The New Jim Crow: Chapter 2 Summary & Analysis

Alexander argues that the impression of the criminal justice system created within popular culture is profoundly misleading, “the modern-day equivalent of old films portraying happy slaves.” In reality, actual trials rarely take place, many of the accused never meet their attorneys, and innocent people are often pressured to plead guilty. In Chapter Two, she focuses on the War on Drugs because the contemporary American criminal justice system has been defined by anti-drug policies. 31 million people have been arrested for drug offences since the war began; the number of people in prison on drug offenses today has risen 1,100% since 1980.

Alexander begins by challenging important myths about the War on Drugs. Firstly, she argues that the war does not target “kingpins” (those who control and profit most from the drug trade). Neither does the drug war mainly target “dangerous” substances; 80% of the growth in drug arrests since 1980 are for marijuana possession. In later chapters, Alexander shows how the drug war specifically targets people of color, but in Chapter Two her focus is simply on how the war manages to incarcerate such a large percentage of the American population.

Alexander argues that the War on Drugs has allowed the police to operate without legal “restraints.” The Supreme Court has consistently ruled as if a “drug exception” is written into the Constitution, such that association with drugs disqualifies people from basic rights ranging from voting to housing to privacy. In other words, the drug war totally contradicts America’s status as a country defined by civil rights and liberties for all. Alexander emphasizes that “anyone, virtually anywhere, for any reason” can legally have their rights violated under anti-drug policies.

In the past, police were forbidden from stopping and searching people without a warrant; this was thought to be “a basic Fourth Amendment principle.” This changed with the introduction of “stop and frisk” in 1968. Alexander highlights one particular challenge that followed in the wake of the stop and frisk ruling: Florida vs. Bostick. Terrance Bostick was on a Greyhound bus and was searched at random by two police officers, who happened to find that he was carrying a pound of cocaine. The Florida Supreme Court ruled that the officers had acted in violation of the Fourth Amendment and that ordinary Americans should have the right to travel undisturbed. The US Supreme Court, however, overruled the decision on the grounds that a “reasonable person” in Bostick’s position would have felt free to refuse the police officer’s demands.

Alexander uses another example, of two men whom the police suspected (without evidence) of possessing drugs. These men, like Bostick, were African-American; the police stopped them on the pretext of a traffic violation, and found a bag of cocaine in the car. In their appeal, the men claimed that stopping people on the pretext of traffic offenses violates the Fourth Amendment. Alexander concurs, arguing that this makes everyone who gets behind the wheel liable to be searched by the police. However, the Supreme Court rejected the men’s appeal, upholding the right of the police to search anyone for any reason. Similar Supreme Court rulings have since further confirmed that the police are no longer constrained at all in their ability to search anyone for drugs.

After being unjustly stopped and searched by the police, few people expect to receive a fair trial, and many poor people and people of color rightly fear the consequences of demanding better treatment. However, although the courts seem confident of the police’s ability to detect drug offenders through some kind of “sixth sense,” in reality police are simply trained to stop and detain random people. Although the vast majority of random stops reveal no drugs, the sheer amount of people stopped by police means that the practice still produces a significant number of arrests and convictions. Officers use the stereotype of a “drug-courier profile” in order to identify people who are likely to be transporting drugs; the problem with this profile, however, is that it includes so many (contradictory) traits that it could apply to anyone.

Having explained how police are able to arrest so many people on drug charges, Alexander moves on to the next question: why? She reiterates that at the beginning of the War on Drugs, drug abuse was neither a new nor particularly urgent problem; national rates of drug abuse were actually declining. Despite this, federal authorities chose to violate states’ rights to handle their own drug policies and divert resources away from other crimes (such as violent assault, theft, and rape) by launching a nationwide drug war. The federal government encouraged support for the War on Drugs at the local level by offering enormous amounts of money, weaponry, and training to police units.

Thanks to this influx of money and weaponry, the War on Drugs quickly “went from being a political slogan to an actual war.” Before the drug war, SWAT teams were usually used only in extreme events such as hijackings or hostage situations; nowadays, they are most commonly used for no-knock searches of people’s homes for drugs. These searches are markedly aggressive, violent, and traumatic—particularly for children and other vulnerable people who happen to be home—and have killed people, including those totally innocent of drug charges. However, there has been little coverage of the militarization and increases in funding of the police.

To make matters worse, the federal government chose to incentivize police by allowing state and local authorities to keep most of the assets they seize from drug busts. This gave police and local authorities “a massive stake in the War on Drugs.” Furthermore, police were entitled to seize the cars, homes, and money of those who were simply suspected of being involved in drug crime, rather than only those who had been convicted. Few of those who had their property seized complained, in order to avoid being charged with a crime. Meanwhile, the wealthiest people arrested on drug charges—the kingpins—have enough money to easily buy their way out of jail time, whereas the lower-level dealers, users, and people in the wrong place at the wrong time fill the nation’s prisons.

Unsurprisingly, many police departments have now become dependent on drug money, and there are many known cases of police ignoring the requirement for search warrants and participating in illegal “shakedowns.” Although there have been attempts to prevent such abuse through legal reform, they have proven largely unsuccessful. This is partly because there are still myriad legal ways for the police to seize the property of innocent people, but mostly it’s because the profit incentive for police remains intact. Meanwhile, President Obama dramatically increased federal funding for anti-drug efforts, thereby further embedding the War on Drugs as a permanent component of the American political system.

After being arrested, few people have a chance of ever truly escaping the grip of the criminal justice system. Few receive adequate legal representation and many do not understand their rights. Children are particularly unlikely to request a lawyer, and in some states 90% of children are charged without one. Almost all drug cases do not go to trial but are resolved through plea bargaining, with many innocent people pressured to plead guilty, a phenomenon that “has increased exponentially since the advent of the War on Drugs” partly as a result of mandatory sentencing laws. Although the criminal justice system has always imprisoned innocent people, the scale at which this is currently taking place is unprecedented.

Before mandatory minimum sentencing laws, judges were sometimes lenient if the defendant faced issues of poverty, addiction, or abuse. However, mandatory minimum sentences mean that judges are rarely involved and could not exercise such leniency even if they wanted to. Unlike in the rest of the world, where sentences for selling drugs tend to be measured in months, in America it is common for these sentences to be decades long, and even first-time offenders are frequently sentenced to life in prison. Alexander provides examples of real people whose lives are destroyed by extraordinarily long sentences for minor crimes (which those sentenced were often barely involved with). She notes that even the conservative Supreme Court justice Anthony Kennedy—who was appointed by Reagan—has called mandatory minimum sentencing unnecessary and “unjust.”

Despite the problems caused by mandatory sentencing, mass incarceration would not be solved by decreasing the lengths of sentences. This is because of the stigma associated with “the prison label,” which makes felons who have finished their sentence “second-class citizens.” Because felons are barred from accessing public housing, welfare, and many kinds of employment, most end up back in prison. 68% of people released from prison end up back inside within three years, normally for violating one of the many rules of probation and parole. Unless mandatory sentences are eliminated, fewer people are convicted, and prisoners are supported in their reentry into society, mass incarceration will inevitably continue.