The New Jim Crow: Mass Incarceration in the Age of Colorblindness

by Michelle Alexander

  Even in small towns, such as those in Dodge County, Wisconsin, SWAT teams treat routine searches for narcotics as a major battlefront in the drug war. In Dodge County, police raided the mobile home of Scott Bryant in April 1995, after finding traces of marijuana in his garbage. Moments after busting into the mobile home, police shot Bryant—who was unarmed—killing him. Bryant’s eight-year-old son was asleep in the next room and watched his father die while waiting for an ambulance. The district attorney theorized that the shooter’s hand had clenched in “sympathetic physical reaction” as his other hand reached for handcuffs. A spokesman for the Beretta company called this unlikely because the gun’s double-action trigger was designed to prevent unintentional firing. The Dodge County sheriff compared the shooting to a hunting accident.44

  SWAT raids have not been limited to homes, apartment buildings, or public housing projects. Public high schools have been invaded by SWAT teams in search of drugs. In November 2003, for example, police raided Stratford High School in Goose Creek, South Carolina. The raid was recorded by the school’s surveillance cameras as well as a police camera. The tapes show students as young as fourteen forced to the ground in handcuffs as officers in SWAT team uniforms and bulletproof vests aim guns at their heads and lead a drug-sniffing dog to tear through their book bags. The raid was initiated by the school’s principal, who was suspicious that a single student might be dealing marijuana. No drugs or weapons were found during the raid and no charges were filed. Nearly all of the students searched and seized were students of color.

  The transformation from “community policing” to “military policing,” began in 1981, when President Reagan persuaded Congress to pass the Military Cooperation with Law Enforcement Act, which encouraged the military to give local, state, and federal police access to military bases, intelligence, research, weaponry, and other equipment for drug interdiction. That legislation carved a huge exception to the Posse Comitatus Act, the Civil War-era law prohibiting the use of the military for civilian policing. It was followed by Reagan’s National Security Decision Directive, which declared drugs a threat to U.S. national security, and provided for yet more cooperation between local, state, and federal law enforcement. In the years that followed, Presidents George Bush and Bill Clinton enthusiastically embraced the drug war and increased the transfer of military equipment, technology, and training to local law enforcement, contingent, of course, on the willingness of agencies to prioritize drug-law enforcement and concentrate resources on arrests for illegal drugs.

  The incentives program worked. Drug arrests skyrocketed, as SWAT teams swept through urban housing projects, highway patrol agencies organized drug interdiction units on the freeways, and stop-and-frisk programs were set loose on the streets. Generally, the financial incentives offered to local law enforcement to pump up their drug arrests have not been well publicized, leading the average person to conclude reasonably (but mistakenly) that when their local police departments report that drug arrests have doubled or tripled in a short period of time, the arrests reflect a surge in illegal drug activity, rather than an infusion of money and an intensified enforcement effort.

  One exception is a 2001 report by the Capital Times in Madison, Wisconsin. The Times reported that as of 2001, sixty-five of the state’s eighty-three local SWAT teams had come into being since 1980, and that the explosion of SWAT teams was traceable to the Pentagon’s weaponry giveaway program, as well as to federal programs that provide money to local police departments for drug control. The paper explained that, in the 1990s, Wisconsin police departments were given nearly a hundred thousand pieces of military equipment. And although the paramilitary units were often justified to city councils and skeptical citizens as essential to fight terrorism or deal with hostage situations, they were rarely deployed for those reasons but instead were sent to serve routine search warrants for drugs and make drug arrests. In fact, the Times reported that police departments had an extraordinary incentive to use their new equipment for drug enforcement: the extra federal funding the local police departments received was tied to antidrug policing. The size of the disbursements was linked to the number of city or county drug arrests. Each arrest, in theory, would net a given city or county about $153 in state and federal funding. Non-drug-related policing brought no federal dollars, even for violent crime. As a result, when Jackson County, Wisconsin, quadrupled its drug arrests between 1999 and 2000, the county’s federal subsidy quadrupled too.45

  Finders Keepers

  As if the free military equipment, training, and cash grants were not enough, the Reagan administration provided law enforcement with yet another financial incentive to devote extraordinary resources to drug law enforcement, rather than more serious crimes: state and local law enforcement agencies were granted the authority to keep, for their own use, the vast majority of cash and assets they seize when waging the drug war. This dramatic change in policy gave state and local police an enormous stake in the War on Drugs—not in its success, but in its perpetual existence. Law enforcement gained a pecuniary interest not only in the forfeited property, but in the profitability of the drug market itself.

  Modern drug forfeiture laws date back to 1970, when Congress passed the Comprehensive Drug Abuse Prevention and Control Act. The Act included a civil forfeiture provision authorizing the government to seize and forfeit drugs, drug manufacturing and storage equipment, and conveyances used to transport drugs. As legal scholars Eric Blumenson and Eva Nilsen have explained, the provision was justified as an effort “to forestall the spread of drugs in a way criminal penalties could not—by striking at its economic roots.”46 When a drug dealer is sent to jail, there are many others ready and willing to take his place, but seizing the means of production, some legislators reasoned, may shut down the trafficking business for good. Over the years, the list of properties subject to forfeiture expanded greatly, and the required connection to illegal drug activity became increasingly remote, leading to many instances of abuse. But it was not until 1984, when Congress amended the federal law to allow federal law enforcement agencies to retain and use any and all proceeds from asset forfeitures, and to allow state and local police agencies to retain up to 80 percent of the assets’ value, that a true revolution occurred.

  Suddenly, police departments were capable of increasing the size of their budgets, quite substantially, simply by taking the cash, cars, and homes of people suspected of drug use or sales. At the time the new rules were adopted, the law governing civil forfeiture was so heavily weighted in favor of the government that fully 80 percent of forfeitures went uncontested. Property or cash could be seized based on mere suspicion of illegal drug activity, and the seizure could occur without notice or hearing, upon an ex parte showing of mere probable cause to believe that the property had somehow been “involved” in a crime. The probable cause showing could be based on nothing more than hearsay, innuendo, or even the paid, self-serving testimony of someone with interests clearly adverse to the property owner. Neither the owner of the property nor anyone else need be charged with a crime, much less found guilty of one. Indeed, a person could be found innocent of any criminal conduct and the property could still be subject to forfeiture. Once the property was seized, the owner had no right of counsel, and the burden was placed on him to prove the property’s “innocence.” Because those who were targeted were typically poor or of moderate means, they often lacked the resources to hire an attorney or pay the considerable court costs. As a result, most people who had their cash or property seized did not challenge the government’s action, especially because the government could retaliate by filing criminal charges—baseless or not.

  Not surprisingly, this drug forfeiture regime proved highly lucrative for law enforcement, offering more than enough incentive to wage the War on Drugs. According to a report commissioned by the Department of Justice, between 1988 and 1992 alone, Byrne-funded drug task forces seized over $1 billion in assets.47 Remarkably, this figure does not include drug task forc
es funded by the DEA or other federal agencies.

  The actual operation of drug forfeiture laws seriously undermines the usual rhetoric offered in support of the War on Drugs, namely that it is the big “kingpins” that are the target of the war. Drug-war forfeiture laws are frequently used to allow those with assets to buy their freedom, while drug users and small-time dealers with few assets to trade are subjected to lengthy prison terms. In Massachusetts, for example, an investigation by journalists found that on average a “payment of $50,000 in drug profits won a 6.3 year reduction in a sentence for dealers,” while agreements of $10,000 or more bought elimination or reduction of trafficking charges in almost three-fourths of such cases.48 Federal drug forfeiture laws are one reason, Blumenson and Nielsen note, “why state and federal prisons now confine large numbers of men and women who had relatively minor roles in drug distribution networks, but few of their bosses.”49

  The Shakedown

  Quite predictably, the enormous economic rewards created by both the drug-war forfeiture and Byrne-grant laws has created an environment in which a very fine line exists between the lawful and the unlawful taking of other people’s money and property—a line so thin that some officers disregard the formalities of search warrants, probable cause, and reasonable suspicion altogether. In United States v. Reese, for example, the Ninth Circuit Court of Appeals described a drug task force completely corrupted by its dependence on federal drug money. Operating as a separate unit within the Oakland Housing Authority, the task force behaved, in the words of one officer, “more or less like a wolfpack,” driving up in police vehicles and taking “anything and everything we saw on the street corner.”50 The officers were under tremendous pressure from their commander to keep their arrest numbers up, and all of the officers were aware that their jobs depended on the renewal of a federal grant. The task force commander emphasized that they would need statistics to show that the grant money was well spent and sent the task force out to begin a shift with comments like, “Let’s go out and kick ass,” and “Everybody goes to jail tonight for everything, right?”51

  Journalists and investigators have documented numerous other instances in which police departments have engaged in illegal shakedowns, searches, and threats in search of forfeitable property and cash. In Florida, reporters reviewed nearly one thousand videotapes of highway traffic stops and found that police had used traffic violations as an excuse—or pretext—to confiscate “tens of thousands of dollars from motorists against whom there [was] no evidence of wrongdoing,” frequently taking the money without filing any criminal charges.52 Similarly, in Louisiana, journalists reported that Louisiana police engaged in massive pretextual stops in an effort to seize cash, with the money diverted to police department ski trips and other unauthorized uses.53 And in Southern California, a Los Angeles Sheriff’s Department employee reported that deputies routinely planted drugs and falsified police reports to establish probable cause for cash seizures.54

  Lots of small seizures can be nearly as profitable, and require the expenditure of fewer investigative resources, than a few large busts. The Western Area Narcotics Task Force (WANT) became the focus of a major investigation in 1996 when almost $66,000 was discovered hidden in its headquarters. The investigation revealed that the task force seized large amounts of money, but also small amounts, and then dispensed it freely, unconstrained by reporting requirements or the task force’s mission. Some seizures were as small as eight cents. Another seizure of ninety-three cents prompted the local newspaper to observe that “once again the officers were taking whatever the suspects were carrying, even though by no stretch could pocket change be construed to be drug money.”55

  In 2000, Congress passed the Civil Asset Forfeiture Reform Act which was meant to address many of the egregious examples of abuse of civil forfeiture. Some of the most widely cited examples involved wealthy whites whose property was seized. One highly publicized case involved a reclusive millionaire, Donald Scott, who was shot and killed when a multiagency task force raided his two-hundred-acre Malibu ranch purportedly in search of marijuana plants. They never found a single marijuana plant in the course of the search. A subsequent investigation revealed that the primary motivation for the raid was the possibility of forfeiting Scott’s property. If the forfeiture had been successful, it would have netted the law enforcement agencies about $5 million in assets.56 In another case, William Munnerlynn had his Learjet seized by the DEA after he inadvertently used it to transport a drug dealer. Though charges were dropped against him within seventy-two hours, the DEA refused to return his Learjet. Only after five years of litigation and tens of thousands of dollars in legal fees was he able to secure return of his jet. When the jet was returned, it had sustained $100,000 worth of damage. 57 Such cases were atypical but got the attention of Congress.

  The Reform Act resulted in a number of significant due-process changes, such as shifting the burden of proof onto the government, eliminating the requirement that an owner post a cost bond, and providing some minimal hardship protections for innocent parties who stand to lose their homes. These reforms, however, do not go nearly far enough.

  Arguably the most significant reform is the creation of an “innocent owner” defense. Prior to the Reform Act, the Supreme Court had ruled that the guilt or innocence of the property’s owner was irrelevant to the property’s guilt—a ruling based on the archaic legal fiction that a piece of property could be “guilty” of a crime. The act remedied this insanity to some extent; it provides an “innocent owner” defense to those whose property has been seized. However, the defense is seriously undermined by the fact that the government’s burden of proof is so low—the government need only establish by a “preponderance of the evidence” that the property was involved in the commission of a drug crime. This standard of proof is significantly lower than the “clear and convincing evidence” standard contained in an earlier version of the legislation, and it is far lower than the “proof beyond a reasonable doubt” standard for criminal convictions.

  Once the government meets this minimal burden, the burden then shifts to the owner to prove that she “did not know of the conduct giving rise to the forfeiture” or that she did “all that reasonably could be expected under the circumstances to terminate such use of the property.” This means, for example, that a woman who knew that her husband occasionally smoked pot could have her car forfeited to the government because she allowed him to use her car. Because the “car” was guilty of transporting someone who had broken a drug law at some time, she could legally lose her only form of transportation, even though she herself committed no crime. Indeed, women who are involved in some relationship with men accused of drug crimes, typically husbands or boyfriends, are among the most frequent claimants in forfeiture proceedings.58 Courts have not been forgiving of women in these circumstances, frequently concluding that “the nature and circumstances of the marital relationship may give rise to an inference of knowledge by the spouse claiming innocent ownership.”59

  There are other problems with this framework, not the least of which being that the owner of the property is not entitled to the appointment of counsel in the forfeiture proceeding, unless he or she has been charged with a crime. The overwhelming majority of forfeiture cases do not involve any criminal charges, so the vast majority of people who have their cash, cars, or homes seized must represent themselves in court, against the federal government. Oddly, someone who has actually been charged with a crime is entitled to the appointment of counsel in civil forfeiture proceedings, but those whose property has been forfeited but whose conduct did not merit criminal charges are on their own. This helps to explain why up to 90 percent of forfeiture cases in some jurisdictions are not challenged. Most people simply cannot afford the considerable cost of hiring an attorney. Even if the cost is not an issue, the incentives are all wrong. If the police seized your car worth $5,000, or took $500 cash from your home, would you be willing to pay an attorney more than your assets are wo
rth to get them back? If you haven’t been charged with a crime, are you willing to risk the possibility that fighting the forfeiture might prompt the government to file criminal charges against you?

  The greatest failure of the Reform Act, however, has nothing to do with one’s due process rights once property has been seized in a drug investigation. Despite all of the new procedural rules and formal protections, the law does not address the single most serious problem associated with drug-war forfeiture laws: the profit motive in drug-law enforcement. Under the new law, drug busts motivated by the desire to seize cash, cars, homes, and other property are still perfectly legal. Law enforcement agencies are still allowed, through revenue-sharing agreements with the federal government, to keep seized assets for their own use. Clearly, so long as law enforcement is free to seize assets allegedly associated with illegal drug activity—without ever charging anyone with a crime—local police departments, as well as state and federal law enforcement agencies, will continue to have a direct pecuniary interest in the profitability and longevity of the drug war. The basic structure of the system remains intact.

  None of this is to suggest that the financial rewards offered for police participation in the drug war are the only reason that law enforcement decided to embrace the war with zeal. Undoubtedly, the political and cultural context of the drug war—particularly in the early years—encouraged the roundup. When politicians declare a drug war, the police (our domestic warriors) undoubtedly feel some pressure to wage it. But it is doubtful that the drug war would have been launched with such intensity on the ground but for the bribes offered for law enforcement’s cooperation.