As depressingly expected, the grand jury in St. Louis County, Missouri did not indict Darren Wilson, the police officer who shot Michael Brown 12 times from a great distance. Also as depressingly expected, the result was more violence and destruction as protests turned into riots. I’m not going to say much about this specific case because I think we need to take a step back and see it is but a single symptom of a much deeper problem within our criminal justice system.
In early 2012, I wrote a series of four posts detailing why America’s criminal justice is broken and deeply racist at every possible level. In the first one, I pointed to the disparities between which defendants get charged in federal court, where there are stiffer penalties for drug crimes. It is entirely up to the prosecutor whether to charge in state or federal court and the Supreme Court has not only ruled that they can do this, it has ruled that no evidence of racial disparity in such decision-making need even be produced:
She [Michelle Alexander] 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.
In part two I cited the many studies that show that the police are far more likely to pull over and search the car of a black or Latino driver than a white one even though white drivers are actually more likely to be found with contraband in the car.
A study of stops by the New Jersey State Police on the New Jersey Turnpike, for example, found that 15% of the drivers on the turnpike were minorities, but blacks were 42% of those stopped for a traffic violation and 72% of those subsequently arrested — despite the fact that blacks and whites were equally as likely to be violating traffic laws at the time. 77% of all searches were of minorities. A similar study in Maryland found that 17% of drivers on a major highway were black, but 70% of those stopped and searched were black. For minorities on the whole, they constituted 21% of all drivers but 80% of those who were stopped and searched.
But here’s the even more important finding. In both of those studies, whites who were pulled over and searched were actually more likely to have illegal drugs or contraband in their vehicles. In New Jersey, whites were twice as likely to be found with illegal drugs or contraband than blacks and five times more likely than Latinos. The same thing held true in Maryland. So even though white drivers were far more likely to be caught breaking the law if stopped and searched, black and Latino drivers were far, far more likely to be pulled over by the police.
Lots of other studies back that up. In one county in Florida, 5% of motorists were black or Latino; more than 80% of those stopped were black or Latino. In Illinois, 8% of the population is Latino but more than 30% of those stopped were Latino — and again, whites were significantly more likely to be found with drugs when they were pulled over. In Oakland, blacks were twice as likely to be stopped and three times more likely to be searched than whites.
In New York City, the police routinely stop and frisk pedestrians walking down the street, more than half a million people a year. More than 80% of them are black or Latino. Between 1997 and 2006, more than 350,000 people in NYC were arrested for marijuana possession; blacks were five times more likely than whites to be arrested, even though we know that whites smoke marijuana at slightly higher rates than blacks.
In part three, I talked about what happens once someone is arrested, how prosecutors used overcharging to force plea bargains, virtually eliminating the ability to plead not guilty. I also talked about our failed public defender system, which gives the illusion of justice without the reality of it.
Because the vast majority of those targeted for arrest and prosecution are poor minorities, about 90% of them are represented by public defenders appointed by the court. In most states and local areas, public defenders are seriously underpaid and overworked and lack all resources to mount a credible defense. In most cases, the defendant doesn’t even meet their attorney until literally a few minutes before going into court. The attorney has done no investigation (and couldn’t afford to do it even if they wanted to), hasn’t even spoken to their client, and then has a few minutes to tell them what to do — which is almost always to plead guilty.
There are many reasons for this. First, as I said, they just don’t have the time to go to trial. In Detroit, for instance, there are five part-time public defenders who handle an average of 2,400 cases a year. They can’t spend even one day on a trial, much less spend the time preparing for it, interviewing witnesses, preparing briefs and motions, and so forth. So their goal is to push people through as quickly as possible.
Second, the prosecutors often multiply charges in order to force people to plead guilty. They’ll charge them with multiple offenses, each of them carrying mandatory minimum sentences, but offer a deal — we’re gonna charge you with multiple counts that add up to 30 years in prison, but if you plead guilty to one felony count we’ll recommend a year in prison and probation after that. Even if you’re innocent and know it, what choice do you have? Your attorney can’t really defend you in court anyway, so you could easily lose and end up spending the rest of your life locked up.
And in part four I looked at what happens after someone pleads guilty or is convicted. The system is designed to virtually eliminate any genuine opportunity for an ex-con to get their life together and improve themselves.
Once you have a felony conviction on your record, even for a minor offense like marijuana possession, you are effectively shut out of mainstream society. Even if you were totally on the straight and narrow and dedicated to bettering yourself, there are incredible roadblocks in your path, especially if you’re poor (as the overwhelming majority of them are).
When you get out of jail, your odds of finding a job are dramatically reduced by having to check the box on the application that says you’ve been convicted of a felony. Want to go to college? You are now ineligible for Pell grants and other forms of tuition assistance. You can’t support yourself, but you’re also now ineligible for many forms of public assistance, including public housing and, in many states, even food stamps. You may not even be allowed to vote for a number of years, or ever, depending on the state you’re in.
On top of that, you’ve probably got a huge bill from the state or county stemming from your stay in jail — fees paid to the public defender office and the courts, per diem charges from the jail, fees paid to the parole officer for keeping track of you. And if you can’t pay them, you can be rearrested for failing to live up to the terms of your probation and thrown back in jail to start the whole process over again. You could hardly design a more perfect system for creating a permanent underclass that is shut out of society, herded into ghettos and prevented from ever improving their lives. This is what Michelle Alexander calls the New Jim Crow.
And it doesn’t even have to be motivated overtly by racism. There are built in incentives that push the actors at every level in the same direction to maintain that caste system. Police departments qualify for federal grants by increasing the number of people arrested for drugs, so the focus isn’t on the kingpins but on arresting as many of the low level users and dealers as they can. Prosecutors are elected and they get reelected by pumping up their conviction rate, giving the incentive to get guilty pleas whenever possible. Everyone is acting in their own rational self-interest, even if they aren’t motivated by racism.
The United States has now constructed the most powerful system of mass incarceration the world has ever seen and created a permanent underclass that is not unlike the caste system in India. And the courts have made it all but impossible to bring a legal challenge on due process or equal protection grounds. It is a moral outrage and it must be dismantled.
The war on drugs and America’s mass incarceration system has destroyed millions of lives and entire communities. It should be a matter of national shame. And that second to last paragraph is an important one. It doesn’t really matter whether most cops are racists (I don’t believe they are), the incentives in place assure the result even if no one is making a consciously racist decision.
So when we talk about the horrifying situation in Ferguson, Missouri, let’s put it in the context of a criminal justice system that is corrupt, racist and broken from top to bottom, from the police to the prosecutors to the judges. Even if Darren Wilson had been indicted and convicted, something that very, very rarely happens, it wouldn’t do anything to fix the larger problem and the justifiable rage that it induces. It is but one star in a constellation of injustice.
As a humanist, I believe we have a moral obligation to fight for justice, not only for ourselves but for everyone.