared that all state laws mandating the segregation of public schools were unconstitutional. In legal terms, this case brought an end to segregation in the South. In practical terms, however, the case changed nothing, and most of the public schools in the South remained segregated for another decade. Furthermore, politicians angered by the case passed many additional Jim Crow laws as retribution. Slowly, however, the case was able to make a historic impact on the entire nation.

California v. Acevedo

This Supreme Court decision upheld the police's right to obtain evidence via warrantless searches.

Dred Scott v. Sandford

This landmark 1857 Supreme Court decision upheld the institution of slavery, claiming that African Americans had no civil rights because they were not considered citizens.

Harmelin v. Michigan

This case was decided by the Supreme Court in 1991. It involved a man who had been sentenced to life in prison for attempting to sell 672 grams of crack cocaine. His lawyers argued that the punishment was cruel and unusual under the 8th Amendment, but the Court disagreed. It ruled that life in prison was not a cruel and unusual punishment in this particular case.

Lockyer v. Andrade

This 2003 Supreme Court case ruled that California's "three strikes" law mandating 25 years to life in prison for third-time offenders is not cruel and unusual punishment.

McCleskey v. Kemp

In this 1987 Supreme Court case, the Court ruled that, despite obvious statistical evidence of racial bias in Georgia's implementation of the death penalty, the death sentence in the McCleskey case could not be overturned, because there was no clear evidence of discriminatory "purpose." In other words, the court ruled that McCleskey could only claim racial discrimination if he could prove that the prosecutor or jury in his case intentionally targeted him due to his race (essentially requiring an admission of racism on their part). This case had major implications for any future racial bias claims as the Court made it clear that implicit bias and/or valid evidence of overwhelming systemic discrimination do not constitute violations of the equal protection clause.

McLaurin v. Oklahoma

George W. McLaurin was an African American man seeking entrance to a respected PhD program at the University of Oklahoma. Segregation was still in effect then (1950), and the university failed to provide McLaurin with a means of attending classes separately from whites. The Supreme Court ruled that this was wrong and that the university was required to make facilities available to African Americans like McLaurin. It did not outline how this should be done.

Miller El v. Cockrell

This 2003 Supreme Court decision reversed a lower court's ruling and said that the prosecution's use of "jury shuffling" and their decision to ask jurors different questions depending on their race amounted to illegal racial bias. Alexander notes that racial bias in jury selection is often less easy to prove than it was in this particular case.

Neal v. Delaware

This 1880 Supreme Court case ruled that the state of Delaware had shown unlawful racial bias in the selection of juries. The Court ruled that dismissing potential jurors solely based on their race is a violation of their equal rights.

Plessy v. Ferguson

This 1896 Supreme Court upheld Jim Crow laws under the "separate but equal" doctrine, which was used to justify and protect the judicial system from charges of racial bias. The ruling was overturned in 1954 when the court ruled in another landmark case, Brown v. Board of Education.

Purkett v. Elm

This case was decided by the Supreme Court in 1995. It involved an African American defendant in Missouri who alleged that the prosecutor in his case discriminated against two potential male jurors on the basis of race. The prosecutor denied this, claiming that he rejected one of the jurors based on his "long hair." The Court accepted this as a plausibly "race neutral" explanation for the elimination of black jurors.

Ruffin v. Commonwealth

This case was brought before the Virginia Supreme Court in 1871. It involved the rights of prisoners in state custody. When the Court made its decision, it ruled that

"[A prisoner] has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the State."

The decision made it possible for the state to treat prisoners as property and to hire them out to slave owners, who often worked them to death.

Schneckloth v. Bustamonte

In this 1973 case, the Supreme Court ruled that the state is not required to inform potential suspects of their right to refuse a search of their vehicle.

Smith v. Allwright

This landmark 1994 Supreme Court case shot down a Texas law that prohibited African Americans from voting in primaries. The Court found this form of disenfranchisement unconstitutional.

Swain v. Alabama

This case was decided in 1944 and put an end to all-white primary elections.

Terry v. Ohio

This 1968 Supreme Court decision has since become known as the "stop and frisk" rule. It gives the police the right to stop and conduct a limited search of anyone displaying unusual conduct that leads officers to believe criminal activity is taking place or intended. Such limited searches were meant to be conducted "to discover weapons that might be used against the officer." In practice, however, the stop and frisk rule is largely used to profile and search potential drug offenders.

United States v. Brignoni-Ponce

This 1975 Supreme Court decision made it illegal for police officers to stop drivers solely on the basis of race. It did, however, leave the door open for the Court to later grant police officers discretionary privileges to stop anyone they found vaguely "suspicious."

United States v. Reese

This was the Supreme Court's first voting rights case after the passage of the Fifteenth Amendment. In it, the Court ruled that it was illegal for states to prohibit people from voting based on race. It did not, however, decree that voting was an inalienable right, and so left the door open for various "Jim Crow" laws that instituted voting restrictions targeted at minorities.

Whren v. United States

This case was decided by the Supreme Court in 1996. In a unanimous decision, the Court ruled that a minor traffic violation was reason enough for a police officer to stop a driver.

Yick Wo v. Hopkins

In 1886, the Supreme Court struck down the convictions of two Chinese laundry owners who had been operating their businesses without a license. The Court ruled that, because the law had been implemented unfairly (the City of San Francisco had denied laundry licenses to all Chinese applicants), the Court did not even need to consider whether the law itself was written in a discriminatory way. "Though the law itself be fair on its face," the Court said, "and impartial in its appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations…" then it is in fact discriminatory. The defendant in Armstrong v. United States based their constitutional challenge on the Yick Wo ruling but was unsuccessful.




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