The Illusion of Meritocracy in Policing, Part 2 | A Long Repentance Post #11 | New Humanity Institute: Sangwon Yang & Mako Nagasawa

San Francisco 49ers National Anthem Kneeling

The Purpose of A Long Repentance Blog Series

People talk about issues of race and justice in the United States as issues of ‘justice and injustice.’  Sometimes we launch into debates about ‘the proper role of government.’  But is that the original framework from which these issues were asked and debated?

The purpose of the blog post series called A Long Repentance: Exploring Christian Mistakes About Race, Politics, and Justice in the United States is to remind our readers that these issues began as Christian heresies.  They were at variance from Christian beliefs prior to colonialism.  Since Christians enacted and institutionalized what we believe to be heretical ideas, they were very destructive and harmful, then as now.  And we bear a unique responsibility for them.  As a result, we believe we must engage in a long repentance.  We must continue to resist the very heresies that we put into motion.  Thus the title of this blog series, A Long Repentance.  The journey is long and challenging.  It may be impossible to see the end.  But along the way, it is also inspiring and sometimes breathtaking.

We also encourage you to explore this booklet, A Long Repentance: A Study Guide, for further reflections and discussion questions.

In Post #2 and Post #5, we explored how white American Protestants promoted the heretical view of Genesis 1 taught by John Locke, that the productive can take land/property from the unproductive.   Setting themselves up for deep anxiety, they also maintained that the social system they set up was fair and ‘meritocratic’ – as opposed to blatantly racist.  They tended to believe that their ‘individual success’ was the result of their ‘personal hard work.’  White Americans even hid from themselves the fact that they used massive government intervention to set up a deeply unequal and racialized social system that continues to this day.  In Post #6 and Post #7, we explored the racialized housing system.  In Post #8 and Post #9, we explored the school system.  In Post #10, we started explored policing.

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But Don’t They Deserve Prison?

“I acknowledge there are problems inside specific police departments,” said Michaela.  “But something still doesn’t seem right to me about NFL players kneeling during the national anthem.  If there are problems with particular police departments, then wouldn’t it be best to call attention to those specific problems?  And at some other time?  It’s insulting to protest racial inequality during the national anthem.  Because it’s national.”[1]

“What if there are still lots of other, more general problems throughout the whole system?” Brian asked.  “Colin Kaepernick said he was protesting police brutality and people of color being oppressed, generally.[2]  Take William Barr as a counterexample.  Back when he served as Attorney General under George H.W. Bush, Barr said:

“Our system is fair and does not treat people differently.”  He then went on to defend laws that made prison sentences for crack cocaine much harsher than prison sentences for powder cocaine.”[3]

Now that William Barr is President Trump’s pick to serve again as Attorney General, the question is relevant.  He seems to not have changed his views.”[4]

“So,” said Michaela, “you think the whole policing system is unfair?”

Brian replied, “I believe large parts of the whole criminal justice system are unfair.  Look at the magnitude of the problem first.  Look at the number of people locked up in the U.S.:[5]

prison-population-by-country-comparison

“But why is that necessarily wrong?” said Michaela.  “What about the principle that if you do the crime, you serve the time?  And what about violent crime?  You named drug possession, which is non-violent, but there’s a story to violent crime, too.”

The Racial Motivations Behind the “War on Drugs”

Brian said, “But let’s first talk about drug crimes first, because it’ll introduce some important issues.  Crack cocaine was punished 100 times harder than powder cocaine:  Distributing 5 grams of crack got you 5 years minimum in federal prison, while distributing 500 grams of powder got you the same sentence.[6]  Why?  Because crack cocaine was perceived as a black drug, and powder as a white one.  Obama reduced the disparity from 100:1 to 18:1, but why is there still a disparity at all?.[7]  Drug policies in the U.S. have been used as a proxy for race a long time:

“The first anti-opium laws in the 1870s were directed at Chinese immigrants. The first anti-cocaine laws, in the South in the early 1900s, were directed at black men. The first anti-marijuana laws, in the Midwest and the Southwest in the 1910s and 20s, were directed at Mexican migrants and Mexican Americans. Today, Latino and especially black communities are still subject to wildly disproportionate drug enforcement and sentencing practices.”[8]

Politicians from the 1970’s onward used drugs and crime as a political tool again to stoke people’s fears and promise “law and order,” as part of the Republican “Southern Strategy” to turn whites with anti-black racial prejudice from the Democratic Party to the Republican Party.”[9]

“What’s the proof of that?” Michaela asked.  “I watched a video made by PragerU that said there’s no such thing as the “Southern Strategy.”[10]

“You should do an internet search for a debunking of that,” Brian replied.  “Two Republican National Committee chairs apologized for the Southern Strategy.[11]  So if it didn’t exist, someone should tell them to take their apologies back.  The Nixon campaign and administration admitted that the “War on Drugs” was a political assault designed to help Nixon win, and keep, the White House.  Kevin Philips, a Republican strategist for Nixon, said:

“The more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans. That’s where the votes are.”[12]

John Ehrlichman was domestic policy chief to Nixon.  He said:

“We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities… We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”[13]

Since then, the “War on Drugs” and “War on Crime” have been political tools.[14]  It was a rhetorical shift against LBJ’s “War on Poverty,” which got too uncomfortable for wealthy white people.  Jimmy Carter rejected Nixon’s platform.  But in the 80’s, Ronald Reagan followed in Nixon’s footsteps, and made it far worse.”

“What did Reagan do?” asked Michaela.

“In 1984, he started Operation Pipeline.  He directed the federal Drug Enforcement Agency to train state and local law enforcement agencies to use pretext traffic stops and very intimidating ‘consent-obtained’ searches for drugs.  That eroded our Fourth Amendment protection against illegal searches and seizures.  In 1986, he pushed through the Drug Reform Act and the Anti-Drug Abuse Acts, which required extremely harsh mandatory sentencing for drug offenses.

“Prior to [this Act], the longest sentence Congress had ever imposed for possession of any drug in any amount was one year… a conviction for selling a kilogram of heroin yields a mandatory ten-year sentence in U.S. federal court, compared with six months in prison in England.”[15]

That gave prosecutors enormous power to intimidate the accused into plea-bargaining, which eroded our Eighth Amendment right to be tried by a jury of our peers.  About 95% of cases end in plea deals, not jury trials.[16]  Plea bargaining makes mass incarceration possible because our trial-by-jury system would be too slow and expensive.[17]  With mandatory sentences, judges can no longer use discretion in sentencing, including considering community service, instead, if a person had enough social supports.  In 1988, Reagan requested Congress to give federal grant money and military equipment to local narcotics task forces, vastly expanding SWAT teams and militarizing the police, which led to police behavior we talked about last time.[18]. So he dangled carrots before local police so they’d carry out his “War on Drugs.”  Reagan and Bush 1 placed judges on the Supreme Court who supported police brutality,[19] who defended racial bias in sentencing[20] and in jury selection[21] and in prosecution.[22]  That eroded our Fourteenth Amendment right to be treated equally by the law.  Bill Clinton played the game of one upsmanship in the “get tough” movement, even while crime rates were falling, to win back working class white voters in the South.  He put more black men behind bars than Reagan and Bush 1, and now he regrets it.”[23]

The Racial Bias in Mass Incarceration

“Those are very serious issues,” agreed Michaela.  “And not just among liberals.  Many conservatives agree the erosion of our Fourth, Eighth, and Fourteenth Amendment rights is a big problem.  I know the prison population exploded.

sentencing-project-prison-pop-drug-offenses-1980-2015

How did this impact the black community?”

“The increase was predominantly black and brown people,” Brian replied.

incarceration-rates-by-race-1960-2010

But that’s not all.  Who do you think uses illegal drugs more:  black or white youth?”

“I would assume black,” said Michaela, “because of media portrayals.”

“White youth do,” said Brian.  “In a study of over 72,000 youth, controlling for socioeconomic background, 9% of white youth had a substance abuse disorder, or history.  Only 5% of black youth did.[24]  Hospital emergency room stats support this.[25]  And yet police arrest black youth for drug crimes at a rate ten times higher than that of whites.”[26]

“Ten times?” Michaela asked.

“It’s wildly disproportionate,” said Brian.  “Journalist Lisa Bloom, in her book Suspicion Nation, says that white assumptions about black criminality play a huge role.

“While whites can and do commit a great deal of minor and major crimes, the race as a whole is never tainted by those acts. But when blacks violate the law, all members of the race are considered suspect… The standard assumption that criminals are black and blacks are criminals is so prevalent that in one study, 60 percent of viewers who viewed a crime story with no picture of the perpetrator falsely recalled seeing one, and of those, 70 percent believed he was African-American. When we think about crime, we ‘see black,’ even when it’s not present at all.”[27]

There is a widespread implicit racial bias at work, in police, [28] prosecutors,[29] jurors,[30] witnesses,[31] and judges.[32]  Which is why implicit bias training among police officers works and is important.[33]  We see black people as “other,” and “criminal.”  But notice:  when white people recognize that the opioid crisis deeply touches the white community, they take a restorative justice approach, as opposed to a retributive justice approach which was taken against the black community.  We see it as a public health crisis, not just an individual user problem.”[34]

“I can see that,” said Michaela.  “We root for the offenders to recover.  Now you compared restorative justice and retributive justice.  I’d like to talk about that, as well, because we need to talk about violent crime.[35]  You’ve been talking about non-violent crimes like drug possession.  But when we talk about protesting the police as a whole, we have to acknowledge the crime wave that swept the country in the 1960’s, which seemed to be connected to the urban race riots before that.  We have to talk about the real dangers that police officers faced on the streets, including in black communities from the 1970’s to the 1990’s.  And we have to look at the role of race and culture.”

“Let’s do that next time,” said Brian, “as there’s a story there, too.  But for now, what do you think about this so-called “War on Drugs”?  Granted it has affected many white people, too.  But what do you think of its disproportionate impact on people of color?”

For further reflections and discussion questions, see the Study Guide.

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[1] Carrie Dann, “NBC/WSJ Poll: Majority Say Kneeling During Anthem ‘Not Appropriate’,” NBC News, August 31, 2018, https://www.nbcnews.com/politics/first-read/nbc-wsj-poll-majority-say-kneeling-during-anthem-not-appropriate-n904891 found that 54% of Americans believed kneeling was inappropriate, 43% believe it was appropriate given the reasons given; 89% of Trump voters believed kneeling was inappropriate; 76% of Clinton voters believed it was appropriate.

[2] Jacob Taylor, Anna Brand and Farnoush Amiri, “A Complete Timeline of the NFL Kneeling Controversy,” NBC News, September 4, 2018,  https://www.nbcnews.com/news/sports/take-knee-complete-guide-nfl-anthem-controversy-starting-kaepernick-s-n906241 note Colin Kaepernick sat on the bench during the San Francisco 49’ers first preseason games on August 14 and 20, 2016.  On August 28, 2016, Kaepernick explained to the media,

“I’m going to continue to stand with the people that are being oppressed. To me, this is something that has to change. When there’s significant change and I feel that flag represents what it’s supposed to represent, and this country is representing people the way it’s supposed to, I’ll stand. I have great respect for the men and women who fought for this country. I have family, I have friends that have gone and fought for this country. And they fight for freedom, they fight for the people, they fight for liberty and justice, for everyone. That’s not happening.”

[3] German Lopez, “William Barr Helped Establish Mass Incarceration. Now Trump Wants Him as Attorney General.” Vox, December 7, 2018, https://www.vox.com/policy-and-politics/2018/12/7/18129487/william-barr-trump-attorney-general-criminal-justice-reform

[4] When Jeff Sessions resigned from being Trump’s AG, Barr wrote an article for the Washington Post along with two other former AG’s praising Sessions for being “tough on crime.”  See William P. Barr, Edwin Meese III and Michael B. Mukasey, “We Are Former Attorneys General. We Salute Jeff Sessions.” Washington Post, November 7, 2018, https://www.washingtonpost.com/opinions/jeff-sessions-can-look-back-on-a-job-well-done/2018/11/07/527e5830-e2cf-11e8-8f5f-a55347f48762_story.html.  They write:

“He reinstituted the charging practices that had been used against drug dealers before 2008. He leveraged the power of big data to locate those who were stealing taxpayer dollars and flooding the streets with opioids and other painkillers.

During his tenure, the Justice Department broke several long-standing law enforcement records. In 2017, the department prosecuted the highest number of violent offenders since 1991, when it started to track that category of prosecutions during the time that one of us (William P. Barr) was attorney general. Then, in 2018, the department broke the record again, prosecuting more violent crime defendants than ever by a 15 percent margin.

In 2017, the department prosecuted the most firearm defendants in 10 years, since another of us (Michael B. Mukasey) was attorney general, and in 2018 prosecuted the most firearm defendants ever, surpassing the prior mark by 17 percent.”

[5] The following chart was also cited by Michael B. Kelley, “13 Signs That America’s Prison System Is Out Of Control,” Business Insider, April 12, 2012, https://www.businessinsider.com/americas-prison-system-is-out-of-control-2012-4,

[6] Deborah Vagins and Jesselyn McCurdy, “Cracks in the System: Twenty Years of the Unjust Federal Crack Cocaine Law,” American Civil Liberties Union, 2006, https://www.aclu.org/other/cracks-system-20-years-unjust-federal-crack-cocaine-law

[7] ACLU, “Fair Sentencing Act, https://www.aclu.org/issues/criminal-law-reform/drug-law-reform/fair-sentencing-act, writes, “The FSA was a step toward fairness, but the 18:1 ratio was a compromise and it still reflects outdated and discredited assumptions about crack cocaine. Because crack and powder cocaine are two forms of the same drug, there should not be any disparity in sentencing between crack and powder cocaine offenses – the only truly fair ratio is 1:1.”  Also, Elizabeth Kulze, “How Crack Vs. Coke Sentencing Unfairly Targets Poor People,” Vocativ, February 22, 2015, https://www.vocativ.com/underworld/drugs/crack-vs-coke-sentencing/index.html points out that 12% of adults report using powder cocaine vs. 4% of adults report using crack.  See also Joseph J.Palamar, Shelby Davies, Danielle C.Ompad, Charles M.Cleland, and Michael Weitzmand, “Powder Cocaine and Crack Use in the United States: An Examination of Risk for Arrest and Socioeconomic Disparities in Use,” Drug and Alcohol Dependence, Volume 149, April 1, 2015, p.108 – 116, https://www.sciencedirect.com/science/article/pii/S0376871615000496.

[8] Drug Policy Alliance, “A Brief History of the Drug War,” http://www.drugpolicy.org/new-solutions-drug-policy/brief-history-drug-war.  See also Michelle Alexander, The New Jim Crow: Mass Incarceration in an Age of Colorblindness (New York, NY: The New Press, 2011).  See also Fareed Zakaria, “Incarceration Nation: The War on Drugs Has Succeeded Only in Putting Millions of Americans in Jail,” Time, April 2, 2012; http://content.time.com/time/magazine/article/0,9171,2109777,00.html.

[9] James Boyd, ‘Nixon’s Southern Strategy: ‘It’s All in the Charts’,’ New York Times, May 17, 1970;
http://www.nytimes.com/packages/html/books/phillips-southern.pdf says,

‘The Grand Old Party still lay buried under the debris of the latest Democratic landslide – 1964 – when a young, self-taught ethnologist named Kevin Phillips emerged from his charts and maps to avow to skeptical hearers that just around the corner was an inevitable cycle of Republican dominance that would begin in the late nineteen-sixties and prosper until the advent of the 21st century. To the pure of heart it all sounded spooky and a bit repugnant because it was premised on the alleged hostility of Irishmen, Italians and Poles, whose ethnic traits were conservative, toward Jews, Negroes and affluent Yankees, who history had made liberal. There were more of the former and they were ineluctably trending Republicans…Phillips had grown up in the Bronx. His observations of life had convinced him that all the talk about melting-pot America was buncombe. Most voters, he had found, still voted on the basis of ethnic or cultural enmities that could be graphed, predicted and exploited… Irish, Italian and Eastern European [communities now felt] resentment of the new immigrants – Negroes and Latinos – and against the national Democratic party, whose Great Society programs increasingly seemed to reflect favoritism for the new minorities over the old.’

[10] PragerU, “Why Did the Democratic South Become Republican?” July 24, 2017, https://www.youtube.com/watch?v=UiprVX4os2Y

[11] John Rondy, “GOP Ignored Black Vote, Chairman Says: RNC Head Apologizes at NAACP Meeting,” Boston.com/Reuters, July 15, 2005, http://archive.boston.com/news/nation/articles/2005/07/15/gop_ignored_black_vote_chairman_says/ discusses Ken Mehman’s apology to the NAACP.  Tommy Christopher, “RNC Chair Michael Steele Confesses to Race-Based Southern Strategy,” Mediaite, April 23, 2010, https://www.mediaite.com/tv/rnc-chair-michael-steele-confesses-to-race-based-southern-strategy/ discusses Michael Steele’s apology to DePaul college students

[12] Michelle Alexander, The New Jim Crow, p.44

[13] Tom LoBianco, “Report: Aide Says Nixon’s War on Drugs Targeted Blacks, Hippies,” CNN, March 24, 2016;
http://www.cnn.com/2016/03/23/politics/john-ehrlichman-richard-nixon-drug-war-blacks-hippie/index.html

[14] E.g. George H.W. Bush turned his losing campaign around against Michael Dukakis on a ‘get tough on crime’ platform. He criticized Dukakis (while governor of Massachusetts) for letting out Willie Horton, a violent African-American offender who reoffended. Bush’s campaign strategist Lee Atwater, on his deathbed, regretted doing that “for its naked cruelty.”  See Gaius Publius, ‘Lee Atwater’s Infamous “N-word, N-word” Interview,’ America Blog, November 8, 2012; http://americablog.com/2012/11/audio-of-infamous-lee-atwater-interview-its-a-matter-of-how-abstract-you-handle-the-race-thing.html,

[15] Michelle Alexander, p.90.  The Anti-Drug Abuse Acts established extremely long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine.  Prosecutors promised to bring lesser charges in exchange for people pleading guilty to lesser offenses, cooperating with law enforcement, and snitching.

[16] Eli Hager and Bill Keller, “Everything You Think You Know About Mass Incarceration Is Wrong,” The Marshall Project, February 9, 2017, https://www.themarshallproject.org/2017/02/09/everything-you-think-you-know-about-mass-incarceration-is-wrong#.oOf3zyCr4 says,

“Reformers have overlooked the role of prosecutors, Pfaff reasons, in part because there is no good data on how they use their discretion, and in part because they are simply less visible; about 95 percent of cases end in plea bargains worked out behind closed doors. “We see the police every day; no one is more high-profile in the criminal justice system,” he said in an interview. “Then we think of the judge imposing the sentence.” But prosecutors, and how they work, remain something of a mystery.”

[17] Michelle Alexander, “Go to Trial: Crash the Justice System,” New York Times, March 10, 2012, https://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html writes,

“The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

[18] See Sangwon Yang and Mako A. Nagasawa, The Illusion of Meritocracy in Policing, Part 1, December 3, 2018, https://newhumanityinstitute.wordpress.com/2018/12/03/the-illusion-of-meritocracy-in-policing-part-1-a-long-repentance-post-10-new-humanity-institute-sangwon-yang-mako-nagasawa/

[19] City of Los Angeles v. Adolph Lyons (1983) was decided 5 – 4.  White (Kennedy), Burger (Nixon), Powell (Nixon), Rehnquist (Reagan), O’Connor (Reagan) were in favor of the City of Los Angeles.  Lyons, an African-American man, was very roughly treated by white LAPD officers, placed in a chokehold, and forced unconscious. SCOTUS decides he did not have the standing to challenge LAPD practice. Justice Thurgood Marshall dissented, citing chokeholds as potentially lethal – of the 16 chokehold victims who were killed by the LAPD in less than a decade, 12 were black – and officers’ training being insufficient.  Dave Gilson, “Thurgood Marshall Blasted Police for Killing Black Men With Chokeholds,” Mother Jones, December 4, 2014 writes of Thurgood Marshall’s dissent:

“The officers are taught to maintain the chokehold until the suspect goes limp, despite substantial evidence that the application of a chokehold invariably induces a “flight or flee” syndrome, producing an involuntary struggle by the victim which can easily be misinterpreted by the officer as willful resistance that must be overcome by prolonging the chokehold and increasing the force applied. In addition, officers are instructed that the chokeholds can be safely deployed for up to three or four minutes. Robert Jarvis, the city’s expert who has taught at the Los Angeles Police Academy for the past 12 years, admitted that officers are never told that the bar-arm control can cause death if applied for just two seconds. Of the nine deaths for which evidence was submitted to the District Court, the average duration of the choke where specified was approximately 40 seconds.”  Recall Eric Garner.

[20] McCleskey v. Kemp (1987) was decided 5 – 4.  Powell (Nixon), White (Kennedy), Rehnquist (Reagan), O’Connor (Reagan), Scalia (Reagan) were in favor of Kemp.  Warren McKlesky, a black man, had killed a white police officer during an armed robbery in Georgia. His team appealed the death sentence on the grounds that death sentencing was too racially biased to be fair, and thus it violated the Eighth and Fourteenth Amendments. The Court accepted the statistical study about racially different outcomes as factual and true. But it ruled that unless the prosecutor had consciously and explicitly called for the death sentence for racial reasons, that the case was invalid. The Court’s 5:4 majority opinion wrote, ‘[I]f we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.’  Justice Brennan, writing his dissent, pointed out that the Court’s decision ‘seems to suggest a fear of too much justice.’ (McCleskey v. Kemp, 481 U.S. 279, 327 (1989), Brennan, J., dissenting).  McCleskey was named one of the worst Supreme Court decisions since World War II by a Los Angeles Times survey among legal scholars (David Savage, “Roe vs. Wade? Bush vs. Gore? What are the worst Supreme Court decisions?”, Los Angeles Times, October 23, 2008).  Anthony Lewis, “Abroad at Home: Bowing to Racism”, New York Times, April 28, 1987, charged that the Supreme Court had “effectively condoned the expression of racism in a profound aspect of our law.”  Adam Liptak, “New Look at Death Sentences and Race,” New York Times, April 29, 2008 notes that Anthony G. Amsterdam, a law professor at New York University, said in speech at Columbia, “McCleskey is the Dred Scott decision of our time.”  Michelle Alexander, The New Jim Crow, p.114 says as evidence of the impact of McCleskey, consider the Georgia Supreme Court decision in 1995:

‘[The Court held] that 98.4 percent of the defendants selected to receive life sentences for repeat drug offenses were black required no justification… To date, not a single successful challenge has ever been made to racial bias sentencing…’

[21] Purkett v. Elem (1995) was decided 7 – 2.  Rehnquist (Reagan), O’Connor (Reagan), Scalia (Reagan), Thomas (Bush 1), Souter (Bush 1), Ginsburg (Clinton).  About 30% of black men are already ineligible for jury service for life because of the legal status attributed to their criminal background. And in many previous cases, the Supreme Court had already upheld convictions of black defendants by all-white juries in situations where the exclusion of black jurors was obvious. But Purkett went a step further. The prosecution used ‘jury shuffling’ to reduce the number of black jurors, and used different questions of juror candidates based on race. But as long as race was never explicitly stated, the Court upheld whatever reason the prosecutors gave for not selecting a particular juror. In Purkett, the prosecutor used the following explanation for why he struck black jurors from being empaneled:

‘I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared not to be a good juror for that fact… Also, he had a mustache and a goatee type beard. And juror number twenty-four also had a mustache and goatee beard… And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustache and the beards look suspicious to me.’

See Michelle Alexander, p.122, citing Purkett v. Elem, 514 U.S. 765, 771 n.4 (1995) Stevens, J., dissenting and quoting prosecutor

[22] Armstrong v. United States (1996) was decided 8 – 1.  Rehnquist (Reagan), O’Connor (Reagan), Scalia (Reagan), Thomas (Bush 1), Souter (Bush 1), Breyer (Carter), Ginsburg (Clinton).  Christopher Lee Armstrong was arrested for possession of and conspiracy to distribute fifty grams of crack cocaine. His federal public defenders were troubled that in the last 3 years, 48 defendants had been black, 5 were Hispanic, and none were white.  Given that most crack offenders were still white, they were puzzled.  They suspected that whites were being diverted by federal prosecutors to the state system, where penalties for crack cocaine were far less severe. Armstrong’s lawyers filed a motion asking the prosecutors to turn over their files to support their claim of selective prosecution, under the Fourteenth Amendment.  Michelle Alexander, p.117 writes,

‘As in McCleskey, the Court did not question the accuracy of the evidence submitted, but ruled that because Armstrong failed to identify any similarly situated white defendants who should have been charged in federal court but were not, he was not entitled even to discovery on his selective-prosecution claim. With no trace of irony, the Court demanded that Armstrong produce in advance the very thing he sought in discovery: information regarding white defendants who should have been charged in federal court… The Court justified this insurmountable hurdle on the grounds that considerable deference is owed the exercise of prosecutorial discretion. Unless evidence of conscious, intentional bias on the part of the prosecutor could be produced, the Court would not allow any inquiry into the reasons for or causes of apparent racial disparities in prosecutorial decision making.’

[23] Jesse Byrnes, Clinton: “I Signed a Bill That Made the Problem Worse, and I Want to Admit It,” The Hill, July 16, 2015, https://thehill.com/blogs/blog-briefing-room/news/248160-clinton-i-signed-a-bill-that-made-the-problem-worse-and-i-want.  See also Ed Pilkington, ‘Bill Clinton: Mass Incarceration on My Watch Put Too Many People in Prison,’ The Guardian, April 28, 2015; http://www.theguardian.com/us-news/2015/apr/28/bill-clinton-calls-for-end-mass-incarceration, says:

“[Clinton] created incentives to individual states to build more prisons, to put more people behind bars and to keep them there for longer. [He] presided over the introduction of a federal three strikes law that brought in long sentences for habitual offenders. [Also,] states which sentenced people to long terms in prison with no chance of parole were rewarded with increased federal funds. [And] federal money was provided to states to allow them vastly to increase the number of police officers on the streets – in turn generating more arrests and more convictions.’  ‘Bill Clinton said Wednesday that the crime bill he signed into law as President in 1994 worsened the nation’s criminal justice system by increasing prison sentences… He added: ‘The good news is we had the biggest drop in crime in history. The bad news is we had a lot people who were locked up, who were minor actors, for way too long.’”

[24] Maia Szalavitz, “Study: Whites More Likely to Abuse Drugs Than Blacks,” Time, November 7, 2011, http://healthland.time.com/2011/11/07/study-whites-more-likely-to-abuse-drugs-than-blacks/. See also Van Jones, “ARE Blacks a Criminal Race? Surprising Statistics,” Huffington Post, October 5, 2005 updated December 6, 2017; https://www.huffingtonpost.com/van-jones/are-blacks-a-criminal-rac_b_8398.html for a good bibliography of studies

[25] National Institutes of Health Division of Epidemiology and Prevention Research, Drug Use Among Racial/Ethnic Minorities, 1995 https://www.ssc.wisc.edu/~oliver/RACIAL/Reports/NIHMinoritydrugUse%20report.pdf, p.91 – 94 has data on 1988 – 1994

[26] Maia Szalavitz; see above

[27] Lisa Bloom, Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It (Berkeley, CA: Counterpoint, 2014).  See also Charles M. Blow, “Crime, Bias, and Statistics,” New York Times, September 7, 2014, https://www.nytimes.com/2014/09/08/opinion/charles-blow-crime-bias-and-statistics.html, citing The Sentencing Project, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies, 2014, https://www.sentencingproject.org/wp-content/uploads/2015/11/Race-and-Punishment.pdf. See also Katheryn Russell-Brown, The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Macroaggressions, 2nd edition (New York: NYU Press, 2008); also supported by Ted Chiricos, Kelly Welch, Marc Gertz, “Racial Typification of Crime and Support for Punitive Measures,” Criminology, Volume 42, Number 2, 2004; http://www.uakron.edu/centers/conflict/docs/Chiricos.pdf;

‘This paper assesses whether support for harsh punitive policies towards crime is related to the racial typification of crime for a national random sample of households (N=885), surveyed in 2002. Results from OLS regression show that the racial typification of crime is a significant predictor of punitiveness, independent of the influence of racial prejudice, conservatism, crime salience, southern residence and other factors. This relationship is shown to be concentrated among whites who are either less prejudiced, not southern, conservative and for whom crime salience is low. The results broaden our understanding of the links between racial threat and social control, beyond those typically associated with racial composition of place. They also resonate important themes in what some have termed modern racism and what others have described as the politics of exclusion.’

[28] A formal study done by psychologists shows that good training of police officers does reduce bias: American Psychological Association, “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot,” Journal of Personality and Social Psychology, 2007, Vol.92, No.6; http://www.apa.org/pubs/journals/releases/psp-9261006.pdf.  See also Al Baker, “Confronting Implicit Bias in the New York Police Department,” New York Times, July 15, 2018, https://www.nytimes.com/2018/07/15/nyregion/bias-training-police.html; and German Lopez, “How Systematic Racism Entangles All Police Officers – Even Black Cops,” Vox, May 7, 2015; http://www.vox.com/2015/5/7/8562077/police-racism-implicit-bias; and Chris Mooney, “The Science of Why Cops Shoot Young Black Men,” Mother Jones, Dec 1, 2014;
http://www.motherjones.com/politics/2014/11/science-of-racism-prejudice.

[29] See Equal Justice Initiative, “Research Finds Evidence of Racial Bias in Plea Deals,” Equal Justice Initiative, October 26, 2017, https://eji.org/news/research-finds-racial-disparities-in-plea-deals.

“Analyzing more than 30,000 Wisconsin cases over a seven-year period, the study found significant racial disparities in the plea-bargaining process. White defendants were 25 percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge; black defendants were more likely than whites to be convicted of their highest initial charge. As a result, white defendants who faced initial felony charges were approximately 15 percent more likely than similar black defendants to be convicted of a misdemeanor instead. White defendants with no prior convictions were over 25 percent more likely than black defendants with no prior convictions to receive a charge reduction.

The disparities were even greater in misdemeanor cases. White people facing misdemeanor charges were nearly 75 percent more likely than black people to have all charges carrying potential imprisonment dropped, dismissed, or reduced to lesser charges. White defendants charged with misdemeanors who had no prior criminal history were 46 percent more likely than similar black defendants to have all charges carrying a potential sentence dropped or reduced to charges that carry no potential imprisonment.”

See Nicole Gonzalez Van Cleve, “Commentary: Anita’s Army: Rank and File Racism in the Power to Prosecute,” NBC News, November 27, 2015, https://www.nbcnews.com/news/nbcblk/commentary-anitas-army-rank-file-racism-power-prosecute-n469731 writes,

“Professor Paul Butler of Georgetown Law, argues that prosecutors spend significant efforts fighting in favor of police power. Prosecutors are the driving force behind the Supreme Court’s approval of racial profiling, camera surveillance, police lying to suspects, and pretextual stops. However, this ideological common ground should not be mistaken as a partnership of equals.

Prosecutors are dependent upon police officers as their witnesses. Police testimony is crucial to winning trials and hence, earning promotions within the prosecutor’s office. With such co-dependency, prosecutors describe a system of interdependence between prosecutors and police governed harshly by a code of silence and fear. To question an officer is a sign of disrespect. To interview police partners separately to ensure that their stories are consistent was seen as poor form rather than good business.

For attorneys who questioned the word of an officer or the legitimacy of a report, they could find themselves with tarnished reputations, being gossiped as too sympathetic to defendants (an accusation that was nearly the equivalent of being called a mope or nigger-lover), and being the targets of tacit resistance from officers. This is the institutional equivalent of New York Officers literally turning their backs at Mayor Bill de Blasio in protest when he publicly condemned the use of force that killed Eric Garner on the streets of Staten Island.

Imagine the cost of police officers turning their backs on a prosecutor on a daily basis. Perhaps all officers on their cases started “forgetting” their appearance dates. In fact, as a young clerk, it did not take much time for me to observe how police officers could tarnish reputations in this court community, even a judge’s.”

See also Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court (Stanford: Stanford University Press, 2016).  Of Van Cleve’s work, L. Song Richardson, “Systemic Triage: Implicit Racial Bias in the Criminal Courtroom,” Yale Law Journal, Vol.126, Number 3, January 2017, https://www.yalelawjournal.org/article/systemic-triage-implicit-racial-bias-in-the-criminal-courtroom, writes,

“She exposes the deeply flawed operation of the criminal justice system by focusing on how felonies are processed in Cook County, Illinois. Her disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States, is based upon 104 in-depth interviews with judges, prosecutors, public defenders, and private attorneys; her own experiences clerking for both the Cook County District Attorney’s Office and the Cook County Public Defender’s Office; and one thousand hours of felony courtroom observations conducted by 130 court watchers. This mix of perspectives, all of which focus on the court professionals “whose actions define the experience and appearance of justice,” provides a chilling account of how racialized justice is practiced in the Cook County criminal justice system, despite the existence of due process protections and a court record. By “turn[ing] the lens on those in power as they do the marginalizing,” Van Cleve reveals how judges, defense lawyers, and prosecutors transform race-neutral due process protections into the tools of racial punishment. An important theme of Van Cleve’s book is that the racism practiced in the Cook County courts is not “more enigmatic than the overt racism of the past.” Rather, it is equally “pervasive, direct, and violent.”

Richardson argues, however, that the problem is even worse:

“However, I argue that the problem of racial bias is not so limited. Rather, research from the past several decades reveals that implicit racial biases can influence the behaviors and judgments of even the most consciously egalitarian individuals in ways of which they are unaware and thus unable to control. Additionally, the effects of implicit biases may not be open and obvious. Importantly, then, the absence of discernible racism does not signal the absence of racial bias.”

See also John D. Levenson and Robert J. Smith, Implicit Racial Bias Across the Law (Cambridge: Cambridge University Press, 2012).  See also Robert J. Smith and John D. Levenson, “The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion,” Seattle University Law Review 795 (2011 – 2012), p.795ff. available at https://heinonline.org/HOL/LandingPage?handle=hein.journals/sealr35&div=30&id=&page=.  Positively, Leon Neyfakh, “Top Police and Prosecutors Condemn Mass Incarceration,” Salon, October 23, 2015, https://slate.com/news-and-politics/2015/10/police-and-prosecutors-condemning-mass-incarceration-ignore-their-own-role-in-the-problem.html notes,

“The fact is that if the heads of law enforcement agencies are serious about reducing the incarceration rate, there’s a lot they can do on their own to help make that happen. Just look at what Attorney General Eric Holder did in 2013, when he issued a memo calling on the nation’s federal prosecutors to avoid triggering mandatory minimums for non-violent drug offenders who don’t have ties to gangs or organized crime. That policy change, which required no buy-in from legislators, had an immediate effect, resulting in a 20 percent drop in the number of federal drug cases that carried a mandatory minimum.”

[30] Tara L. Mitchell et al., “Racial Bias in Mock Juror Decision-Making: A Meta-Analytic Review of Defendant Treatment,” Law and Human Behavior, 29, (2005), p.621, 627-28, 630 find,

“Specifically, one meta-analysis of 16 mock-juror studies (a) found that mock jurors were likely to “render longer sentences for other-race defendants,” (b) found that racial bias in these mock-juror studies was “more pronounced… for Black participants; when community members were participants; and in published studies,” but (c) concluded that racial bias in mock juror verdicts “decrease[d] when ecologically relevant procedures [were] used.”

Cited and discussed by Jennifer K. Elek & Paula Hannaford-Agor, “Implicit Bias and the American Juror,” National Center for State Courts, 2015, http://www.ncsc-jurystudies.org/~/media/Microsites/Files/CJS/What%20We%20Do/Elek%20%20Hannaford-Agor%202015%20-%20Implicit%20bias%20and%20the%20American%20juror.ashx

[31] Consider the quotation from Lisa Bloom, Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It (Berkeley, CA: Counterpoint, 2014) above

[32] Judge Mark W. Bennett, “Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions,” Harvard Law & Policy Review, Volume 4, 2010, https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2011/eeo/057.authcheckdam.pdf discusses the issue of implicit bias as relevant for juries but also judges.  For example, on p.161 – 162, he writes:

“Moreover, the Batson challenge process may allow the implicit biases of the judges and attorneys to go unchecked during jury selection. Thus, while judge-dominated voir dire may result in implicitly bi ased jurors deciding cases, the Batson challenge process may result in implicitly biased courtroom actors selecting jurors.”

[33] American Psychological Association, “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot,” Journal of Personality and Social Psychology, 2007, Vol.92, No.6; http://www.apa.org/pubs/journals/releases/psp-9261006.pdf and Al Baker, “Confronting Implicit Bias in the New York Police Department,” New York Times, July 15, 2018, https://www.nytimes.com/2018/07/15/nyregion/bias-training-police.html

[34] Katherine Q. Seelye, “In Heroin Crisis, White Families Seek Gentler War on Drugs,” New York Times, October 30, 2015; https://www.nytimes.com/2015/10/31/us/heroin-war-on-drugs-parents.html

[35] Eli Hager and Bill Keller, “Everything You Think You Know About Mass Incarceration Is Wrong,” The Marshall Project, February 9, 2017, https://www.themarshallproject.org/2017/02/09/everything-you-think-you-know-about-mass-incarceration-is-wrong#.oOf3zyCr4 gives a very helpful analysis of violent vs. non-violent crime, federal vs. state prison populations, and the role of the prosecutor.  We will discuss this in the next post.

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