Key #3: The New Jim Crow System Of Legally Profiling Black/Brown Men With “Reasonable Suspicion”
So what are the current consequences of cultural stereotypes that assume black/brown men to be criminals? In her book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” civil rights lawyer and legal scholar Michelle Alexander outlines how the American criminal justice system since the 1960s has created a racial caste structure through enforced de facto racial profiling, aggressive surveillance, and discriminatory sentencing of black/brown men. Much of these racial laws and policies were implemented during the controversial beginnings of Reagan’s War on Drugs in the 1980s. And that War was almost exclusively focused on low-income urban communities of color instead of white communities. As Alexander describes:
From the outset, the drug war could have been waged primarily in overwhelmingly white suburbs or on college campuses. SWAT teams could have rappelled from helicopters in gated suburban communities and raided the homes of high school lacrosse players known for hosting coke and ecstasy parties after their games. The police could have seized televisions, furniture, and cash from fraternity houses based on an anonymous tip that a few joints or a stash of cocaine could be found hidden in someone’s dresser drawer. Suburban homemakers could have been placed under surveillance and subjected to undercover operations designed to catch them violating laws regulating the use and sale of prescription “uppers.” All of this could have happened as a matter of routine in white communities, but it did not.
Instead, when police go looking for drugs, they look in the ‘hood. Tactics that would be political suicide in an upscale white suburb are not even newsworthy in poor black and brown communities. […] The hypersegregation of the black poor in ghetto communities has made the roundup easy. Confined to ghetto areas and lacking political power, the black poor are convenient targets.
The War on Drugs relies extensively on racially-biased profiling by police. However, there is a difference in the American legal system between “racial profiling,” or arrests made solely on the basis of race, versus using race as one factor among many in the use of police discretion in decision-making. While “racial profiling” itself is illegal, Michelle Alexander points out that “the Supreme Court has indicated that in policing, race can be used as a factor in discretionary decision making” by police officers. This opens the door for police departments to justify racially-biased policing because, as Alexander describes:
… police departments believe that racial profiling exists only when race is the sole factor. Thus, if race is one factor but not the only factor, then it doesn’t really count as a factor at all. […] A young black male wearing baggy pants, standing in front of his high school surrounded by a group of similarly dressed black friends, may be stopped and searched because police believe he “looks like” a drug dealer. The problem is that although race is rarely the sole reason for a stop or search, it is frequently a determinative reason. A young white male wearing baggy pants, standing in front of his high school and surrounded by his friends, might well be ignored by police officers. It might never occur to them that a group of young white kids might be dealing dope in front of their high school. Similarly situated people inevitably are treated differently when police are granted permission to rely on racial stereotypes when making discretionary decisions.
So how do such racially-biased policies play out in practice? A 2002 study by researchers at the University of Washington focused on arrest patterns in the Seattle Police Department when it came to drug-related policing. As Alexander summarizes:
The authors found that it was untrue stereotypes about crack markets, crack dealers, and crack babies—not facts—that were driving discretionary decision making by the Seattle Police Department. The facts were as follows: Seattle residents were far more likely to report suspected narcotics activities in residences—not outdoors—but police devoted their resources to open-air drug markets and to the one precinct that was least likely to be identified as the site of suspected drug activity in citizen complaints. In fact, although hundreds of outdoor drug transactions were recorded in predominantly white areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transactions was much lower. In racially mixed open-air drug markets, black dealers were far more likely to be arrested than whites, even though white dealers were present and visible. And the department focused overwhelmingly on crack—the one drug in Seattle more likely to be sold by African Americans—despite the fact that local hospital records indicated that overdose deaths involving heroin were more numerous than all overdose deaths for crack and powder cocaine combined. Local police acknowledged that no significant level of violence was associated with crack in Seattle and that other drugs were causing more hospitalizations, but steadfastly maintained that their deployment decisions were nondiscriminatory.
The study’s authors concluded, based on their review and analysis of the empirical evidence, that the Seattle Police Department’s decisions to focus so heavily on crack, to the near exclusion of other drugs, and to concentrate its efforts on outdoor drug markets in downtown areas rather than drug markets located indoors or in predominantly white communities, reflect “a racialized conception of the drug problem.”
This racialized cultural script about who and what constitutes the drug problem renders illegal drug activity by whites invisible. “White people,” the study’s authors observed, “are simply not perceived as drug offenders by Seattle police officers.”
Similarly, federal data shows that in 2010, “blacks were 3.7 times as likely to be arrested for marijuana possession than whites […] even though they used marijuana at similar rates,” prompting sociologist Lisa Wade to ask “It’s a war on what again?”
Disproportionate arrests of black/brown men due to racial profiling then leads into discriminatory patterns of sentencing and policing. As Alexander says:
Subjecting people to stops and searches because they live in “high crime” ghettos cannot be said to be truly race-neutral, given that the ghetto itself was constructed to contain and control groups of people defined by race. A black kid arrested twice for possession of marijuana may be no more of a repeat offender than a white frat boy who regularly smokes pot in his dorm room. But because of his race and his confinement to a racially segregated ghetto, the black kid has a criminal record, while the white frat boy, because of his race and relative privilege, does not.
The War on Drugs also relies in a massive number of stops and searches but with shockingly small results. Alexander reports that “one study found that up to 99 percent of traffic stops made by federally funded narcotics task forces result in no citation.” But the 1 percent of stops and searches that DO result in a citation, especially for black/brown men from poor neighborhoods, leads to a “parade of guilty people” in the courts that makes it look like drug crimes are primarily committed by black/brown men. And this appearance convinces judges that when police make arrests, they are acting on some magical ‘hunch’ that turns out to be right—even if the facts don’t bear out—so the courts explicitly authorize the use of ‘profiles’ in policing.
Alexander studied the patterns in such profiles of ‘drug-couriers’ used by law enforcement as the pretext for stopping suspected individuals. She found them to be a collection of unreliable contradictions:
The profile can include traveling with luggage, traveling without luggage, driving an expensive car, driving a car that needs repairs, driving with out-of-state license plates, driving a rental car, driving with “mismatched occupants,” acting too calm, acting too nervous, dressing casually, wearing expensive clothing or jewelry, being one of the first to deplane, being one of the last to deplane, deplaning in the middle, paying for a ticket in cash, using large-denomination currency, using small-denomination currency, traveling alone, traveling with a companion, and so on. Even striving to obey the law fits the profile! The Florida Highway Patrol Drug Courier Profile cautioned troopers to be suspicious of “scrupulous obedience to traffic laws.”
Taken together, this pattern of criminalization and suspicion of young black/brown men in the context of the War on Drugs explains much of the Zimmerman defense team’s strategy. By evoking Trayvon’s alleged drug use (the trace amounts of marijuana in his blood) and parading pictures of him shirtless, and by repeatedly insinuating that Trayvon was some kind of thug, the defense successfully connected the jury to a deeply entrenched pattern of suspecting young black men of being drug criminals. And the defense team was at pains to point out that there was no racial profiling, just regular profiling apparently, where Trayvon’s race was simply one factor among many that fit into a profile of suspected criminality. And just like the arbitrariness of drug-courier profiles as described above, the Zimmerman defense team’s profiling of Trayvon also involved numerous contradictory and unreliable indicators: he was suspicious because he walked too slowly! As commentator Charles Blow poignantly asked in a question that haunts me everyday about my own brown son:
We used to say not to run in public because that might be seen as suspicious, like they’d stolen something. But according to Zimmerman, Martin drew his suspicion at least in part because he was walking too slowly. So what do I tell my boys now? At what precise pace should a black man walk to avoid suspicion?