The New Jim Crow Chapter 3 Summary & Analysis

Summary: 3. The Color of Justice

This chapter outlines how “The War on Drugs” targets people of color in the United States.

Drug busts are now commonplace tactics used by police in the name of clearing neighborhoods of illegal drugs. The innocent people of color who get swept up in those drug busts do not receive the same level of outrage that might happen if they were white. Instead, they are usually encouraged to plea-bargain and admit their guilt, in order to avoid a longer sentence. They are made felons, subject to probation and fines, and as a result, often lose their jobs, housing and benefits. They also lose their right to vote. They become a voiceless underclass, just like slavery and Jim Crow before it, simply by virtue of their skin color.

Crime rates in the United States have increased. Data also show that people of all races use and sell illegal drugs at similar rates, but whites are not arrested or indicted at the same rates for drug use. Society tolerates these disparities because a majority of whites still believe racist ideas about minorities and believe them responsible for increased crime rates. In fact, some data show that illegal drug use is higher among whites than Blacks, but it is most often African Americans, especially young Black men, who are in prison, or under some sort of oversight like probation.

Law enforcement deny racial bias by hiding behind race neutral laws. They blame the higher rate of violent crime in Black communities, but violent crime has gone down over the last few decades while overall incarceration rates have climbed. This does not even account for the people who are still under probationary control. Violent crime does exist in poor neighborhoods, but most arrests made in these areas are drug related. The rise in drug arrests clog the judicial system and make it more likely that defendants will plead to a lesser charge. They return to the neighborhoods jobless and homeless and may contribute to violent crime: but it is the high rate of drug arrests that fuel the initial cycle.

The mass incarceration system allows society to create an underclass of people of color, without appearing overtly racist. It does this by granting police wide discretion to stop and search almost anyone. On the surface, this does not appear racist. In practice, it allows police officers inherent biases (even police officers of color) to stop more people of color than others. The laws that have been passed and upheld over the decades also keep people of color from contesting these biased arrests. These laws require proof and the new system has been designed to operate without leaving proof of the racial bias in the system. Official arrest records never say that someone was arrested because they were Black. They say that they were arrested because they exhibited behavior that was either dangerous or indicative of drug activity. The racial bias is only borne out by the numbers of Black and brown men who sit, underused in poor communities.

The problem with illegal drugs is that the victims and perpetrators are not as clear cut as with violent crime. Both sellers and buyers of drugs are happy parties to the exchange. None of these people usually call the police. The War on Drugs required police to figure out who to arrest. Relying on inherent racial biases that already existed in society at large, media and law enforcement created stereotypes of dangerous Black drug criminals. Crime became synonymous with Black and brown neighborhoods. More whites actually use drugs than people of color, but that is not the image that society has of the “drug user” or “drug dealer.” Police also were conditioned to believe that people of color were sources of the “drug problem.” This translates into more searches and more arrests of people of color.

Once arrested, people of color are also subjected to inherent bias in the prosecution and sentencing aspects of the judicial system. Prosecutors are granted a lot of discretion in how to charge defendants. Whether acknowledged or not, biases occur. Studies have been done in the last few decades showing that many more Black and brown defendants are prosecuted and sentenced for drug crimes. These same studies show that people of all races use illegal drugs, but whites tend not to be prosecuted in such large numbers.

Lawyers for Black defendants have also used data to try to prove that white defendants are guided through state courts, where drug penalties are less severe. Black defendants are guided to the federal courts where penalties are more severe. The Supreme Court has ruled to preserve the discretion of the prosecutor. The only way to truly prove racial bias would be to know the internal workings of the prosecutor’s office. But the Supreme Court continues to protect the prosecutorial arm of the law. While the inner workings of prosecutors’ offices remain closed to defendants, lawyers have a difficult time building a case to show racial discrimination.

If a defendant does not plea bargain to a lesser charge, the case does go to court. The defendant should receive a jury of his or her peers. For people of color, the system filters many of their peers out of the jury pool at the front end. Juries are selected from the pool of registered voters or Department of Motor Vehicle rolls. People of color are less likely to register to vote or to own or drive cars. Convicted felons are restricted from voting, and therefore are also restricted from serving on juries. A disproportionate number of Black men are convicted felons. If a Black or brown juror should make it into a jury pool, data show that lawyers manipulate the jury pool to eliminate people who might be empathetic to Black or brown drug-crime defendants. Since they are not held to a high standard of reasoning, lawyers find excuses to eliminate jurors, thus masking any overt racial stereotyping.

Where Black and brown defendants face the most discrimination is in the daily policing of their neighborhoods. Police avoid overt use of racial terms when describing their techniques, but they do not spend their days patrolling white suburban neighborhoods. Funding for the the War on Drugs is contingent on quotas. Police departments are incentivized to find and arrest drug offenders. Data show that people of all races use illegal drugs at similar rates. Police receive much less political pushback if they focus their resources on Black and brown neighborhoods. Neighborhoods with convicted felons who have lost the right to vote have less political clout. The police will meet their quota of arrests and continue to receive federal funding.

Much of this racial profiling and discrimination should be challengeable under the 14th Amendment, but the Supreme Court has set precedent in rulings over the last decades giving discretion to police and prosecutors. This has ensured that inherent racial bias continues to operate within the judicial system and is very difficult to challenge.

Analysis: 3. The Color of Justice

In this chapter, Alexander builds off of the inconsistencies and conflicts in the War on Drugs she established in previous chapters and analyzes how these corruptions affect Black people specifically. Because she described how the War on Drugs is riddled with dangerous problems for everyone in Chapter 2, it heightens the impact of her discussion about how much more dangerous the war is for Black Americans. Alexander offers two stories of Black Americans whose lives were destroyed because of the War on Drugs. These stories serve three primary purposes. First, they establish an important theme of the chapter that, in the War on Drugs, “justice” is often unjust, targeting the innocent, for example, or serving excessively harsh or severe punishments. The stories also create a human context for the facts, legal decisions, and statistics Alexander presents throughout the chapter, and they give readers a hint at the lived experience of being caught in an unjust system. Finally, the stories emphasize that, beyond years lost to prison time or to a legal battle, the impact of these injustices for Black Americans can last years or entire lifetimes. These stories set the tone for the chapter.

Americans are taught that the criminal justice system is just that, a system meant to bring about justice, to punish wrongdoers fairly for the crimes they’ve committed, and protect citizens from harm. However, Alexander suggests that, when laws are applied differently for different people, the result is anything but just. Alexander challenges readers to see beyond popular narratives about policing and take a look at what might really be happening, as uncomfortable as that process might be. Americans have been taught that the Fourteenth Amendment guarantees equal treatment under the law and the Eighth Amendment bars cruel and unusual punishment. If Black and white Americans do not have the same opportunities for justice, if Black defendants are sentenced much more severely than their white counterparts, the entire system is called into question.

Alexander further explores the theme of how language can be a tool of social control in this chapter. In the absence of “old-fashioned racism, ” in which overt racist sentiments were expressed, law enforcement has plausible deniability that their actions have racial motivations. Alexander repeatedly notes throughout this chapter that the law operates in such a way that, unless an officer explicitly articulates racist ideas or admits outright to race-based motivations, courts will not acknowledge the impact of race. In the same way that the word slave was absent from the text of the Constitution and yet encoded in the Founders’ motivations and laws, the messaging and laws around the War on Drugs do not specifically name Black Americans as the enemy. Yet in practice, Black Americans are disproportionately targeted and disenfranchised. Supposedly race-neutral language about the appearance and behaviors of suspects and jurors may pose as race-neutral actions. However, Alexander presents overwhelming evidence that laws apply differently to Black Americans. The appearance of colorblindness in language and policy results in blindness to continued discrimination and injustice.

Alexander shows how difficult it has been to change the law, especially when courts look at individual behavior to assess systemic problems. In McCleskey vs. Kemp, though McCleskey proved that there was a pattern of discrimination in Georgia’s death penalty cases, the court was unmoved, requiring proof of bias from McCleskey’s prosecutor specifically. Given that colorblindness and race-neutral language are part of American culture, individual actors rarely express overt racism, which is the only type of racism the courts recognize. Alexander paints a picture of a country that has gone to great lengths to forget its racist past, congratulate itself for racial progress, and disavow a very narrow category of overt behaviors and language as racist. This country has produced a judicial system that struggles to hold itself accountable, even in the face of undeniable evidence of its discriminatory practices. As a result, there seems to be no satisfactory way to prove systemic racial bias in American courts.