Summary: 2. The Lockdown

This chapter outlines how the courts have reinterpreted the 4th Amendment to allow police wider, legal use of search and seizure.

The reality of the justice system in the United States is not at all close to the idealized version shown on TV. Most people are rarely ever required to appear in court. Defendants are guided through a process of shortcuts, created specifically to quickly process the large number of people through the courts. One of the main reasons for the increased numbers is the War on Drugs. A high percentage of people of color find themselves in prison for low level drug possession. A system has developed to reward mass drug arrests contributing to the conviction and imprisonment of large numbers of people of color.

The 4th Amendment is not well known by most Americans today, but was very important to the writers of the American Constitution. English colonists had no recourse when English soldiers came to their homes. As subjects of the English crown, they had to let the soldiers search and take whatever they liked. This continued harassment helped start the American Revolution and is the main reason for the 4th Amendment’s ban of search and seizure without due cause. 

In recent decades, the Supreme Court has helped wage The War on Drugs by siding with law enforcement. Rulings on several cases contesting unlawful search and seizure have rolled back 4th Amendment protections. Many critics now say that a “drug exception” exists for the 4th Amendment. These rulings have made it easier for police to conduct searches for drugs on the street, in cars, on buses, planes and trains. 

The 1968 Supreme Court case Terry v. Ohio became known as the stop-and-frisk rule. If an officer observes possible criminal activity and believes the person to be dangerous, the officer can legally stop and search them. Police can find themselves in dangerous situations with armed individuals. In practice, this ruling has enabled police to stop almost anyone, for any reason, and search them. They do not need to prove that the individual is dangerous, or that they are involved in criminal activity. They only need to ask for consent, which people generally give when confronted by police. The court acknowledged in Schneckloth v. Bustamonte (1973) that consent searches are only successful because people do not realize they can say no. This has resulted in more searches of people of color because they “look suspicious,” even though many of these searches yield few results. 

Consent searches also extend to moving vehicles. Police have developed strategies for stopping drivers using the excuse of a traffic violation. Once pulled over, the police take the opportunity to search the car. Since courts have ruled that police can keep valuable items seized during a drug related search, police are incentivized to pull people over for small infractions on the chance that they find something. The vast majority of people who are searched are innocent and are let go. It is those who are searched and found guilty of drug possession (regardless of the amount), who end up in a courtroom. This helps create the impression that consent searches carried out by police are justifiable under the law.

Further encouragement comes in the form of money. When the Reagan Administration first launched The War on Drugs, local police were not actually very interested. The drug problem was not that large. Police felt they should be focusing on solving murders and violent crimes. The Reagan administration then made it lucrative for police and sheriff’s departments across the country. Under the Byrne program, federal funds were offered to state and local police to build narcotics task forces. Under the Military Cooperation with Law Enforcement Act, passed in 1981, Congress encouraged the militarization of state and local police. SWAT teams are now used specifically to serve search warrants on suspected drug dealers, even when the situation does not call for it. 

The 1984 search and seizure laws that allow police to hold on to 80 percent of property involved in a drug bust also encourage police to search and hope they find something. It allows for those with assets to trade for their freedom. It also explains why prisons, today, are mostly filled with people who played minor parts in the drug world. Further funding under the Obama administration in 2009, as part of the Economic Recovery Act, helped to solidify these actions. The mechanics of The War on Drugs became standard practices.

The court systems have not received equal funding and have had to adapt to the increase in numbers of defendants. Most defendants barely receive legal representation and do not see the inside of a courtroom. Instead, they are encouraged to plead guilty, through a system of plea bargaining. The prosecutor offers the defendant a choice of pleading guilty to a lesser crime, with a shorter minimum sentence. This reduces the risk of going to court and being found guilty of a larger crime, with a harsher penalty. This may help the courts increase efficiency, but it has devastating effects on peoples’ lives. 

If a case does go to court, and the defendant is found guilty, judges are given very little room to weigh the specifics of a case. Mandatory minimum sentencing means that a judge cannot refer a defendant to treatment or impose a shorter prison term for a first offense. Chances of successful re-entry to society after a conviction are greatly reduced.

It is these changes to laws, rather than the rise in crime rates, that are the reason for the increase in the prison population. It also the process of labeling vulnerable people as felons that creates the cycle of poverty, once outside prison. Some convicted felons may not even serve actual time in prison. They are released on parole, but they are still subject to the limits of parole. The felon label already makes it difficult to find employment, housing and apply for benefits. Parolees are subjected to continued surveillance and monitoring by police. They are also at increased risk of arrest for parole violations, which can consist of missing a meeting with a parole officer or being unable to pay a fine. These small violations can place a former felon back in prison, instead of on a path toward recovery and a meaningful life.

Given the existing state of laws, this cycle is very difficult to break. The current system has been reoriented to target and prosecute people of color and convict them for low-level drug crimes. The felon label then marginalizes them to an even greater extent than a prison sentence. Until society decides to change these laws, these felons will continue to cycle in and out of the prison system. Society has stripped them of what few opportunities they had to contribute to the wider economy. They have been deemed worthy only of contributing to the system of mass incarceration.

Analysis: 2. The Lockdown

Alexander begins the chapter with a discussion of common representations of the criminal justice system in the media, which illustrates how mainstream ideas about the system are dangerously misleading. Alexander notes that myriad police procedurals on TV, film, and in literature depict the system from the police officer’s point of view, and she argues that this perspective is so ingrained in American society that it’s difficult to imagine the system from the accused’s point of view. Thus, this chapter sets out to examine the accused’s point of view. Alexander meticulously unravels many commonly held beliefs about the American legal system, exposing inaccuracies and misinformation, from the idea that all those accused of a crime receive legal representation to the idea that police officers need to have a warrant or even a valid reason to search a person’s property. The central thesis of the chapter is that anyone, regardless of race, financial means, or even behavior, can be subject to the harsh realities of the American penal system. This may fly in the face of many readers’ commonly held beliefs about America, which is widely believed to be a country built on freedom.

Detailing the discrepancies in the ideology around the drug war and, in later chapters, examining the discriminatory application of narcotics law, Alexander prompts readers to examine whether the real motivation behind the War on Drugs might be maintaining the racial caste system. Alexander notes that, when the War on Drugs began, drug use was on the decline, which begs the question: Why did law enforcement dedicate such extensive resources to narcotics initiatives? Though the War on Drugs was touted as a straightforward response to a societal ill, a closer look at law enforcement practices, such as drug kingpins routinely going free and white drug trafficking going unpunished, suggests the intensity of the decades’ long anti-drug campaign might be racially motivated.

The theme of the financial corruption of the American criminal justice system emerges in this chapter. Alexander follows the money, noting that, when the federal government began to incentivize drug-related convictions, the number of drug-related convictions rose, despite there being no clear evidence that drug use increased. This incentivization came in many forms, such as direct federal funding, increased military-grade equipment, and problematic kickbacks. For example, precincts were permitted to keep property and assets seized from drug arrests (or from those merely suspected of drug activity). Alexander illustrates that this financial motivation muddies the waters, potentially corrupting police efforts and, in the worst-case scenarios, creating mercenary “wolf packs” that are driven by organizational pressures and personal greed to arrest anyone they encounter on patrol. By making explicit the connection between financial wins and conviction rates, comparing the federal efforts to a systemic bribe, Alexander illustrates that, at times, the criminal justice system is more dedicated to dollars and cents than law and order.

Another theme that emerges in this chapter is the overt militarization of police forces. The federal government funneled military intelligence and millions of dollars’ worth of military gear into police precincts, which, Alexander argues, turned the War on Drugs from an ideological campaign to a literal war on American citizens. Another facet of the militarization of the police is the vast expansion of Special Weapons and Tactics (SWAT) teams to serve narcotics warrants. By comparing the use of SWAT teams to military-style raids, Alexander emphasizes that war is being waged on suspected drug users. Though the police are supposed to serve and protect citizens and create a sense of safety, for many caught up in the War on Drugs, the opposite is true. Alexander uses this framework throughout the book to illustrate how Black citizens are often targeted to such a disproportionate extent that it calls to mind the treatment of foreign enemies. In a sense, then, the War on Drugs can be understood as a manifestation of the same impulses that tore America apart during the Civil War.