Chapter 3: "The Color of Justice" Summary
Using the example of two victims of a Hearne, Texas, drug raid that was predicated on false testimony from a police informant, Alexander discusses how people of color are disproportionately arrested for and convicted of drug crimes—despite copious evidence that proves whites use drugs at the same or higher rate as black citizens. To understand how a system can have racist results without explicitly racist motives, Alexander says the law enforcement’s unfettered discretion on who or where to search for drugs allows implicit personal bias to influence the demographics of who is labeled as criminals. In addition, the court system makes it nearly impossible for anyone to allege that the system is racist, since explicit evidence that supports this analysis does not exist.
To explain how the system is racist, Alexander distinguishes drug law-enforcement from other types of police activity. While traditional crimes usually begin with a lead or a tip that directs police toward a specific person, drug crimes are often sought out by the police themselves. This means that law enforcement have total control over whom they select as part of their search for drug crime. Alexander blames the media’s sensationalized coverage of crack cocaine in the 1980s for influencing the average person’s ideas about what a drug abuser looks like. As a result, many people—including law enforcement—target African Americans as potential drug criminals.
However, most people do not consider themselves biased against African Americans, often citing their black relatives and friends as proof. Alexander argues that implicit biases, or those that operate on a subconscious level, can override our conscious desire not to be racist. To explain this, Alexander notes numerous research studies that have confirmed that most white participants harbor unconscious stereotypes about black people. Despite this, most law enforcement and civilians do not accept that they could be making racist assumptions or decisions, making this problem invisible.
To illustrate how the court system protects law enforcement from claims of bias, Alexander details the Supreme Court Case McCleskey v. Kemp. A death-row inmate named Warren McCleskey challenged his death sentence on the grounds that the state of Georgia disproportionately sought the death penalty for black individuals. Despite using statistical analyses to support the validity of his claim, McCleskey did not prevail: the Court said that despite the statistical evidence of bias, there was no proof that the prosecutor in McCleskey’s case was intentionally racially biased. Alexander asserts that the judgement in McCleskey v. Kemp effectively protected the entire justice system from accusations of racial bias.
To further illustrate the racial bias of mass incarceration, Alexander discusses the differences in mandatory minimum sentences among various illegal drugs. Defendants who are in possession of crack cocaine receive far harsher punishments than those in possession of powder cocaine, though these are two different forms of the same substance. This “hundred-to-one” sentencing disparity has profound racial implications, as inner-city black men are more likely to possess crack than powder cocaine, due to its lower sale price. These sentencing rules mean that first-time defendants with small amounts of crack, as in the case of Edward Clary, are given disproportionately long sentences compared to users of cocaine (who are predominantly white).
Alexander then discusses several court cases challenging racially discriminatory sentencing that were successfully dismissed based on the ruling in McCleskey v. Kemp. In the case of Armstrong v. United States , the Supreme Court ruled that defendants who allege racial bias from prosecutors must first provide evidence showing that white defendants should have been subject to harsher punishments than they received. Alexander says this ruling creates a conundrum: in...
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order for such evidence to be obtained, one needs access to prosecutorial records, but theArmstrong decision denies access to these records without first providing evidence. As a result, prosecutors are essentially immune to claims of racial bias.
Racial bias is also present during jury selection. While Batson v. Kentucky made it unconstitutional to exclude or remove jurors based on race, many prosecutors are able to circumvent this so long as they maintain the guise of impartiality. The practice of peremptory striking, which allows both prosecutors and defense attorneys to remove jurors they don’t believe are suited to a particular case, is often used to remove black jurors. Juries are selected from either voter registries or driver’s license lists, both of which contain disproportionately fewer people of color than exists in the general population. Furthermore, felons are prohibited from serving on juries—and thirty percent of black men are convicted felons. Considering the above factors, Alexander says juries can be quickly shuffled to remove any people of color with few who might replace them.
In Purkett v. Elm, the Supreme Court further sanctioned racial discrimination in jury selection, arguing that any race-neutral reason a prosecutor lists for excluding a juror is an acceptable one—no matter how insignificant or absurd.
To justify their targeting of inner-city black “ghettos” for drug crime detection, law enforcement and their supporters claim it is easier to detect such crimes in these neighborhoods and less controversial, since the politically powerful might complain if police used similar tactics in white neighborhoods. However, Alexander cites a 2002 University of Washington study that largely debunks these common defenses of racial profiling. The study analyzed data in Seattle drug arrests, finding that local law enforcement concentrated its drug policing on one mixed-race outdoor drug exchange location that was mostly associated with crack, even though statistics showed that other drugs, such as heroin, were linked with more hospitalizations and violent incidents in the region than crack. According to the study, this disparity indicates that law enforcement often use racialized schema when deciding which drug dealers or users to focus enforcement operations on.
In addition, precedent dictates that law enforcement are permitted to use race as a discretionary factor when choosing whom to target for traffic stops. The United States v. Brignoni-Ponce decision, for instance, explicitly allows immigration enforcement officers to target individuals who appear Mexican. Although Alexander acknowledges that this case does not specifically permit drug enforcement officers to racially profile, these cases and others do grant police significant discretion to racially profile, as long as race is only one of the factors used when searching out a potential criminal.
Alexander then describes various research studies across the country, including both traffic stops and pedestrian ones. In each of the studies listed, most notably in New Jersey, New York City, and Los Angeles, the data show that police overwhelmingly target young black men, despite evidence that white drivers selected for random drug searches were more likely to produce contraband—as the New Jersey research suggests. While police justify racial profiling on the grounds that criminals and poor people of color living in urban “ghettos” are more likely to be guilty, the facts indicate that these false stereotypes are the true culprit behind mass incarceration.
Alexander concludes the chapter by offering an overview of the legal landscape, adding the “little noticed” Alexander v. Sandoval case to bolster her argument. In Sandoval, the Court ruled that individual citizens and civil rights groups do not have a cause of action under Title VI of the Civil Rights Act of 1964. Most racial discrimination cases were brought under Title VI, and when individuals lost the right to sue under the law, nearly all of the discrimination cases being brought against law enforcement were permanently dropped.
