An argument you may hear about why arrest rates are so high for black and latino people in the United States is that those two groups commit crimes (particularly drug crimes) at higher levels than white people. The evidence for this is the number of black and latino people incarcerated relative to white people. If white people committed more crimes relative to black and latino people, we would have a prison population that was more representative of the non-prison population. This logic however, is incorrect.
Michelle Alexander in The New Jim Crow looks at this argument directly as she examines our criminal justice system and evaluates whether we police and arrest fairly or in a way that disproportionately affects black people and other minority groups. Alexander cites evidence throughout her book to suggest that our policing habits and incarceration practices are influenced by racial attitudes and implicit bias. When you view the system through this lens, you see that the argument above becomes an excuse for racial disparities in policing and an excuse for the poor economic and social outcomes for our minority populations. In response to such faulty thinking, Alexander writes, “The former New Jersey attorney general dubbed this phenomenon the ‘circular illogic of racial profiling.’ Law enforcement officials, he explained, often point to the racial composition of our prisons and jails as justification for targeting racial minorities, but the empirical evidence actually suggested the opposite conclusion was warranted.”
Further, citing research in racial profiling, Alexander writes, “Whites were actually more likely than people of color to be carrying illegal drugs or contraband in their vehicles. In fact, in New Jersey, whites were almost twice as likely to be found with illegal drugs or contraband as African Americans, and five times as likely to be found with contraband as latinos.”
The New Jim Crow makes it clear that our prisons are over populated with black and latino individuals relative to the crime they commit (particularly drug crimes) and that this over representation is the result of years of racial bias in our country. The way we think about crime in low income neighborhoods, the way we think about drug offenses, and the way we review and evaluate criminal activity puts racial minorities at a disadvantage, and the arrest rates for black and brown people are evidence of our racial biases in policing rather than a justification for our policing and incarceration patterns.
In the 1968 Supreme Court case Terry v. Ohio, the court ruled that stop and frisk laws were constitutional on the grounds that an officer “is entitled for the protection of himself and others in the area” to search individuals for dangerous weapons that could be used against the officer. In The New Jim Crow, Michelle Alexander describes how this ruling came to be, and what it has meant for our nation and particularly black citizens in the United States. The court ruled that stop and frisk laws do not violate the fourth amendment which protects people from unreasonable searches and seizures. While not intended to have racially disparate outcomes, historically stop and frisk laws have targeted minority populations.
In 1968 Justice Douglas provided the dissenting opinion in Terry v. Ohio. He argued that the ruling lead the nation down a totalitarian path by granting unreasonable power to the police. Alexander writes that, “He objected to the notion that police should be free to conduct warrantless searches whenever they suspected someone is a criminal, believing that dispensing with the Fourth Amendment’s warrant requirement risked opening the door to the same abuses that gave rise to the American Revolution.” She continues to describe the ways in which stop and frisk rules have been used to search black and latino individuals for drugs and weapons even when those individuals showed no sign of criminal or threatening behavior.
Our nation today is struggling to understand just how much power the police should have, and just how much protection citizens should have from the police. A big challenge in the debate, which prevents people from reaching a shared conclusion, has to do with how and where our police are active. Many white people do not experience the same searches that black and latino people experience, so an increase in police power is not a threat to them, but rather a reassurance. Black and latino people, who are more likely to live in concentrated poverty and less likely to own a car, are more vulnerable to searchers from the police, and feel more threatened by increases in police power. Data suggest that white people, black people, and latino people commit crimes at about the same rates, but historical factors shaping housing policy and wealth accumulation have impacted where those crimes take place. Alexander explains that part of the reason stop and frisk rules have been so disparate in their impact on black people is because black people are more likely to commit crimes in public places compared to white people who may be committing the same crimes but from the safety of their homes or gated communities. It is important to note that the types of crimes that we are talking about being committed are low level drug offenses, such as possession, use, or distribution of a controlled substance. The data indicates that our patterns of arrests and policing are shaped by more than a response to crime. Also, where, when, and how crime is committed is influenced by many factors, such as current economic and social conditions. Our past and our decisions have shaped who is stopped, who is searched, and who is protected or disadvantaged by increases in police power. Stop and frisk may have been introduced to help protect officers and individuals from dangerous criminals, but it has instead become a tool to identify and arrest minority drug users who are not able to carry drugs in personal vehicles or use and distribute drugs from the comfort of nice homes or gated communities.
Michelle Alexander in her book, The New Jim Crow, directly addresses inconsistencies and inequities within our criminal justice system. The prison population in the United States has exploded relative to other countries, and minority racial populations have taken the brunt of our unusually high number of arrests. Alexander focuses throughout her book on the unequal levels of policing in white, black, and brown communities in the United States and the ways in which inequality has lead to policing patterns that favor white people and disadvantage black and brown people. Alexander also looks at the ways in which people with criminal backgrounds are excluded from society, and how exclusion shapes people’s behavior. She describes the ways that this then feeds back into group behaviors and creates a cycle of continually greater policing and arresting. Despite the evidence to demonstrate that our policing is out of control and unfairly targeting minority populations, our country has trouble addressing the reality of our system, and Alexander has ideas as to why.
In her book she writes, “The language of caste may well seem foreign or unfamiliar to some. Public discussions about racial caste in America are relatively rare. We avoid talking about caste in our society because we are ashamed of our racial history. We also avoid talking about race. We even avoid talking about class.” We believe that today race is not a limiting factor for individuals. White people have an idea in their mind that there are almost no racist individuals in the country. The success of many black and brown individuals in our country demonstrates that we have reached a place beyond racism, where individual effort, not race determines our success. The election of a black president and black sports figures and celebrities is a clear indication to white people that we have reached a post-racial point in society and this allows for the false view that black people bringing up race is the only thing preventing us from leaving race behind. This view however, is drawn entirely upon individuals, and neglects the way that race is shaped by institutions and larger groups. Individually we may have been able to move beyond racism, but as a larger society and within public and private institutions, we have not been able to eliminate disparate impacts for racial groups.
Policing and our prison populations demonstrate the way that we have not moved beyond racism within our institutions. Policies related to policing do not direct officers to over-police black and brown neighborhoods and do not instruct officers to arrest black and brown men at rates far higher than they arrest white men, but that is what we see happening when we look at the data describing who is arrested and where our police officers spend their time and effort. We find ways to explain the disparate outcomes that black and brown people face in our criminal justice system that have nothing to do with race, but our explanations avoid any discussion about the racial history that these groups have faced in our country’s history. For years our country allowed racial discrimination in employment, education, and housing, and these policies limited the economic mobility of racial groups while favoring and advantaging white groups. Wealth accumulation was far more challenging for black and brown people, and the effects of such discrimination have not completely gone away. Policing those who we placed in ghettos and policing those who we did not allow to grow economically is not a directly racists decision within our criminal justice system, it is just a side effect.
Alexander argues that we should have more discussion about the role that race historically played in our country so that we can better understand our current moment. She argues that we should look at race and at socioeconomic status (SES) as indicators of caste, because race, SES, and caste systems can accurately describe the inequities and realities of our system today. Our discussions avoid race and the idea of caste, but the data the supports the reality of the ideas we hide from.