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

by Michelle Alexander

  Today the bribes may no longer be necessary. Now that the SWAT teams, the multiagency drug task forces, and the drug enforcement agenda have become a regular part of federal, state, and local law enforcement, it appears the drug war is here to stay. Funding for the Byrne-sponsored drug task forces has dwindled in recent years, but President Obama has promised to revive the Byrne grant program, claiming that it is “critical to creating the anti-drug task forces our communities need.”60 Relatively little organized opposition to the drug war currently exists, and any dramatic effort to scale back the war may be publicly condemned as “soft” on crime. The war has become institutionalized. It is no longer a special program or politicized project; it is simply the way things are done.

  Legal Misrepresentation

  So far, we have seen that the legal rules governing the drug war ensure that extraordinary numbers of people will be swept into the criminal justice system—arrested on drug charges, often for very minor offenses. But what happens after arrest? How does the design of the system help to ensure the creation of a massive undercaste?

  Once arrested, one’s chances of ever being truly free of the system of control are slim, often to the vanishing point. Defendants are typically denied meaningful legal representation, pressured by the threat of a lengthy sentence into a plea bargain, and then placed under formal control—in prison or jail, on probation or parole. Most Americans probably have no idea how common it is for people to be convicted without ever having the benefit of legal representation, or how many people plead guilty to crimes they did not commit because of fear of mandatory sentences.

  Tens of thousands of poor people go to jail every year without ever talking to a lawyer, and those who do meet with a lawyer for a drug offense often spend only a few minutes discussing their case and options before making a decision that will profoundly affect the rest of their lives. As one public defender explained to the Los Angeles Times, “They are herded like cattle [into the courtroom lockup], up at 3 or 4 in the morning. Then they have to make decisions that affect the rest of their lives. You can imagine how stressful it is.”61

  More than forty years ago, in Gideon v. Wainwright, the Supreme Court ruled that poor people accused of serious crimes were entitled to counsel. Yet thousands of people are processed through America’s courts annually either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation. In Gideon, the Supreme Court left it to state and local governments to decide how legal services should be funded. However, in the midst of a drug war, when politicians compete with each other to prove how “tough” they can be on crime and criminals, funding public defender offices and paying private attorneys to represent those accused of crimes has been a low priority.

  Approximately 80 percent of criminal defendants are indigent and thus unable to hire a lawyer.62 Yet our nation’s public defender system is woefully inadequate. The most visible sign of the failed system is the astonishingly large caseloads public defenders routinely carry, making it impossible for them to provide meaningful representation to their clients. Sometimes defenders have well over one hundred clients at a time; many of these clients are facing decades behind bars or life imprisonment. Too often the quality of court-appointed counsel is poor because the miserable working conditions and low pay discourage good attorneys from participating in the system. And some states deny representation to impoverished defendants on the theory that somehow they should be able to pay for a lawyer, even though they are scarecely able to pay for food or rent. In Virginia, for example, fees paid to court-appointed attorneys for representing someone charged with a felony that carries a sentence of less than twenty years are capped at $428. And in Wisconsin, more than 11,000 poor people go to court without representation every year because anyone who earns more than $3,000 per year is considered able to afford a lawyer.63 In Lake Charles, Louisiana, the public defender office has only two investigators for the 2,500 new felony cases and 4,000 new misdemeanor cases assigned to the office each year.64 The NAACP Legal Defense Fund and the Southern Center for Human Rights in Atlanta sued the city of Gulfport, Mississippi, alleging that the city operated a “modern day debtor’s prison” by jailing poor people who are unable to pay their fines and denying them the right to lawyers.

  In 2004, the American Bar Association released a report on the status of indigent defense, concluding that, “All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.”65

  Even when people are charged with extremely serious crimes, such as murder, they may find themselves languishing in jail for years without meeting with an attorney, much less getting a trial. One extreme example is the experience of James Thomas, an impoverished day laborer in Baton Rouge, Louisiana, who was charged with murder in 1996, and waited eight and a half years for his case to go to trial. It never did. His mother finally succeeded in getting his case dismissed, after scraping together $500 to hire an attorney, who demonstrated to the court that, in the time Thomas spent waiting for his case to go to trial, his alibi witness had died of kidney disease. Another Louisiana man, Johnny Lee Ball, was convicted of second-degree murder and sentenced to life in prison without the possibility of parole after meeting with a public defender for just eleven minutes before trial. If indicted murderers have a hard time getting meaningful representation, what are the odds that small-time drug dealers find themselves represented by a zealous advocate? As David Carroll, the research director for the National Legal Aid & Defender Association explained to USA Today, “There’s a real disconnect in this country between what people perceive is the state of indigent defense and what it is. I attribute that to shows like Law & Order, where the defendant says, ‘I want a lawyer,’ and all of a sudden Legal Aid appears in the cell. That’s what people think.”66

  Children caught up in this system are the most vulnerable and yet are the least likely to be represented by counsel. In 1967, the U.S. Supreme Court ruled in In re Gault that children under the age of eighteen have the right to legal assistance with any criminal charges filed against them. In practice, however, children routinely “waive” their right to counsel in juvenile proceedings. In some states, such as Ohio, as many as 90 percent of children charged with criminal wrongdoing are not represented by a lawyer. As one public defender explained, “The kids come in with their parents, who want to get this dealt with as quickly as possible, and they say, ‘You did it, admit it.’ If people were informed about what could be done, they might actually ask for help.”67

  Bad Deal

  Almost no one ever goes to trial. Nearly all criminal cases are resolved through plea bargaining—a guilty plea by the defendant in exchange for some form of leniency by the prosecutor. Though it is not widely known, the prosecutor is the most powerful law enforcement official in the criminal justice system. One might think that judges are the most powerful, or even the police, but in reality the prosecutor holds the cards. It is the prosecutor, far more than any other criminal justice official, who holds the keys to the jailhouse door.

  After the police arrest someone, the prosecutor is in charge. Few rules constrain the exercise of his or her discretion. The prosecutor is free to dismiss a case for any reason or no reason at all. The prosecutor is also free to file more charges against a defendant than can realistically be proven in court, so long as probable cause arguably exists—a practice known as overcharging.

  The practice of encouraging defendants to plead guilty to crimes, rather than affording them the benefit of a full trial, has always carried its risks and downsides. Never before in our history, though, have such an extraordina
ry number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe. When prosecutors offer “only” three years in prison when the penalties defendants could receive if they took their case to trial would be five, ten, or twenty years—or life imprisonment—only extremely courageous (or foolish) defendents turn the offer down.

  The pressure to plead guilty to crimes has increased exponentially since the advent of the War on Drugs. In 1986, Congress passed The Anti-Drug Abuse Act, which established extremely long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine. The typical mandatory sentence for a first-time drug offense in federal court is five or ten years. By contrast, in other developed countries around the world, a first-time drug offense would merit no more than six months in jail, if jail time is imposed at all.68 State legislatures were eager to jump on the “get tough” bandwagon, passing harsh drug laws, as well as “three strikes” laws mandating a life sentence for those convicted of any third offense. These mandatory minimum statutory schemes have transferred an enormous amount of power from judges to prosecutors. Now, simply by charging someone with an offense carrying a mandatory sentence of ten to fifteen years or life, prosecutors are able to force people to plead guilty rather than risk a decade or more in prison. Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause but which they seriously doubt they could ever win in court.69 They “load up” defendants with charges that carry extremely harsh sentences in order to force them to plead guilty to lesser offenses and—here’s the kicker—to obtain testimony for a related case. Harsh sentencing laws encourage people to snitch.

  The number of snitches in drug cases has soared in recent years, partly because the government has tempted people to “cooperate” with law enforcement by offering cash, putting them “on payroll,” and promising cuts of seized drug assets, but also because ratting out co-defendants, friends, family, or acquaintances is often the only way to avoid a lengthy mandatory minimum sentence.70 In fact, under the federal sentencing guidelines, providing “substantial assistance” is often the only way defendants can hope to obtain a sentence below the mandatory minimum. The “assistance” provided by snitches is notoriously unreliable, as studies have documented countless informants who have fabricated stories about drug-related and other criminal activity in exchange for money or leniency in their pending criminal cases.71 While such conduct is deplorable, it is not difficult to understand. Who among us would not be tempted to lie if it was the only way to avoid a forty-year sentence for a minor drug crime?

  The pressure to plea-bargain and thereby “convict yourself” in exchange for some kind of leniency is not an accidental by-product of the mandatory-sentencing regime. The U.S. Sentencing Commission itself has noted that “the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge.” Describing severe mandatory sentences as a bargaining chip is a major understatement, given its potential for extracting guilty pleas from people who are innocent of any crime.

  It is impossible to know for certain how many innocent drug defendants convict themselves every year by accepting a plea bargain out of fear of mandatory sentences, or how many are convicted due to lying informants and paid witnesses, but reliable estimates of the number of innocent people currently in prison tend to range from 2 percent to 5 percent.72 While those numbers may sound small (and probably are underestimates), they translate into thousands of innocent people who are locked up, some of whom will die in prison. In fact, if only 1 percent of America’s prisoners are actually innocent of the crimes for which they have been convicted, that would mean tens of thousands of innocent people are currently languishing behind bars in the United States.

  The real point here, however, is not that innocent people are locked up. That has been true since penitentiaries first opened in America. The critical point is that thousands of people are swept into the criminal justice system every year pursuant to the drug war without much regard for their guilt or innocence. The police are allowed by the courts to conduct fishing expeditions for drugs on streets and freeways based on nothing more than a hunch. Homes may be searched for drugs based on a tip from an unreliable, confidential informant who is trading the information for money or to escape prison time. And once swept inside the system, people are often denied attorneys or meaningful representation and pressured into plea bargains by the threat of unbelievably harsh sentences—sentences for minor drug crimes that are higher than many countries impose on convicted murderers. This is the way the roundup works, and it works this way in virtually every major city in the United States.

  Time Served

  Once convicted of felony drug charges, one’s chances of being released from the system in short order are slim, at best. The elimination of judicial discretion through mandatory sentencing laws has forced judges to impose sentences for drug crimes that are often longer than those violent criminals receive. When judges have discretion, they may consider a defendant’s background and impose a lighter penalty if the defendant’s personal circumstances—extreme poverty or experience of abuse, for example—warrant it. This flexibility—which is important in all criminal cases—is especially important in drug cases, as studies have indicated that many drug defendants are using or selling to support an addiction.73 Referring a defendant to treatment, rather than sending him or her to prison, may well be the most prudent choice—saving government resources and potentially saving the defendant from a lifetime of addiction. Likewise, imposing a short prison sentence (or none at all) may increase the chances that the defendant will experience successful re-entry. A lengthy prison term may increase the odds that reentry will be extremely difficult, leading to relapse, and re-imprisonment. Mandatory drug sentencing laws strip judges of their traditional role of considering all relevant circumstances in an effort to do justice in the individual case.

  Nevertheless, harsh mandatory minimum sentences for drug offenders have been consistently upheld by the U.S. Supreme Court. In 1982, the Supreme Court upheld forty years of imprisonment for possession and an attempt to sell 9 ounces of marijuana.74 Several years later, in Harmelin v. Michigan, the Court upheld a sentence of life imprisonment for a defendant with no prior convictions who attempted to sell 672 grams (approximately 23 ounces) of crack cocaine.75 The Court found the sentences imposed in those cases “reasonably proportionate” to the offenses committed—and not “cruel and unusual” in violation of the Eighth Amendment. This ruling was remarkable given that, prior to the Drug Reform Act of 1986, the longest sentence Congress had ever imposed for possession of any drug in any amount was one year. A life sentence for a first-time drug offense is unheard of in the rest of the developed world. Even for high-end drug crimes, most countries impose sentences that are measured in months, rather than years. For example, 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.76 Remarkably, in the United States, a life sentence is deemed perfectly appropriate for a first-time drug offender.

  The most famous Supreme Court decision upholding mandatory minimum sentences is Lockyer v. Andrade.77 In that case, the Court rejected constitutional challenges to sentences of twenty-five years without parole for a man who stole three golf clubs from a pro shop, and fifty years without parole for another man for stealing children’s videotapes from a Kmart store. These sentences were imposed pursuant to California’s controversial three strikes law, which mandates a sentence of twenty-five years to life for recidivists convicted of a third felony, no matter how minor. Writing for the Court’s majority, Justice Sandra Day O’Connor acknowledged that the sentences were severe but concluded that they are not grossly disproportionate to the off
ense, and therefore do not violate the Eighth Amendment’s ban on “cruel and unusual” punishments. In dissent, Justice David H. Souter retorted, “If Andrade’s sentence [for stealing videotapes] is not grossly disproportionate, the principle has no meaning.” Similarly, counsel for one of the defendants, University of Southern California law professor Erwin Chemerinsky, noted that the Court’s reasoning makes it extremely difficult if not impossible to challenge any recidivist sentencing law: “If these sentences aren’t cruel and unusual punishment, what would be?”78

  Mandatory sentencing laws are frequently justified as necessary to keep “violent criminals” off the streets, yet these penalties are imposed most often against drug offenders and those who are guilty of nonviolent crimes. In fact, under three-strikes regimes, such as the one in California, a “repeat offender” could be someone who had a single prior case decades ago. First and second strikes are counted by individual charges, rather than individual cases, so a single case can result in first, second, and even third strikes. For example, a person arrested for possession of a substantial amount of marijuana, as well as a tiny amount of cocaine, could be charged with at least two separate felonies: possession with intent to sell marijuana, as well as possession of cocaine. Pleading guilty to each of these crimes would result in “two strikes.” Fifteen years later, if the individual is arrested for passing a bad check, he or she could be facing a third strike and a life sentence. To make matters worse, sentences for each charge can run consecutively, so a defendant can easily face a sentence of fifty, seventy-five, or one hundred years to life arising from a single case. In fact, fifty years to life was the actual sentence given to Leandro Andrade, whose sentence for stealing videotapes was upheld by the Supreme Court.