The New Jim Crow: The Fourth Amendment

Within Chapter 2 of The New Jim Crow, Michelle Alexander talks about the Fourth Amendment, which warrants against unreasonable search and seizure, which is rarely mentioned today. I then realized that the problem now is that we are not told about our civil rights and liberties, which results in our loss of agency and power. This especially happens to more disenfranchised groups such as African Americans and Latinos, in addition to other racial and ethnic groups deemed “suspicious”. To those who believe that it is fair for black people to be unfairly targeted as “criminals”, is it fair for Latinos in Arizona to be stopped and checked for a green card to make sure that they’re not “illegal”? Is it justifiable for Muslim and Arab Americans to
be checked in airports to make sure that they’re not “terrorists”? All of these practices consist of the violation of the Fourth Amendment today. While in chapter 3 Alexander describes a social psychology experiment, which shows that many white people, even the ones who said that they were unbiased, perceived drug criminals to be African-American. Negative stereotypes occur with other racial groups as well. I read in an article that many Americans reply in hostility when they see a sign in Spanish, because they believe that English should be the main language, even the only language, spoken in the United States. The mild hostility towards people of color is definitely a problem. In order for the criminal justice system to change, not only do Americans have to recognize their rights, but they also have to change their perceptions of others who they view as different from them.
The Lockdown describes the structure of mass incarceration, focusing on the War on Drugs. The expanded powers and incentives of the police and the fate of the defendants that fall into the system are discussed. The arrested are typically denied meaningful legal representation, pressured into plea bargain deals and placed under extended control of the penal system, from which they have a slim chance of ever freeing themselves.
Between 1980 and 2000, the number of people imprisoned in the United States had increased more than five times per population unit, resulting in a historically unprecedented prison-building boom. The War on Drugs is the single most important culprit and the vast majority of arrests have been made for minor offenses, such as possession of small amounts of marihuana.
The vast expansion of police powers has been facilitated by the US Supreme Court, which has largely exempted the Drug War from the Fourth Amendment’s protections, the protections that up to that point had been upheld by the judiciary in a fairly stringent fashion. Justice Thurgood Marshall expressed his dismay by noticing that there is no drug exception written into the Bill of Rights, and Justice John Paul Stevens called the Supreme Court in 1991 a "loyal foot soldier in the Executive's fight against crime". Numerous other constitutionally protected civil liberties have been likewise compromised by the Supreme Court, which for example allowed forfeiture of property for unproven allegations of illegal drug activity. The new legal rules allow material self-interest (of law enforcement institutions) to interfere with law enforcement pursuits and judgment and make it relatively easy for law enforcement authorities to actively target anybody for virtually any reason they choose.
In the 1991 Florida v. Bostick case, the US Supreme Court overruled the Florida Supreme Court and gave its approval to "consent searches", in which individuals approached by the police supposedly give their consent to being searched. There may be no indication of criminal activity and people typically cooperate with police "requests" because of feeling intimidated. The validation of consent searches has allowed the police to conduct large scale sweeps in public places, involving individuals they arbitrarily choose, since no reasonable suspicion of criminal activity is required on the part of the police.
In the 1996 Ohio v.
Robinette case, the US Supreme Court overruled the Ohio Supreme Court. The Ohio court wanted to require police officers using traffic stops (motorists pulled over for alleged traffic violations) as an excuse for conducting drug searches, to tell the offenders explicitly that they are free to leave the scene if they so choose, before asking for permission for the search. The state court wished to impose a limitation on the disturbing and by that time common police practice; the US Supreme Court would have none of it. Such court rulings emboldened the police to push the limits of what they could do, without much fear of adverse legal consequences.
The federal oversight of the War on Drugs is provided by the Drug Enforcement Administration, which in close cooperation with countless many state and local law enforcement agencies provides training and federal guidelines (e.g. appearance and behavioral profiles of those considered to be promising suspects). At the core of the method used to interdict people involved with illegal drugs are (high) volume sweeps, typically involving traffic stops and consent searches, targeting in practice individuals who give no particular cause for suspicion, but belong to disfavored
groups.
Reagan Administration's announcement of the War on Drugs was initially met with some skepticism and resistance from conservative circles concerned with states' rights and from law enforcement agencies pursuing their current local priorities. The convincing took the form of a massive federal financial bribe: Huge cash grants and in 1988 the Edward Byrne Memorial State and Local Law Enforcement Assistance Grant Program resulted in the proliferation of highway and localized narcotics task forces. The Pentagon became involved in militarization of police departments by delivering to local government’s weaponry and equipment intended originally for the defense of the country. By the late 1990s, in the context of the War on Drugs, most police forces across the nation had taken advantage of the resources offered by the federal government and had added a significant military component to their operation.
The implementation of military tactics in urban centers has most often taken the form of paramilitary SWAT (Special Weapons and Tactics) units.
SWAT teams had been (rarely) utilized from the 1960s for high-profile emergencies, such as hostage situations and hijackings, and later to combat terrorism. From the 1980s many SWAT teams were formed with federal help in localities, to be used primarily and with increasing frequency for serving drug warrants on suspected drug dealers. The SWAT raids, often ruthlessly carried out in minority communities, became very common (40,000 deployments in 2001) and resulted in many unwarranted and unjustified fatalities, trauma and other damage. The transformation from community to military policing began with the passing by the Congress in 1981 of the Military Cooperation with Law Enforcement Act; the act authorized police forces of several different types to access a variety of military facilities and resources, for the purported purpose of drug interdiction. Presidents George Bush and Bill Clinton enthusiastically continued the drug policies of the Reagan administration. The size of federal disbursements to the police of a given locality was linked to the number Drug War arrests made
there.
The Congressional Comprehensive Drug Abuse Prevention and Control Act of 1970 was amended by the Comprehensive Forfeiture Act of 1984 (part of the Comprehensive Crime Control Act of 1984). The new law allowed federal law enforcement agencies to retain and use proceeds from drug operations forfeitures, while state and local police agencies were allowed to keep up to 80% of the total value of confiscated assets. The broadly interpreted federal forfeiture laws gave police departments a pecuniary interest, and therefore another powerful incentive, to aggressively wage the War on Drugs. The rules of the War (or their absence) were increasingly skewed against the suspected or accused, most of who lacked the resources to legally defend themselves or "buy their freedom". The result was a large-scale confinement of persons whose role in the drug enterprise had been marginal.
Some of the abuse that had taken place when assets were seized by the police became well-publicized and led to the passage of the Civil Asset Forfeiture Reform Act of 2000, in which the Congress addressed some of the most egregious issues, leaving however the system of financial incentives for the police intact. The political and cultural aspects of the War on Drugs were not dealt with, and as a result the system is now well-entrenched and fully institutionalized, with funding provided on all levels, from federal to local. Barack Obama stated in 2008 that reviving the Byrne grant program was "critical to creating the anti-drug task forces our communities need".
Indigent criminal defendants are most often not provided with meaningful legal representation (to which they are in theory entitled) and their cases very rarely go to trial. Threatened with severe mandatory sentences, they are, in nearly all instances, pressured into plea bargain deals, which in practice place them under permanent control of the criminal justice system. In its 2004 report the American Bar Association stated that countless poor people accused of crimes are in reality denied access to a lawyer. Minors are routinely manipulated to waive their right to counsel.
With the Congressional Anti-Drug Abuse Act of 1986, disproportionately long mandatory minimum prison terms were imposed for low-level dealing and possession of crack cocaine. State assemblies quickly joined the trend with similar harsh legislation, introducing also "three strikes" laws that mandated a life sentence for a third felony offense of any kind. The draconian mandatory penalties, entirely out of step with the practice abroad in developed countries, eliminated judicial discretion and made the prosecutors, not judges or juries, the most powerful parties in the criminal legal process. The severity of charges filed against the defendant and the plea bargain process, as well as the deals made as its outcome, are at the prosecutor's discretion. The possible disastrous consequences of choosing a trial compel many accused, who lack legal experience or judgment, to plead guilty and opt for a deal offered, regardless of whether they committed the crime or not.
The majority of the Supreme Court justices have consistently upheld the constitutionality and practice of harsh mandatory sentencing, for example in the 1991 Harmelin v. Michigan case. California's three strikes law was upheld in the 2003 Lockyer v. Andrade, where a sentence of fifty years without parole for minor theft was declared valid. According to the Court, the Eight Amendment prohibition against cruel and unusual punishment does not apply in such cases. Heavy mandatory penalties have been most often invoked in nonviolent cases, against low-level drug offenders.
The huge rise of the US prison population has been caused by the "tough on crime" laws and policies, not by increasing crime rates. Individuals labeled or branded "felons", whether actually serving jail time, or managed by the criminal justice system in other ways (as happens in the majority of cases), are, because of the myriad legally mandated restrictions and discrimination and the associated stigma, unable to reenter the mainstream society and tend to be rearrested. A violation of a parole condition is a leading case of imprisonment. The members of the marginalized felon population "undercaste" end up cycling in and out of penal confinement, sometimes for the rest of their lives.