I am finishing up Michelle Alexander’s book The New Jim Crow and find myself absolutely appalled. I have been writing about the many injustices in law enforcement and the courts for nearly a decade. I thought I knew how bad it was. But some of the statistics and court rulings in this book have shocked even me.
She writes about the case of Christopher Lee Armstrong, who was arrested in 1992 on charges of conspiracy to distribute more than 50 grams of crack cocaine. The prosecutor decided to try Armstrong in federal court, where the penalties were much higher than in state court, and the federal public defenders who handled his case found it remarkable that they had never seen a single case of a white defendant in a case involving crack tried in federal court. Over the previous three years, they had handled 53 such cases; 48 of the defendants were black, 5 were Latino. None were white.
We have the perception in this country that powder cocaine is a drug used primarily by white people, while crack cocaine is used primarily by black people. That perception is false. In fact, there isn’t much of a difference in the rates of buying and selling crack between the different racial groups. Yet blacks are arrested at a far higher rate than whites for possession and selling of crack. And that’s just the beginning of the problem. Once arrested, black defendants are far more likely to be charged, convicted and sentenced to prison — and infinitely more likely to be sent to federal court rather than state court for longer sentences. In fact, the government in that case submitted a list of more than 2,000 crack cases in federal courts over a three year period. All but 11 of them were black; not a single one was white. Not one.
Yet the courts ignored all of this, and refused to allow Armstrong’s attorneys to file a subpoena for records from the prosecutor that would allow them to show a pattern of racial injustice through the patterns of which cases were sent to federal court and which to state court. In 1996, the Supreme Court ruled that the prosecutors did not have to make any evidence available to the defense, concluding that courts must show great deference to prosecutors in how they go about their business, even in the face of such staggering statistical evidence of bias, whether conscious or unconscious.
This is quite similar to the way the government handles standing in warrantless wiretap cases, with this shell game that requires someone to prove that they were the target of illegal surveillance before they have standing to sue over it — but they aren’t going to tell you that, so you can’t prove it. In this case, the court demands that the defendants prove the very thing they are requesting data to help them prove. Heads the government wins, tails you lose. Actually, we all lose. Our criminal justice system is broken from top to bottom.
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