Home Uncategorized essay

Uncategorized

essay

OBJECTIVE:

To show an understanding of how social institutions define crime and how they produce racialized effects in the criminal justice system.

Requirements:

Drawing from at least 2 readings and one film from weeks 1-6, explain why social structure theory might be wrong to place primary concern for crime with weaknesses or pathologies within poor communities. How have these communities been criminalized and subjected to unjust forms of policing and criminal justice/punishment/mass incarceration that are not only unjust but racist?

MATERIALS:

You can use any film or video covered in the course and any of the recommended or required readings. Make sure at least one of your readings is a scholarly article (meaning, not a news article). Lecture slides also provide valuable information and should be scanned for relevant information (hint: if you discuss topics that are covered in slides but do not incorporate the information in the slides then this will impact your grade).

This is not a research paper so do not add research materials unless you get approval from the instructor.

ESSAY REQUIREMENTS:

Write a 5-page essay (minimum) in scholarly format using Chicago Manual Style citations. Information for bibliographies is included in the syllabus.

FORMATTING REQUIREMENTS:

1. Include your name, student number, the date, course number, and the professor’s name on the top left of the first page.

2. Include a title for your work.

3. Use 12 point Times New Roman font and double space your work.

4. Insert a footer or header with your last name and the page number.

5-USE DIRECT QUOTES ONLY IN YOUR ESSAYS

FILMS-

Above the Law | CBC Docs POV

negro frolics on Twitter: “https://t.co/hI89Md7eyg” / Twitter

“No Justification”: Minneapolis Demands Murder Charges for Police Officer Who Killed George Floyd | Democracy Now!

Van Jones On George Floyd Riots: “I Have Not Seen Black People This Upset In 20 Years” | Video | RealClearPolitics

(12) The House I Live In (2012) HD – War on Drugs in the United States – YouTube

The Lockdown

We may think we know how the criminal justice system works. Television
is overloaded with fi ctional dramas about police, crime, and prosecutors—
shows such as Law & Order. These fi ctional dramas, like the evening news,
tend to focus on individual stories of crime, victimization, and punishment,
and the stories are typically told from the point of view of law enforcement.
A charismatic police offi cer, investigator, or prosecutor struggles with his
own demons while heroically trying to solve a horrible crime. He ultimately
achieves a personal and moral victory by fi nding the bad guy and throwing
him in jail. That is the made-for-TV version of the criminal justice system. It
perpetuates the myth that the primary function of the system is to keep our
streets safe and our homes secure by rooting out dangerous criminals and
punishing them. These television shows, especially those that romanticize
drug-law enforcement, are the modern-day equivalent of the old movies por-
traying happy slaves, the fi ctional gloss placed on a brutal system of racial-
ized oppression and control.

Those who have been swept within the criminal justice system know that
the way the system actually works bears little resemblance to what happens
on television or in movies. Full-blown trials of guilt or innocence rarely oc-
cur; many people never even meet with an attorney; witnesses are routinely
paid and coerced by the government; police regularly stop and search people
for no reason whatsoever; penalties for many crimes are so severe that inno-
cent people plead guilty, accepting plea bargains to avoid harsh mandatory
sentences; and children, even as young as fourteen, are sent to adult prisons.

Alexander, Michelle. The New Jim Crow : Mass Incarceration in the Age of Colorblindness, New Press, The, 2010. ProQuest Ebook
Central, http://ebookcentral.proquest.com/lib/ubc/detail.action?docID=517122.
Created from ubc on 2020-05-01 21:17:58.

C
op

yr
ig

ht
©

2
01

0.
N

ew
P

re
ss

, T
he

. A
ll

rig
ht

s
re

se
rv

ed
.

the lockdown 59

Rules of law and procedure, such as “guilt beyond a reasonable doubt” or
“prob able cause” or “reasonable suspicion,” can easily be found in court
cases and law-school textbooks but are much harder to fi nd in real life.

In this chapter, we shall see how the system of mass incarceration actually
works. Our focus is the War on Drugs. The reason is simple: Convictions for
drug offenses are the single most important cause of the explosion in incar-
ceration rates in the United States. Drug offenses alone account for two-
thirds of the rise in the federal inmate population and more than half of
the rise in state prisoners between 1985 and 2000.1 Approximately a half-
million people are in prison or jail for a drug offense today, compared to an
estimated 41,100 in 1980—an increase of 1,100 percent.2 Drug arrests have
tripled since 1980. As a result, more than 31 million people have been ar-
rested for drug offenses since the drug war began.3 Nothing has contributed
more to the systematic mass incarceration of people of color in the United
States than the War on Drugs.

Before we begin our tour of the drug war, it is worthwhile to get a couple
of myths out of the way. The fi rst is that the war is aimed at ridding the nation
of drug “kingpins” or big-time dealers. Nothing could be further from the
truth. The vast majority of those arrested are not charged with serious offenses.
In 2005, for example, four out of fi ve drug arrests were for possession, and
only one out of fi ve was for sales. Moreover, most people in state prison for
drug offenses have no history of violence or signifi cant selling activity.4

The second myth is that the drug war is principally concerned with dan-
gerous drugs. Quite to the contrary, arrests for marijuana possession—a drug
less harmful than tobacco or alcohol—accounted for nearly 80 percent of
the growth in drug arrests in the 1990s.5 Despite the fact that most drug ar-
rests are for nonviolent minor offenses, the War on Drugs has ushered in an
era of unprecedented punitiveness.

The percentage of drug arrests that result in prison sentences (rather than
dismissal, community ser vice, or probation) has quadrupled, resulting in a
prison-building boom the likes of which the world has never seen. In two
short decades, between 1980 and 2000, the number of people incarcerated
in our nation’s prisons and jails soared from roughly 300,000 to more than
2 million. By the end of 2007, more than 7 million Americans—or one in
every 31 adults—were behind bars, on probation, or on parole.6

We begin our exploration of the drug war at the point of entry—arrest by
the police—and then consider how the system of mass incarceration is

60 the new j im crow

structured to reward mass drug arrests and facilitate the conviction and im-
prisonment of an unprecedented number of Americans, whether guilty or
innocent. In subsequent chapters, we will consider how the system specifi –
cally targets people of color and then relegates them to a second-class status
analogous to Jim Crow. At this point, we simply take stock of the means by
which the War on Drugs facilitates the roundup and lockdown of an extraor-
dinary percentage of the U.S. population.

Rules of the Game

Few legal rules meaningfully constrain the police in the War on Drugs. This
may sound like an overstatement, but upon examination it proves accurate.
The absence of signifi cant constraints on the exercise of police discretion is
a key feature of the drug war’s design. It has made the roundup of millions
of Americans for nonviolent drug offenses relatively easy.

With only a few exceptions, the Supreme Court has seized every oppor-
tunity to facilitate the drug war, primarily by eviscerating Fourth Amendment
protections against unreasonable searches and seizures by the police. The
rollback has been so pronounced that some commentators charge that a vir-
tual “drug exception” now exists to the Bill of Rights. Shortly before his death,
Justice Thurgood Marshall felt compelled to remind his colleagues that there
is, in fact, “no drug exception” written into the text of the Constitution.7

Most Americans do not know what the Fourth Amendment of the U.S.
Constitution actually says or what it requires of the police. It states, in its
entirety:

The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be vi-
olated, and no warrants shall issue, but upon prob able cause, supported
by oath or affi rmation, and particularly describing the place to be
searched, and the person or things to be seized.

Courts and scholars agree that the Fourth Amendment governs all searches
and seizures by the police and that the amendment was adopted in response
to the En glish practice of conducting arbitrary searches under general war-
rants to uncover seditious libels. The routine police harassment, arbitrary

the lockdown 61

searches, and widespread police intimidation of those subject to En glish
rule helped to inspire the American Revolution. Not surprisingly, then, pre-
venting arbitrary searches and seizures by the police was deemed by the
Founding Fathers an essential element of the U.S. Constitution. Until the
War on Drugs, courts had been fairly stringent about enforcing the Fourth
Amendment’s requirements.

Within a few years after the drug war was declared, however, many legal
scholars noted a sharp turn in the Supreme Court’s Fourth Amendment ju-
risprudence. By the close of the Supreme Court’s 1990–91 term, it had be-
come clear that a major shift in the relationship between the citizens of this
country and the police was underway. Justice Stevens noted the trend in a
powerful dissent issued in Cal i fornia v. Acevedo, a case upholding the war-
rantless search of a bag locked in a motorist’s trunk:

In the years [from 1982 to 1991], the Court has heard argument in 30
Fourth Amendment cases involving narcotics. In all but one, the gov-
ernment was the petitioner. All save two involved a search or seizure
without a warrant or with a defective warrant. And, in all except three,
the Court upheld the constitutionality of the search or seizure. In the
meantime, the fl ow of narcotics cases through the courts has steadily
and dramatically increased. No impartial observer could criticize this
Court for hindering the progress of the war on drugs. On the contrary,
decisions like the one the Court makes today will support the conclu-
sion that this Court has become a loyal foot soldier in the Executive’s
fi ght against crime.8

The Fourth Amendment is but one example. Virtually all constitutionally
protected civil liberties have been undermined by the drug war. The Court has
been busy in recent years approving mandatory drug testing of employees and
students, upholding random searches and sweeps of public schools and stu-
dents, permitting police to obtain search warrants based on an anonymous
informant’s tip, expanding the government’s wiretapping authority, legitimat-
ing the use of paid, unidentifi ed informants by police and prosecutors, approv-
ing the use of helicopter surveillance of homes without a warrant, and allowing
the forfeiture of cash, homes, and other property based on unproven allega-
tions of illegal drug activity.

For our purposes here, we limit our focus to the legal rules crafted by the

62 the new j im crow

Supreme Court that grant law enforcement a pecuniary interest in the drug
war and make it relatively easy for the police to seize people virtually
anywhere—on public streets and sidewalks, on buses, airplanes and trains,
or any other public place—and usher them behind bars. These new legal
rules have ensured that anyone, virtually anywhere, for any reason, can be-
come a target of drug-law enforcement activity.

Unreasonable Suspicion

Once upon a time, it was generally understood that the police could not stop
and search someone without a warrant unless there was prob able cause to
believe that the individual was engaged in criminal activity. That was a basic
Fourth Amendment principle. In Terry v. Ohio, decided in 1968, the Su-
preme Court modifi ed that understanding, but only modestly, by ruling that
if and when a police offi cer observes unusual conduct by someone the offi –
cer reasonably believes to be dangerous and engaged in criminal activity, the
offi cer “is entitled for the protection of himself and others in the area” to
conduct a limited search “to discover weapons that might be used against
the offi cer.”9 Known as the stop-and-frisk rule, the Terry decision stands for
the proposition that, so long as a police offi cer has “reasonable articulable
suspicion” that someone is engaged in criminal activity and dangerous, it is
constitutionally permissible to stop, question, and frisk him or her—even in
the absence of prob able cause.

Justice Douglas dissented in Terry on the grounds that “grant[ing] police
greater power than a magistrate [judge] is to take a long step down the totali-
tarian path.”10 He objected to the notion that police should be free to con-
duct warrantless searches whenever they suspect someone is a criminal,
believing that dispensing with the Fourth Amendment’s warrant require-
ment risked opening the door to the same abuses that gave rise to the Ameri-
can Revolution. His voice was a lonely one. Most commentators at the time
agreed that affording police the power and discretion to protect themselves
during an encounter with someone they believed to be a dangerous criminal
is not “unreasonable” under the Fourth Amendment.

History suggests Justice Douglas had the better of the argument. In the
years since Terry, stops, interrogations, and searches of ordinary people
driv ing down the street, walking home from the bus stop, or riding the train,

the lockdown 63

have become commonplace—at least for people of color. As Douglas sus-
pected, the Court in Terry had begun its slide down a very slippery slope. To-
day it is no longer necessary for the police to have any reason to believe that
people are engaged in criminal activity or actually dangerous to stop and
search them. As long as you give “consent,” the police can stop, interrogate,
and search you for any reason or no reason at all.

Just Say No

The fi rst major sign that the Supreme Court would not allow the Fourth
Amendment to interfere with the prosecution of the War on Drugs came in
Florida v. Bostick. In that case, Terrance Bostick, a twenty-eight-year-old Af-
rican American, had been sleeping in the back seat of a Greyhound bus on
his way from Miami to Atlanta. Two police offi cers, wearing bright green
“raid” jackets and displaying their badges and a gun, woke him with a start.
The bus was stopped for a brief layover in Fort Lauderdale, and the offi cers
were “working the bus,” looking for persons who might be carrying drugs.
Bostick provided them with his identifi cation and ticket, as requested. The
offi cers then asked to search his bag. Bostick complied, even though he
knew his bag contained a pound of cocaine. The offi cers had no basis for
suspecting Bostick of any criminal activity, but they got lucky. They arrested
Bostick, and he was charged and convicted of traffi cking cocaine.

Bostick’s search and seizure refl ected what had become an increasingly
common tactic in the War on Drugs: suspicionless police sweeps of buses in
interstate or intrastate travel. The resulting “interviews” of passengers in
these dragnet operations usually culminate in a request for “consent” to
search the passenger’s luggage.11 Never do the offi cers inform passengers
that they are free to remain silent or to refuse to answer questions. By pro-
ceeding systematically in this manner, the police are able to engage in an ex-
tremely high volume of searches. One offi cer was able to search over three
thousand bags in a nine-month period employing these techniques.12 By and
large, however, the hit rates are low. For example, in one case, a sweep of
one hundred buses resulted in only seven arrests.13

On appeal, the Florida Supreme Court ruled in Bostick’s case that the police
offi cer’s conduct violated the Fourth Amendment’s prohibition of unreasonable
searches and seizures. The Fourth Amendment, the court reasoned, forbids

64 the new j im crow

the police from seizing people and searching them without some individual-
ized suspicion that they have committed or are committing a crime. The
court thus overturned Bostick’s conviction, ruling that the cocaine, having
been obtained illegally, was inadmissible. It also broadly condemned “bus
sweeps” in the drug war, comparing them to methods employed by totalitar-
ian regimes:

The evidence in this case has evoked images of other days, under other
fl ags, when no man traveled his nation’s roads or railways without fear
of unwarranted interruption, by individuals who had temporary power
in Government. . . . This is not Hitler’s Berlin, nor Stalin’s Moscow,
nor is it white supremacist South Africa. Yet in Broward County, Flor-
ida, these police offi cers approach every person on board buses and
trains (“that time permits”) and check identifi cation, tickets, ask to
search luggage—all in the name of “voluntary cooperation” with law
enforcement.14

The U.S. Supreme Court reversed. The Court ruled that Bostick’s en-
counter with the police was purely voluntary, and therefore he was not “seized”
within the meaning of the Fourth Amendment. Even if Bostick did not feel
free to leave when confronted by police at the back of the bus, the proper
question, according to the Court, was whether “a reasonable person” in Bos-
tick’s shoes would have felt free to terminate the encounter. A reasonable
person, the Court concluded, would have felt free to sit there and refuse to
answer the police offi cer’s questions, and would have felt free to tell the offi –
cer “No, you can’t search my bag.” Accordingly, Bostick was not really “seized”
within the meaning of the Fourth Amendment, and the subsequent search
was purely consensual. The Court made clear that its decision was to govern
all future drug sweeps, no matter what the circumstances of the targeted in-
dividual. Given the blanket nature of the ruling, courts have found police
encounters to be consensual in truly preposterous situations. For example, a
few years after Bostick, the District of Columbia Court of Appeals applied the
ruling to a case involving a fourteen-year-old girl interrogated by the police,
concluding that she must be held to the same reasonable-person standard.15

Prior to the Bostick decision, a number of lower courts had found absurd the
notion that “reasonable people” would feel empowered to refuse to answer

the lockdown 65

questions when confronted by the police. As federal judge Prentiss Marshall
explained, “The average person encountered will feel obliged to stop and re-
spond. Few will feel that they can walk away or refuse to answer.”16 Profes-
sor Tracey Maclin put it this way: “Common sense teaches that most of us
do not have the chutzpah or stupidity to tell a police offi cer to ‘get lost’ after
he has stopped us and asked us for identifi cation or questioned us about
possible criminal conduct.”17 Other courts emphasized that granting police
the freedom to stop, interrogate, and search anyone who consented would
likely lead to racial and ethnic discrimination. Young black men would be
the likely targets, rather than older white women. Justice Thurgood Mar-
shall acknowledged as much in his dissent in Bostick, noting “the basis of
the decision to single out particular passengers during a suspicionless sweep
is less likely to be inarticulable than unspeakable.”18

Studies have shown that Maclin’s common sense is correct: the over-
whelming majority of people who are confronted by police and asked ques-
tions respond, and when asked to be searched, they comply.19 This is the
case even among those, like Bostick, who have every reason to resist these
tactics because they actually have something to hide. This is no secret to the
Supreme Court. The Court long ago acknowledged that effective use of
consent searches by the police depends on the ignorance (and powerless-
ness) of those who are targeted. In Schneckloth v. Bustamonte, decided in
1973, the Court admitted that if waiver of one’s right to refuse consent were
truly “knowing, intelligent, and voluntary,” it would “in practice create seri-
ous doubt whether consent searches would continue to be conducted.”20 In
other words, consent searches are valuable tools for the police only because
hardly anyone dares to say no.

Poor Excuse

So-called consent searches have made it possible for the police to stop and
search for drugs just about anybody walking down the street. All a police of-
fi cer has to do in order to conduct a baseless drug investigation is ask to
speak with someone and then get their “consent” to be searched. So long as
orders are phrased as a question, compliance is interpreted as consent. “May
I speak to you?” thunders an offi cer. “Will you put your arms up and stand

66 the new j im crow

against the wall for a search?” Because almost no one refuses, drug sweeps
on the sidewalk (and on buses and trains) are easy. People are easily intimi-
dated when the police confront them, hands on their revolvers, and most
have no idea the question can be answered, “No.” But what about all the
people driv ing down the street? How do police extract consent from them?
The answer: pretext stops.

Like consent searches, pretext stops are favorite tools of law enforcement
in the War on Drugs. A classic pretext stop is a traffi c stop motivated not by
any desire to enforce traffi c laws, but instead motivated by a desire to hunt
for drugs in the absence of any evidence of illegal drug activity. In other
words, police offi cers use minor traffi c violations as an excuse—a pretext—
to search for drugs, even though there is not a shred of evidence suggesting
the motorist is violating drug laws. Pretext stops, like consent searches, have
received the Supreme Court’s unequivocal blessing. Just ask Michael Whren
and James Brown.

Whren and Brown, both of whom are African American, were stopped by
plainclothes offi cers in an unmarked vehicle in June 1993. The police ad-
mitted to stopping Whren and Brown because they wanted to investigate
them for imagined drug crimes, even though they did not have prob able
cause or reasonable suspicion such crimes had actually been committed.
Lacking actual evidence of criminal activity, the offi cers decided to stop
them based on a pretext—a traffi c violation. The offi cers testifi ed that the
driver failed to use his turn signal and accelerated abruptly from a stop sign.
Although the offi cers weren’t really interested in the traffi c violation, they
stopped the pair anyway because they had a “hunch” they might be drug
criminals. It turned out they were right. According to the offi cers, the driver
had a bag of cocaine in his lap—allegedly in plain view.

On appeal, Whren and Brown challenged their convictions on the ground
that pretextual stops violate the Fourth Amendment. They argued that, be-
cause of the multitude of applicable traffi c and equipment regulations, and
the diffi culty of obeying all traffi c rules perfectly at all times, the police will
nearly always have an excuse to stop someone and go fi shing for drugs. Any-
one driv ing more than a few blocks is likely to commit a traffi c violation of
some kind, such as failing to track properly between lanes, failing to stop at
precisely the correct distance behind a crosswalk, failing to pause for pre-
cisely the right amount of time at a stop sign, or failing to use a turn signal

the lockdown 67

at the appropriate distance from an intersection. Allowing the police to use
minor traffi c violations as a pretext for baseless drug investigations would
permit them to single out anyone for a drug investigation without any evi-
dence of illegal drug activity whatsoever. That kind of arbitrary police con-
duct is precisely what the Fourth Amendment was intended to prohibit.

The Supreme Court rejected their argument, ruling that an offi cer’s moti-
vations are irrelevant when evaluating the reasonableness of police activity
under the Fourth Amendment. It does not matter, the Court declared, why
the police are stopping motorists under the Fourth Amendment, so long as
some kind of traffi c violation gives them an excuse. The fact that the Fourth
Amendment was specifi cally adopted by the Founding Fathers to prevent
arbitrary stops and searches was deemed unpersuasive. The Court ruled
that the police are free to use minor traffi c violations as a pretext to conduct
drug investigations, even when there is no evidence of illegal drug activity.

A few months later, in Ohio v. Robinette, the Court took its twisted logic
one step further. In that case, a police offi cer pulled over Robert Robinette,
allegedly for speeding. After checking Robinette’s license and issuing a warn-
ing (but no ticket), the offi cer then ordered Robinette out of his vehicle,
turned on a video camera in the offi cer’s car, and then asked Robinette
whether he was carrying any drugs and would “consent” to a search. He did.
The offi cer found a small amount of marijuana in Robinette’s car, and a sin-
gle pill, which turned out to be methamphetamine.

The Ohio Supreme Court, reviewing the case on appeal, was obviously
uncomfortable with the blatant fi shing expedition for drugs. The court noted
that traffi c stops were increasingly being used in the War on Drugs to extract
“consent” for searches, and that motorists may not believe they are free to
refuse consent and simply drive away. In an effort to provide some minimal
protection for motorists, the Ohio court adopted a bright-line rule, that is,
an unambiguous requirement that offi cers tell motorists they are free to
leave before asking for consent to search their vehicles. At the very least, the
justices reasoned, motorists should know they have the right to refuse con-
sent and to leave, if they so choose.

The U.S. Supreme Court struck down this basic requirement as “unreal-
istic.” In so doing, the Court made clear to all lower courts that, from now
on, the Fourth Amendment should place no meaningful constraints on the
police in the War on Drugs. No one needs to be informed of their rights dur-

68 the new j im crow

ing a stop or search, and police may use minor traffi c stops as well as the
myth of “consent” to stop and search anyone they choose for imaginary drug
crimes, whether or not any evidence of illegal drug activity actually exists.

One might imagine that the legal rules described thus far would provide
more than enough latitude for the police to engage in an all-out, no-holds-
barred war on drugs. But there’s more. Even if motorists, after being de-
tained and interrogated, have the nerve to refuse consent to a search, the
police can arrest them anyway. In Atwater v. City of Lago Vista, the Supreme
Court held that the police may arrest motorists for minor traffi c violations
and throw them in jail (even if the statutory penalty for the traffi c violation
is a mere fi ne, not jail time).

Another legal option for offi cers frustrated by a motorist’s refusal to grant
“consent” is to bring a drug-sniffi ng dog to the scene. This option is available
to police in traffi c stops, as well as to law enforcement offi cials confronted
with re sis tant travelers in airports and in bus or train stations who refuse to
give the police consent to search their luggage. The Supreme Court has
ruled that walking a drug-sniffi ng dog around someone’s vehicle (or some-
one’s luggage) does not constitute a “search,” and therefore does not trigger
Fourth Amendment scrutiny.21 If the dog alerts to drugs, then the offi cer has
prob able cause to search without the person’s consent. Naturally, in most
cases, when someone is told that a drug-sniffi ng dog will be called, the seized
individual backs down and “consents” to the search, as it has become apparent
that the police are determined to conduct the search one way or another.

Kissing Frogs

Court cases involving drug-law enforcement almost always involve guilty
people. Police usually release the innocent on the street—often without a
ticket, citation, or even an apology—so their stories are rarely heard in court.
Hardly anyone fi les a complaint, because the last thing most people want to
do after experiencing a frightening and intrusive encounter with the police
is show up at the police station where the offi cer works and attract more
attention to themselves. For good reason, many people—especially poor
people of color—fear police harassment, retaliation, and abuse. After hav-
ing your car torn apart by the police in a futile search for drugs, or being

the lockdown 69

forced to lie spread-eagled on the pavement while the police search you and
interrogate you for no reason at all, how much confi dence do you have in law
enforcement? Do you expect to get a fair hearing? Those who try to fi nd an
attorney to represent them in a lawsuit often learn that unless they have
broken bones (and no criminal record), private attorneys are unlikely to be
interested in their case. Many people are shocked to discover that what hap-
pened to them on the side of the road was not, in fact, against the law.

The inevitable result is that the people who wind up in front of a judge are
usually guilty of some crime. The parade of guilty people through America’s
courtrooms gives the false impression to the public—as well as to judges—
that when the police have a “hunch,” it makes sense to let them act on it.
Judges tend to imagine the police have a sixth sense—or some kind of spe-
cial police training—that qualifi es them to identify drug criminals in the ab-
sence of any evidence. After all, they seem to be right so much of the time,
don’t they?

The truth, however, is that most people stopped and searched in the War
on Drugs are perfectly innocent of any crime. The police have received no
training that enhances the likelihood they will spot the drug criminals as
they drive by and leave everyone else alone. To the contrary, tens of thou-
sands of law enforcement offi cers have received training that guarantees
precisely the opposite. The Drug Enforcement Agency (DEA) trains police
to conduct utterly unreasonable and discriminatory stops and searches
throughout the United States.

Perhaps the best known of these training programs is Operation Pipeline.
The DEA launched Operation Pipeline in 1984 as part of the Rea gan ad-
ministration’s rollout of the War on Drugs. The federal program, admin is-
tered by over three hundred state and local law enforcement agencies,
trains state and local law enforcement offi cers to use pretextual traffi c stops
and consent searches on a large scale for drug interdiction. Offi cers learn,
among other things, how to use a minor traffi c violation as a pretext to stop
someone, how to lengthen a routine traffi c stop and leverage it into a search
for drugs, how to obtain consent from a reluctant motorist, and how to use
drug-sniffi ng dogs to obtain prob able cause.22 By 2000, the DEA had di-
rectly trained more than 25,000 offi cers in forty-eight states in Pipeline
tactics and helped to develop training programs for countless municipal
and state law enforcement agencies. In legal scholar Ricardo Bascuas’s

70 the new j im crow

words, “Operation Pipeline is exactly what the Framers meant to prohibit: a
federally-run general search program that targets people without cause for
suspicion, particularly those who belong to disfavored groups.”23

The program’s success requires police to stop “staggering” numbers of
people in shotgun fashion.24 This “volume” approach to drug enforcement
sweeps up extraordinary numbers of innocent people. As one Cal i fornia High-
way Patrol Offi cer said, “It’s sheer numbers. . . . You’ve got to kiss a lot of
frogs before you fi nd a prince.”25 Accordingly, every year, tens of thousands
of motorists fi nd themselves stopped on the side of the road, fi elding ques-
tions about imaginary drug activity, and then succumbing to a request for
their vehicle to be searched—sometimes torn apart—in the search for drugs.
Most of these stops and searches are futile. It has been estimated that 95
percent of Pipeline stops yield no illegal drugs.26 One study found that up to
99 percent of traffi c stops made by federally funded narcotics task forces re-
sult in no citation and that 98 percent of task-force searches during traffi c
stops are discretionary searches in which the offi cer searches the car with
the driver’s verbal “consent” but has no other legal authority to do so.27

The “drug-courier profi les” utilized by the DEA and other law enforce-
ment agencies for drug sweeps on highways, as well as in airports and train
stations, are notoriously unreliable. In theory, a drug-courier profi le refl ects
the collective wisdom and judgment of a law enforcement agency’s offi cials.
Instead of allowing each offi cer to rely on his or her own limited experience
and biases in detecting suspicious behavior, a drug-courier profi le affords
every offi cer the advantage of the agency’s collective experience and ex per-
tise. However, as legal scholar David Cole has observed, “in practice, the
drug-courier profi le is a scattershot hodgepodge of traits and characteristics
so expansive that it potentially justifi es stopping anybody and everybody.”28
The profi le can include traveling with luggage, traveling without luggage,
driv ing an expensive car, driv ing a car that needs repairs, driv ing with out-of-
state license plates, driv ing a rental car, driv ing with “mismatched occu-
pants,” acting too calm, acting too ner vous, dressing casually, wearing
expensive clothing or jewelry, being one of the fi rst to deplane, being one of
the last to deplane, deplaning in the middle, paying for a ticket in cash, us-
ing large-denomination currency, using small-denomination currency, trav-
eling alone, traveling with a companion, and so on. Even striving to obey the
law fi ts the profi le! The Florida Highway Patrol Drug Courier Profi le cau-
tioned troopers to be suspicious of “scrupulous obedience to traffi c laws.”29

the lockdown 71

As Cole points out, “such profi les do not so much focus an investigation as
provide law enforcement offi cials a ready-made excuse for stopping whom-
ever they please.”30

The Supreme Court has allowed use of drug-courier profi les as guides for
the exercise of police discretion. Although it has indicated that the mere fact
that someone fi ts a profi le does not automatically constitute reasonable sus-
picion justifying a stop, courts routinely defer to these profi les, and the
Court has yet to object. As one judge said after conducting a review of drug-
courier profi le decisions: “Many courts have accepted the profi le, as well as
the Drug Enforcement Agency’s scattershot enforcement efforts, unquestion-
ingly, mechanistically, and dispositively.”31

It Pays to Play

Clearly, the rules of the game are designed to allow for the roundup of an
unprecedented number of Americans for minor, nonviolent drug offenses.
The number of annual drug arrests more than tripled between 1980 and
2005, as drug sweeps and suspicionless stops and searches proceeded in re-
cord numbers.32

Still, it is fair to wonder why the police would choose to arrest such an as-
tonishing percentage of the American public for minor drug crimes. The fact
that police are legally allowed to engage in a wholesale roundup of nonvio-
lent drug offenders does not answer the question why they would choose to
do so, particularly when most police departments have far more serious
crimes to prevent and solve. Why would police prioritize drug-law enforce-
ment? Drug use and abuse is nothing new; in fact, it was on the decline, not
on the rise, when the War on Drugs began. So why make drug-law enforce-
ment a priority now?

Once again, the answer lies in the system’s design. Every system of con-
trol depends for its survival on the tangible and intangible benefi ts that are
provided to those who are responsible for the system’s maintenance and ad-
ministration. This system is no exception.

At the time the drug war was declared, illegal drug use and abuse was not
a pressing concern in most communities. The announcement of a War on
Drugs was therefore met with some confusion and re sis tance within law en-
forcement, as well as among some con ser va tive commentators.33 The feder-

72 the new j im crow

alization of drug crime violated the con ser va tive tenet of states’ rights and
local control, as street crime was typically the responsibility of local law
enforcement. Many state and local law enforcement offi cials were less than
pleased with the attempt by the federal government to assert itself in local
crime fi ghting, viewing the new drug war as an unwelcome distraction. Par-
ticipation in the drug war required a diversion of resources away from more
serious crimes, such as murder, rape, grand theft, and violent assault—all of
which were of far greater concern to most communities than illegal drug use.

The re sis tance within law enforcement to the drug war created something
of a dilemma for the Rea gan administration. In order for the war to actually
work—that is, in order for it to succeed in achieving its political goals—it
was necessary to build a consensus among state and local law enforcement
agencies that the drug war should be a top priority in their hometowns. The
solution: cash. Huge cash grants were made to those law enforcement agen-
cies that were willing to make drug-law enforcement a top priority. The new
system of control is traceable, to a signifi cant degree, to a massive bribe of-
fered to state and local law enforcement by the federal government.

In 1988, at the behest of the Rea gan administration, Congress revised the
program that provides federal aid to law enforcement, renaming it the Ed-
ward Byrne Memorial State and Local Law Enforcement Assistance Pro-
gram after a New York City police offi cer who was shot to death while
guarding the home of a drug-case witness. The Byrne program was designed
to encourage every federal grant recipient to help fi ght the War on Drugs.
Millions of dollars in federal aid have been offered to state and local law en-
forcement agencies willing to wage the war. This federal grant money has
resulted in the proliferation of narcotics task forces, including those respon-
sible for highway drug interdiction. Nationally, narcotics task forces make
up about 40 percent of all Byrne grant funding, but in some states as much
as 90 percent of all Byrne grant funds go toward specialized narcotics task
forces.34 In fact, it is questionable whether any specialized drug enforce-
ment activity would exist in some states without the Byrne program.

Other forms of valuable aid have been offered as well. The DEA has offered
free training, intelligence, and technical support to state highway patrol
agencies that are willing to commit their offi cers to highway drug interdic-
tion. The Pentagon, for its part, has given away military intelligence and mil-
lions of dollars in fi repower to state and local agencies willing to make the
rhetorical war a literal one.

the lockdown 73

Almost immediately after the federal dollars began to fl ow, law enforce-
ment agencies across the country began to compete for funding, equipment,
and training. By the late 1990s, the overwhelming majority of state and local
police forces in the country had availed themselves of the newly available
resources and added a signifi cant military component to buttress their drug-
war operations. According to the Cato Institute, in 1997 alone, the Pentagon
handed over more than 1.2 million pieces of military equipment to local po-
lice departments.35 Similarly, the National Journal reported that between
January 1997 and October 1999, the agency handled 3.4 million orders of
Pentagon equipment from over eleven thousand domestic police agencies in
all fi fty states. Included in the bounty were “253 aircraft (including six- and
seven-passenger airplanes, UH-60 Blackhawk and UH-1 Huey helicopters,
7,856 M-16 rifl es, 181 grenade launchers, 8,131 bulletproof helmets, and
1,161 pairs of night-vision goggles.”36 A retired police chief in New Haven,
Connecticut, told the New York Times, “I was offered tanks, bazookas, any-
thing I wanted.”37

Waging War

In barely a decade, the War on Drugs went from being a political slogan
to an actual war. Now that police departments were suddenly fl ush with
cash and military equipment earmarked for the drug war, they needed to
make use of their new resources. As described in a Cato Institute report,
para military units (most commonly called Special Weapons and Tactics, or
SWAT, teams) were quickly formed in virtually every major city to fi ght the
drug war.38

SWAT teams originated in the 1960s and gradually became more com-
mon in the 1970s, but until the drug war, they were used rarely, primarily for
extraordinary emergency situations such as hostage takings, hijackings, or
prison escapes. That changed in the 1980s, when local law enforcement
agencies suddenly had access to cash and military equipment specifi cally for
the purpose of conducting drug raids.

Today, the most common use of SWAT teams is to serve narcotics war-
rants, usually with forced, unannounced entry into the home. In fact, in some
jurisdictions drug warrants are served only by SWAT teams—regardless of
the nature of the alleged drug crime. As the Miami Herald reported in 2002,

74 the new j im crow

“Police say they want [SWAT teams] in case of a hostage situation or a
Columbine-type incident, but in practice the teams are used mainly to serve
search warrants on suspected drug dealers. Some of these searches yield as
little as a few grams of cocaine or marijuana.”39

The rate of increase in the use of SWAT teams has been astonishing. In
1972, there were just a few hundred paramilitary drug raids per year in the
United States. By the early 1980s, there were three thousand annual SWAT
deployments, by 1996 there were thirty thousand, and by 2001 there were
forty thousand.40 The escalation of military force was quite dramatic in cit-
ies throughout the United States. In the city of Minneapolis, Minnesota, for
example, its SWAT team was deployed on no-knock warrants thirty-fi ve
times in 1986, but in 1996 that same team was deployed for drug raids more
than seven hundred times.41

Drug raids conducted by SWAT teams are not polite encounters. In count-
less situations in which police could easily have arrested someone or con-
ducted a search without a military-style raid, police blast into people’s
homes, typically in the middle of the night, throwing grenades, shouting,
and pointing guns and rifl es at anyone inside, often including young chil-
dren. In recent years, dozens of people have been killed by police in the
course of these raids, including el derly grandparents and those who are
completely innocent of any crime. Criminologist Peter Kraska reports that
between 1989 and 2001 at least 780 cases of fl awed paramilitary raids
reached the appellate level, a dramatic increase over the 1980s, when such
cases were rare, or earlier, when they were nonexistent.42 Many of these
cases involve people killed in botched raids.

Alberta Spruill, a fi fty-seven-year-old city worker from Harlem, is among
the fallen. On May 16, 2003, a dozen New York City police offi cers stormed
her apartment building on a no-knock warrant, acting on a tip from a confi –
dential informant who told them a convicted felon was selling drugs on the
sixth fl oor. The informant had actually been in jail at the time he said he’d
bought drugs in the apartment, and the target of the raid had been arrested
four days before, but the offi cers didn’t check and didn’t even interview the
building superintendent. The only resident in the building was Alberta, de-
scribed by friends as a “devout churchgoer.” Before entering, police deployed
a fl ash-bang grenade, resulting in a blinding, deafening explosion. Alberta
went into cardiac arrest and died two hours later. The death was ruled a ho-
micide but no one was indicted.

the lockdown 75

Those who survive SWAT raids are generally traumatized by the event.
Not long after Spruill’s death, Manhattan Borough President C. Virginia
Fields held hearings on SWAT practices in New York City. According to the
Village Voice, “Dozens of black and Latino victims—nurses, secretaries, and
former offi cers—packed her chambers airing tales, one more horrifying than
the next. Most were unable to hold back tears as they described police ran-
sacking their homes, handcuffi ng children and grandparents, putting guns
to their heads, and being verbally (and often physically) abusive. In many
cases, victims had received no follow-up from the NYPD, even to fi x busted
doors or other physical damage.”43

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 fi nding traces of marijuana in his garbage. Moments after
busting into the mobile home, police shot Bryant—who was unarmed—
kill ing 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 re-
action” as his other hand reached for handcuffs. A spokesman for the Be-
retta company called this unlikely because the gun’s double-action trigger
was designed to prevent unintentional fi ring. The Dodge County sheriff
compared the shooting to a hunting accident.44

SWAT raids have not been limited to homes, apartment buildings, or pub-
lic 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 offi cers
in SWAT team uniforms and bulletproof vests aim guns at their heads and
lead a drug-sniffi ng dog to tear through their book bags. The raid was initi-
ated 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 fi led. 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 Rea gan persuaded Congress to pass the Military
Cooperation with Law Enforcement Act, which encouraged the military to

76 the new j im crow

give local, state, and federal police access to military bases, intelligence, re-
search, weaponry, and other equipment for drug interdiction. That legisla-
tion 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 Rea gan’s National Security Decision Directive, which declared drugs a
threat to U.S. national security, and provided for yet more cooperation be-
tween 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 or ga nized
drug interdiction units on the freeways, and stop-and-frisk programs were set
loose on the streets. Generally, the fi nancial 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 tri-
pled in a short period of time, the arrests refl ect a surge in illegal drug activ-
ity, rather than an infusion of money and an intensifi ed enforcement effort.

One exception is a 2001 report by the Capital Times in Madison, Wiscon-
sin. The Times reported that as of 2001, sixty-fi ve 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 pro-
gram, as well as to federal programs that provide money to local police de-
partments for drug control. The paper explained that, in the 1990s, Wisconsin
police departments were given nearly a hundred thousand pieces of mili-
tary equipment. And although the paramilitary units were often justifi ed to
city councils and skeptical citizens as essential to fi ght 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 in-
centive 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

the lockdown 77

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 coun-
ty’s federal subsidy quadrupled too.45

Finders Keepers

As if the free military equipment, training, and cash grants were not enough,
the Rea gan administration provided law enforcement with yet another fi –
nancial 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 exis tence. Law enforcement
gained a pecuniary interest not only in the forfeited property, but in the
profi tability 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 in-
cluded 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 justifi ed 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 legisla-
tors reasoned, may shut down the traffi cking business for good. Over the
years, the list of properties subject to forfeiture expanded greatly, and the re-
quired connection to illegal drug activity became increasingly remote, lead-
ing 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.

78 the new j im crow

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 ad-
opted, the law governing civil forfeiture was so heavily weighted in favor of
the government that fully 80 percent of forfeitures went uncontested. Prop-
erty 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 prob able cause to believe that the property had somehow
been “involved” in a crime. The prob able cause showing could be based on
nothing more than hearsay, innuendo, or even the paid, self-serving testi-
mony of someone with interests clearly adverse to the property owner. Nei-
ther 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 of-
ten 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 fi ling 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 fi gure does not include drug task
forces 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 fre-
quently used to allow those with assets to buy their freedom, while drug us-
ers and small-time dealers with few assets to trade are subjected to lengthy
prison terms. In Mas sa chu setts, for example, an investigation by journalists
found that on average a “payment of $50,000 in drug profi ts won a 6.3 year
reduction in a sentence for dealers,” while agreements of $10,000 or more
bought elimination or reduction of traffi cking charges in almost three-fourths

the lockdown 79

of such cases.48 Federal drug forfeiture laws are one reason, Blumenson and
Nielsen note, “why state and federal prisons now confi ne large numbers of
men and women who had relatively minor roles in drug dis tri bu tion net-
works, 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 fi ne line exists between the lawful and the unlawful taking of
other people’s money and property—a line so thin that some offi cers disre-
gard the formalities of search warrants, prob able cause, and reasonable sus-
picion 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
offi cer, “more or less like a wolfpack,” driv ing up in police vehicles and tak-
ing “anything and every thing we saw on the street corner.”50 The offi cers
were under tremendous pressure from their commander to keep their arrest
numbers up, and all of the offi cers 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 every thing, 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 traffi c stops and found
that police had used traffi c violations as an excuse—or pretext—to confi s-
cate “tens of thousands of dollars from motorists against whom there [was]
no evidence of wrongdoing,” frequently taking the money without fi ling any
criminal charges.52 Similarly, in Louisiana, journalists reported that Louisi-
ana police engaged in massive pretextual stops in an effort to seize cash,
with the money diverted to police department ski trips and other unauthor-
ized uses.53 And in Southern Cal i fornia, a Los Angeles Sheriff ’s Department

80 the new j im crow

employee reported that deputies routinely planted drugs and falsifi ed police
reports to establish prob able cause for cash seizures.54

Lots of small seizures can be nearly as profi table, and require the expen-
diture of fewer investigative resources, than a few large busts. The Western
Area Narcotics Task Force (WANT) became the focus of a major investiga-
tion in 1996 when almost $66,000 was discovered hidden in its headquar-
ters. 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 lo-
cal newspaper to observe that “once again the offi cers 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 for-
feiture. 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 fi ve 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 dam-
age.57 Such cases were atypical but got the attention of Congress.

The Reform Act resulted in a number of signifi cant 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 signifi cant reform is the creation of an “innocent owner”

the lockdown 81

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 fi ction 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 signifi cantly 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 reason-
able 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 exam-
ple, 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 trans-
portation, 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 be-
ing 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 gov-
ernment. Oddly, someone who has actually been charged with a crime is en-
titled to the appointment of counsel in civil forfeiture proceedings, but those
whose property has been forfeited but whose conduct did not merit criminal

82 the new j im crow

charges are on their own. This helps to explain why up to 90 percent of for-
feiture 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 worth to get them back? If you
haven’t been charged with a crime, are you willing to risk the possibility that
fi ghting the forfeiture might prompt the government to fi le 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 investiga-
tion. 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 profi t 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 pecuni-
ary interest in the profi tability and longevity of the drug war. The basic struc-
ture of the system remains intact.

None of this is to suggest that the fi nancial rewards offered for police
participation in the drug war are the only reason that law enforcement de-
cided 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 war-
riors) 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.

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

the lockdown 83

anti-drug task forces our communities need.”60 Relatively little or ga nized
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 con-
trol are slim, often to the vanishing point. Defendants are typically denied
meaningful legal representation, pressured by the threat of a lengthy sen-
tence 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 benefi t 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 representa-
tion. In Gideon, the Supreme Court left it to state and local governments
to decide how legal ser vices should be funded. However, in the midst of a

84 the new j im crow

drug war, when politicians compete with each other to prove how “tough”
they can be on crime and criminals, funding public defender offi ces 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 de-
fenders 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 represen-
tation 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 offi ce has only two investigators for the 2,500 new felony cases and
4,000 new misdemeanor cases assigned to the offi ce 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 oper-
ated a “modern day debtor’s prison” by jailing poor people who are unable to
pay their fi nes 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 refl ect little or no recognition
that the accused is mentally ill or does not adequately understand En glish.
The fundamental right to a lawyer that Americans assume applies to everyone
accused of criminal conduct effectively does not exist in practice for count-
less people across the United States.”65

Even when people are charged with extremely serious crimes, such as
murder, they may fi nd themselves languishing in jail for years without meet-

the lockdown 85

ing 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 fi nally suc-
ceeded 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 in-
dicted murderers have a hard time getting meaningful representation, what
are the odds that small-time drug dealers fi nd 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 in-
digent 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 ap-
pears 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 eigh teen have the right to
legal assistance with any criminal charges fi led against them. In practice,
however, children routinely “waive” their right to counsel in juvenile pro-
ceedings. 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 offi cial in the criminal jus-

86 the new j im crow

tice 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 offi cial, who holds the keys to the jail-
house 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 fi le more charges against a defendant than can realistically be proven
in court, so long as prob able cause arguably exists—a practice known as
overcharging.

The practice of encouraging defendants to plead guilty to crimes, rather
than affording them the benefi t of a full trial, has always carried its risks and
downsides. Never before in our history, though, have such an extraordinary
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 re-
ceive if they took their case to trial would be fi ve, 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 fi rst-time drug offense in federal court is fi ve or
ten years. By contrast, in other developed countries around the world, a fi rst-
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 mandat-
ing 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 of-
fense carrying a mandatory sentence of ten to fi fteen years or life, prosecu-
tors 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 prob able cause but which they seriously
doubt they could ever win in court.69 They “load up” defendants with charges

the lockdown 87

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 en-
forcement by offering cash, putting them “on payroll,” and promising cuts of
seized drug assets, but also because ratting out co-defendants, friends, fam-
ily, or acquaintances is often the only way to avoid a lengthy mandatory mini-
mum 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 in-
formants 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 diffi cult 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 un-
derstatement, 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 man-
datory sentences, or how many are convicted due to lying informants and
paid witnesses, but reliable estimates of the number of innocent people cur-
rently 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 in-
nocent 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.

88 the new j im crow

The real point here, however, is not that innocent people are locked up.
That has been true since penitentiaries fi rst opened in America. The criti cal
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 fi shing expedi-
tions 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, confi –
dential informant who is trading the information for money or to escape
prison time. And once swept inside the system, people are often denied at-
torneys 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 discre-
tion 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
fl exibility—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 re-
entry will be extremely diffi cult, 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 indi-
vidual case.

the lockdown 89

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 rul-
ing 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 fi rst-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 mea sured 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 En gland.76 Remarkably, in the United States, a life
sentence is deemed perfectly appropriate for a fi rst-time drug offender.

The most famous Supreme Court decision upholding mandatory mini-
mum sentences is Lockyer v. Andrade.77 In that case, the Court rejected
constitutional challenges to sentences of twenty-fi ve years without parole
for a man who stole three golf clubs from a pro shop, and fi fty years without
parole for another man for stealing children’s videotapes from a Kmart store.
These sentences were imposed pursuant to Cal i fornia’s controversial three
strikes law, which mandates a sentence of twenty-fi ve years to life for recidi-
vists 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
offense, 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 Cal i fornia law professor Erwin Chemerinsky, noted
that the Court’s reasoning makes it extremely diffi cult 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 justifi ed as necessary to keep

90 the new j im crow

“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 Cal i fornia, a “repeat of-
fender” 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 fi rst, second, and even third strikes. For
example, a person arrested for possession of a substantial amount of mari-
juana, 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 posses-
sion 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 defen-
dant can easily face a sentence of fi fty, seventy-fi ve, or one hundred years to
life arising from a single case. In fact, fi fty years to life was the actual sen-
tence given to Leandro Andrade, whose sentence for stealing videotapes was
upheld by the Supreme Court.

The clear majority of those subject to harsh mandatory minimum sen-
tences in the federal system are drug offenders. Most are low-level, minor
drug dealers—not “drug kingpins.” The stories are legion. Marcus Boyd was
arrested after selling 3.9 grams of crack cocaine to a confi dential informant
working with a regional drug task force. At the time of his arrest, Marcus was
twenty-four years old and had been addicted to drugs for six years, beginning
shortly after his mother’s death and escalating throughout his early twenties.
He met the informant through a close family friend, someone he trusted. At
sentencing, the judge based the drug quantity calculation on testimony from
the informant and another witness, who both claimed they bought crack
from Marcus on other occasions. As a result, Marcus was held accountable
for 37.4 grams (the equivalent of 1.3 ounces) based on the statements made
by the informant and the other witness. He was sentenced to more than
fourteen years in prison. His two children were six and seven years old at the
time of his sentencing. They will be adults when he is released.79

Weldon Angelos is another casualty of the drug war. He will spend the rest
of his life in prison for three marijuana sales. Angelos, a twenty-four-year-old
record producer, possessed a weapon—which he did not use or threaten to
use—at the time of the sales. Under federal sentencing guidelines, however,
the sentencing judge was obligated to impose a fi fty-fi ve-year mandatory

the lockdown 91

minimum sentence. Upon doing so, the judge noted his reluctance to send
the young man away for life for three marijuana sales. He said from the
bench, “The Court believes that to sentence Mr. Angelos to prison for the
rest of his life is unjust, cruel, and even irrational.”80

Some federal judges, including con ser va tive judges, have quit in protest of
federal drug laws and sentencing guidelines. Face-to-face with those whose
lives hang in the balance, they are far closer to the human tragedy occa-
sioned by the drug war than the legislators who write the laws from afar.
Judge Lawrence Irving, a Rea gan appointee, noted upon his retirement: “If
I remain on the bench, I have no choice but to follow the law. I just can’t, in
good conscience, continue to do this.”81 Other judges, such as Judge Jack
Weinstein, publicly refused to take any more drug cases, describing “a sense
of depression about much of the cruelty I have been a party to in connection
with the ‘war on drugs.’”82 Another Rea gan appointee, Judge Stanley Mar-
shall, told a reporter, “I’ve always been considered a fairly harsh sentencer,
but it’s kill ing me that I’m sending so many low-level offenders away for all
this time.”83 He made the statement after imposing a fi ve-year sentence on
a mother in Washington, D.C., who was convicted of “possession” of crack
found by police in a locked box that her son had hidden in her attic. In Cal i-
fornia, reporters described a similar event:

U.S. District Judge William W. Schwarzer, a Republican appointee, is
not known as a light sentencer. Thus it was that everyone in his San
Francisco courtroom watched in stunned silence as Schwarzer, known
for his stoic demeanor, choked with tears as he anguished over sentenc-
ing Richard Anderson, a fi rst offender Oakland longshoreman, to ten
years in prison without parole for what appeared to be a minor mistake
in judgment in having given a ride to a drug dealer for a meeting with
an undercover agent.84

Even Supreme Court Justice Anthony Kennedy has condemned the harsh
mandatory minimum sentences imposed on drug offenders. He told attor-
neys gathered for the American Bar Association’s 2003 annual conference:
“Our [prison] resources are misspent, our punishments too severe, our sen-
tences too loaded.” He then added, “I can accept neither the necessity nor
the wisdom of federal mandatory minimum sentences. In all too many cases,
mandatory minimum sentences are unjust.”85

92 the new j im crow

The Prison Label

Most people imagine that the explosion in the U.S. prison population during
the past twenty-fi ve years refl ects changes in crime rates. Few would guess
that our prison population leapt from approximately 350,000 to 2.3 million
in such a short period of time due to changes in laws and policies, not
changes in crime rates. Yet it has been changes in our laws—particularly the
dramatic increases in the length of prison sentences—that have been re-
sponsible for the growth of our prison system, not increases in crime. One
study suggests that the entire increase in the prison population from 1980 to
2001 can be explained by sentencing policy changes.86

Because harsh sentencing is the primary cause of the prison explosion,
one might reasonably assume that substantially reducing the length of prison
sentences would effectively dismantle this new system of control. That
view, however, is mistaken. This system depends on the prison label, not
prison time.

Once a person is labeled a felon, he or she is ushered into a parallel uni-
verse in which discrimination, stigma, and exclusion are perfectly legal,
and privileges of citizenship such as voting and jury ser vice are off-limits.
It does not matter whether you have actually spent time in prison; your
second-class citizenship begins the moment you are branded a felon. Most
people branded felons, in fact, are not sentenced to prison. As of 2008, there
were approximately 2.3 million people in prisons and jails, and a staggering
5.1 million people under “community correctional supervision”—i.e., on
probation or parole.87 Merely reducing prison terms does not have a major
impact on the majority of people in the system. It is the badge of inferiority—
the felony record—that relegates people for their entire lives, to second-
class status. As described in chapter 4, for drug felons, there is little hope
of escape. Barred from public housing by law, discriminated against by
private landlords, ineligible for food stamps, forced to “check the box” indi-
cating a felony conviction on employment applications for nearly every
job, and denied licenses for a wide range of professions, people whose
only crime is drug addiction or possession of a small amount of drugs for
rec reational use fi nd themselves locked out of the mainstream society and
economy—permanently.

No wonder, then, that most people labeled felons fi nd their way back into

the lockdown 93

prison. According to a Bureau of Justice Statistics study, about 30 percent of
released prisoners in its sample were rearrested within six months of re-
lease.88 Within three years, nearly 68 percent were rearrested at least once
for a new offense.89 Only a small minority are rearrested for violent crimes;
the vast majority are rearrested for property offenses, drug offenses, and of-
fenses against the public order.90

For those released on probation or parole, the risks are especially high.
They are subject to regular surveillance and monitoring by the police and
may be stopped and searched (with or without their consent) for any reason
or no reason at all. As a result, they are far more likely to be arrested (again)
than those whose behavior is not subject to constant scrutiny by law en-
forcement. Probationers and parolees are at increased risk of arrest because
their lives are governed by additional rules that do not apply to everyone
else. Myriad restrictions on their travel and behavior (such as a prohibition
on associating with other felons), as well as various requirements of proba-
tion and parole (such as paying fi nes and meeting with probation offi cers),
create opportunities for arrest. Violation of these special rules can land
someone right back in prison. In fact, that is what happens a good deal of
the time.

The extraordinary increase in prison admissions due to parole and proba-
tion violations is due almost entirely to the War on Drugs. With respect to
parole, in 1980, only 1 percent of all prison admissions were parole violators.
Twenty years later, more than one third (35 percent) of prison admissions
resulted from parole violations.91 To put the matter more starkly: About as
many people were returned to prison for parole violations in 2000 as were ad-
mitted to prison in 1980 for all reasons.92 Of all parole violators returned to
prison in 2000, only one-third were returned for a new conviction; two-
thirds were returned for a technical violation such as missing appointments
with a parole offi cer, failing to maintain employment, or failing a drug test.93
In this system of control, failing to cope well with one’s exile status is treated
like a crime. If you fail, after being released from prison with a criminal
record—your personal badge of inferiority—to remain drug free, or if you
fail to get a job against all the odds, or if you get depressed and miss an ap-
pointment with your parole offi cer (or if you cannot afford the bus fare to
take you there), you can be sent right back to prison—where society appar-
ently thinks millions of Americans belong.

This disturbing phenomenon of people cycling in and out of prison,

94 the new j im crow

trapped by their second-class status, has been described by Loïc Wacquant
as a “closed circuit of perpetual marginality.”94 Hundreds of thousands of
people are released from prison every year, only to fi nd themselves locked
out of the mainstream society and economy. Most ultimately return to
prison, sometimes for the rest of their lives. Others are released again, only
to fi nd themselves in precisely the circumstances they occupied before,
unable to cope with the stigma of the prison label and their permanent
pariah status.

Reducing the amount of time people spend behind bars—by eliminating
harsh mandatory minimums—will alleviate some of the unnecessary suffer-
ing caused by this system, but it will not disturb the closed circuit. Those la-
beled felons will continue to cycle in and out of prison, subject to perpetual
surveillance by the police, and unable to integrate into the mainstream society
and economy. Unless the number of people who are labeled felons is dra-
matically reduced, and unless the laws and policies that keep ex-offenders
marginalized from the mainstream society and economy are eliminated, the
system will continue to create and maintain an enormous undercaste.

Angels and
Assholes:

The Construction
of Police Morality

We both deal with the evil in life—but the difference
is, with priests, there’s a big distancing from evil.
Priests only hear about it in the confessional and the
office. For the priest, it loses about nine-tenths of its
impact and its, its wham.

But with the police officers, with their experience
of evil, there’s an immediacy. They stand in it. They
touch it . . . they taste it . . . they smell it . . . they
hear it . . . they have to handle it. The priest only
knows about evil intellectually; the cop knows it in
his gut (Fletcher, 1991:5).

In his vocabulary of good and evil, a priest accustomed to working
with the police describes similarities between his and their work.
Though police may describe their work in grittier terms than such elo-
quent abstractions of good and evil, the sense of righteousness is present
and clearly visible to those who work with and around them.

By morality, I mean that police see themselves as representatives of a
higher morality embodied in a blend of American traditionalism, patrio-
tism, and religion. As moral agents, police view themselves as guardians
whose responsibility is not simply to make arrests but to roust out soci-
ety’s trouble-makers (Sykes, 1986). They perceive themselves to be a
superior class (Hunt & Magenau, 1993), or as Bouza notes (1990:17),
people “on the side of angels.” Morality is the sentiment that transforms
cops’ territories to dominions.

Cops’ morality sometimes carries with it a judgment of citizens as dif-
ferent and sometimes childlike. Klein provides an example of an encounter

201

Theme: Police Morality

450707 ch14 9/11/03 1:40 PM Page 201

that begins with a challenge to the authority of the police, and concludes
with the moral authority of the police reasserted. The challenge begins
during a normal tour of duty as a desk lieutenant.

One quiet Sunday afternoon I was the desk lieutenant on duty on a West
Side precinct when a popinjay of a man of about 60 years of age came
bounding into the station and up to the desk. “I want to file a complaint
against Patrolman Santos,” he announced. Before the man could contin-
ue, I interrupted with “Just a moment, please,” reached for my scratch
pad, and then asked the man for his name and address, noting the time
above the date on my pad. The man became livid, and the next few
words he uttered were accompanied by an openhanded pounding on
the desk that practically made them inaudible. . . . Fearing that the man
was working up to a heart attack, I resorted to my most unctuous man-
ner in an effort to calm him. That only seemed to infuriate him more, so
I picked up the big ‘blotter’ that lay before me, brought it down with a
resounding crash on the desk, and yelled, “SHUT UP!” at the top of my
voice. It worked.

The story continues with a discussion of the alleged brutality carried
out by patrolman Santos, in which it is apparent that the patrolman did
his utmost to resolve an argument between the complainant, his girl-
friend, and a rescuer.

After getting this part of the story, I told Mr. Serene he should be grate-
ful to the officer, not complaining against him, for after all hadn’t Santos
saved him from a likely beating at the hands of the would-be rescuer?

“Grateful! He took my girl away from me! I called her up this morning,
and she says she never wants to see me again! Santos made me look like
a bum, hauling me away in the police car!”

The officer informs the complainant that, under the circumstances he
saw no basis for a complaint and was not going to file one, further inflam-
ing Mr. Serene.

As Mr. Serene continued, fortissimo grosso, I walked out from behind
the desk, grabbed him by the elbow, and propelled him toward the door,
repeating firmly, “You will have to leave; you are interrupting and inter-
fering with our duties.”

At this point in the encounter, Mr. Serene refuses to accept this out-
come, thereby elevating the encounter to a new level.

I will not leave; you can’t make me. Where’s Santos? He made me lose
my girlfriend; I won’t leave until you bring him in. I know the law; you
can’t make me leave.

202 Understanding Police Culture

450707 ch14 9/11/03 1:40 PM Page 202

I took him up on the last declaration, trying a new tack: “You’re absolute-
ly right: I can’t make you leave. But if you don’t leave, I’ll arrest you for
causing a disturbance and preventing the orderly business of the
precinct.” The discourse ended a few minutes later with the arrest of my
would-be complainant, who remained adamant to the bitter end, which
consisted of an escorted ride in the patrol wagon to Night Court.

The story concludes with the acceptance of the moral authority of
the police by the complainant.

Some weeks later, a very chastened Mr. Serene signaled a general release
before a magistrate, and received a suspended sentence after apologiz-
ing to the sergeant, the detective, the clerical patrolman, Patrolman San-
tos, and this writer, all of whom had to appear in court before the judge
could be convinced that this apparently sane man had caused so much
trouble just because he had been embarrassed in front of his lady friend
(Klein, 1968:37-38).

This story serves not only as an example of the assertion of police
moral authority over a particular individual but of a particular kind of
individual—the person who complains about the way in which police do
their work. It is a story with archetypal dimensions—a citizen complains
about the behavior of a cop, and a police officer uses both his formal and
personal authority to reassert his authority, to make the malcontent
acknowledge his uninformed and inappropriate behavior.1 The behavior
of the citizen is shown to be child-like and in temper misdirected. The
officer is wholly vindicated.

Morality as Dramaturgy: High-Mindedness

This narrative will, indeed, be one of progress. Starting from beginnings
as humble as those of the infant city itself, it will, by an unbroken series
of steps, arrive at a breadth and perfection of system commensurate
with the modern glories of the American metropolis. This will be the
most remarkable feature of the story, that—speaking broadly—there is
neither defeat, failure, nor stagnation to be chronicled (Costello,
1972:1).

In these clear, simple terms Costello begins his chronicle of the his-
tory of the New York City police department. First written in 1885, 15
years before the turn of the twentieth century, the spirit is noncritical,
supportive without question. His 572-page history does not mention the
rampant corruption that characterized police practices in New York City
in this era, nor does he discuss the electioneering violence carried on by
police throughout this period. The mood he conveys is not complicated,

Angels and Assholes: The Construction of Police Morality 203

450707 ch14 9/11/03 1:40 PM Page 203

not disturbingly realistic. Its ardor is that of rallying around the flag, of the
celebration of Fourth-of-July patriotism. It is 100 percent pure high-mind-
ed morality.

Morality is sometimes viewed in noncritical, categorical ideas of right
and wrong. In its simplest form, the evilness of those in the wrong—the
other, evil—is under attack by the purity of the us, the angels (or vice
versa). Possible taint of that which is good is not considered: if good is
questioned, the credibility of the complainant is challenged. Fussell
(1989), developing the idea of “high-mindedness,” captures the clear and
wonderful simplicity of high-minded morality in his description of the
nonjudgmental public declarations of support for the allies in the Second
World War:

If elementary logic—the only kind that wartime could accommodate—
required the enemy to be totally evil, it required the allies to be totally
good—all of them. The opposition between this black and this white
was clear and uncomplicated, untroubled by subtlety or nuance, let
alone irony or skepticism (Fussell, 1989:164).

Fussell referred to this uncritical perception of forces of good and evil
as the quality of “high-mindedness,” that is, a belief in the “successful pur-
suit of uncomplicated High Purpose.”2 High-mindedness satisfied the
wartime need of the home front to justify the slaughter of British troops
on behalf of the “good cause.” Literary repositories of high-mindedness,
he noted, tended to become so uncritical as to be banal in their simplis-
tic acceptance of the virtue of the troops. In the press, the rhetoric of mil-
itary leaders, and among the civilian population, the moralistic dualism
was “total, without shading or complexity” (Fussell, 1989:164)

The thin art of high-minded rhetoric is often present in public
descriptions of the police and their adversaries. It typifies the often
uncritical way in which the police are presented to the outside world as
good guys, waging a war against the bad guys, criminals, or whoever fails
to unequivocally support the police. The common-place term “bad guy”
reveals this high-mindedness. Lawbreakers are rarely perceived to be ordi-
nary people that have committed bad behavior: they are themselves
wicked. The label is harsh and uncompromising.

The high-mindedness that we witness so frequently, coming from leg-
islators, from police executives, from other police representatives, from
telephone salesmen for the police charity ball for handicapped children,
and from city mayors and council, is dramaturgy. It is a way to gain the
support of the police for groups and individuals who want or need their
support. That high-minded rhetoric is vapid is not a weakness when one
considers its intent. It is pure high-purpose uncomplicated by shades of
moral uncertainty—a show of unwavering support.

204 Understanding Police Culture

450707 ch14 9/11/03 1:40 PM Page 204

Morality is more than a dramaturgy of high-mindedness. Morality is
also acted out daily by cops on the beat. The expectation that the police
will control crime at the societal level is enacted at the individual level as
the ability of the police officer to control his or her beat. The beat of an
officer is thus transformed into a moral responsibility, the officer’s domin-
ion. The notion of beat control is an imperative with a powerful moral
thrust. Only an asshole could disagree with how a police officer does his
or her job (Van Maanen, 1978).

The moral dimension of police practice is the heart of police culture
(Caldero, 1995). Morality is the first theme of solidarity; it is the theme
that energizes and makes imperative the aesthetic of coercive territorial
control. It justifies all that police do to control their turf, including right-
eous abuse of suspects and malcontents.

That the moral mandate and the use of coercive violence are inex-
orably interwoven in the same social fabric—territorial control—is
beyond question. The relationship between morality and coercion, how-
ever, is perceived differently by the police and their various audiences.
There has been an embarrassing though predictable tendency—some-
times less pronounced among the police themselves than among their
political advocates—to exploit the high-minded aspects of police morali-
ty to justify the misuse of coercion and the abuse of police authority for
political gain. The media are guilty of this (Ericson, 1991). Crime re-enact-
ment television shows “which combine news films of events, re-enact-
ment, voice-over narration by actors and actresses, and grainy video film-
ing with handheld cameras,” profess to simulate reality. In pure
high-mindedness we see television shows with titles such as “America’s
Most Wanted: America Fights Back” and “Cops.” Nowhere, of course, is
mentioned the moral dilemmas engendered by the use of police violence
in a democratic society (Manning, 1995:376). Media constructions are
inevitably high-minded, offering simple contrasts between good and evil,
black and white (literally and figuratively), us and them.

The police are implicated in the media’s narrow vision, of course, in
that they tend to manipulate the flow of information to develop the good-
bad contrast, revealing particular aspects of their work and obscuring
others (Ericson, 1989:139-140). The police may manipulate the image of
their work to fit supportive social sentiments.

Because society has come to learn that drug use is dangerous; that drug
dealers are well organized and heavily armed; that certain deviant seg-
ments of society are less deserving of the full protections of the law; and
that “others” present a threat to the social and moral order,
casting police actions within the context of fighting these groups makes
the concrete actions of police, even deviant actions, more acceptable to
the audience . . . For the larger public, the victim of police violence
must be cast in terms of dangerousness versus the stereotypic depiction
of the police as the “thin blue line” between order and anarchy (Kap-
peler, Sluder & Alpert 1994:106).

Angels and Assholes: The Construction of Police Morality 205

450707 ch14 9/11/03 1:40 PM Page 205

Kappeler and his colleagues suggested that police condone the per-
petuation of such high-mindedness to obscure a closer inspection of
rough and brutal police behavior in police-citizen interactions. High-
mindedness, with its hidden stigmatization of classes of citizens as bad
guys, justifies over-aggressive police behavior and provides the police
with retrospective justification for reprehensible behavior. Who can ques-
tion heavy-handed police behavior when it is against some scumbag that
probably deserves it anyway and just might think twice next time? Not
considered is whether the scumbag actually did something that broke the
law, threatened the public peace, whether the law itself should be ques-
tioned, or if the police should have free-wheeling authority to use vio-
lence at whim.

Police executives, speaking to a public audience and to the troops
themselves, frequently implore such high-mindedness. Through moralis-
tic exhortations, they try to show that they are “one of the boys.” Consid-
er former Chief (of the Los Angeles Police Department) Daryl Gates’
speech to graduating recruits.

“I have chiefs all over the country with these badge collections,” says
Daryl Gates, now nearly shouting as he reaches the apex of his address.
“And they’re forever coming up to me and saying, “Hey! Can I get a
badge from the LAPD? It’s the only one I don’t have.” And I tell them
proudly, “That’s the only one you’re not going to get. Unless,” says Daryl
Gates, pounding the podium, “you wanna go through the Los Angeles
Police Academy—If-You-Are-Qualified-Chief! . . . If you are qualified”
(Domanick, 1994:17).

Such exhortations are not wholly innocent of underlying motive. That
chiefs have limited control over the day-to-day behavior of line officers
has been widely cited. As Chief Gates was to discover in early March of
1991, when the first news of the Rodney King police brutality case
splashed across the nation’s airwaves, the way a chief finds out about
what officers are doing is often like the rest of us—through the newspa-
pers. Control over the behavior of line personnel during field duty is mea-
ger at best, and the wide influence of police labor representation has
given them a means to resist bureaucratic oversight. Chiefs have to dis-
play their loyalty to the troops in appropriate ways to insure support:

The modernizing chief is constrained, therefore, to make at least sym-
bolic obeisance to police solidarity by demonstrating that (he) is a
“cop’s” cop, as well as a devotee of systems analysis . . . One of the ways
he does this is by emphasis in his dress and bearing—the policeman’s
chief social tool—the ability to command personal respect (Bordua &
Reiss, 1986:34).

206 Understanding Police Culture

450707 ch14 9/11/03 1:40 PM Page 206

Muir: Maturity in the Face of Paradox

In spite of the high-mindedness of police advocates, the police them-
selves wrestle with a morality substantially more complex than good-guy
bad-guy distinctions. Morality is easy in the abstract and in the extreme
case, when the bad-guys are known and what they have done is clearly
reprehensible. Such post-hoc arm-chair moralizing, however, is no pre-
scription for the bulk of police-citizen encounters. Police-citizen encoun-
ters are not characterized by certainty, but uncertainty. Offenders do not
advertise their identity to the police. Police-citizen interactions, in which
the citizen may also be an offender, are characterized by secrecy, suspi-
cion, and unpredictability.

Most bad guys are not heavyweight predators, but bantam-class mis-
demeanants and, to use Van Maanen’s (1978) terminology, viewed as “ass-
holes” whose culpability lies in an officer’s interpretation of vague laws
such as interfering with an officer or creating a public nuisance. In such
encounters, where and when is the use of coercion morally justified? This
is a more difficult question, yet an everyday one that defines much of the
police culture. To ponder morality at this level is to begin to understand
what the police are about.

Muir (1977) has put forth an eloquent model of police morality. Muir
recognized that police confronted situations that did not fall neatly into
fixed moral categories. Simple ideas of good and bad provided little direc-
tion for officers, who frequently had to balance their moral convictions
against the ordinary problems that overwhelmed many of the people
with whom they came into contact. Categoric codes of right and wrong,
conceptualized as officer safety, might justify the use of deadly force in a
confrontation with an armed bank robber, but such principles provided
little insight into, for example, more common family conflicts, where out-
comes were unpredictable and simple ideas of right and wrong provided
scant direction on what to do. A more complex idea of morality was
needed to help cops think about such encounters.

Muir created a model of police use of force that he called the extor-
tionate transaction. In a brilliant epiphany, he manipulated the model into
four incongruities he named the “paradoxes of coercion.” The first of
these is the paradox of dispossession. “The less one has, the less one has
to lose.” The paradox in an antagonistic encounter is that the victim with
nothing is less vulnerable to coercive threats: “In bargaining, weakness is
often strength” (Muir, 1977:38-39).

The second, “the paradox of detachment,” states that “the less the vic-
tim cares about preserving something, the less the victimizer cares about
taking it hostage.” This paradox deals with the victim and reveals the
problematic nature of unfolding contingencies in an encounter: A victim-
izer “can’t always perceive clearly what value a victim places on his own
possessions” (Muir, 1977:40-41).

Angels and Assholes: The Construction of Police Morality 207

450707 ch14 9/11/03 1:40 PM Page 207

The third is the paradox of face: “the nastier one’s reputation, the less
nasty one has to be.” This paradox is “elementally psychological. The suc-
cessful practice of coercion is not to injure but to employ the threat to
injure.” Paradoxical is that violence is effective, not in its presence, but in
its absence. All is threat and bluster. The risk, of course, is that someone
will call the bluff. Unfortunately, this can destroy either party: to save face
in the calling of a bluff “is to manifest malevolence and respond cruelly
and destructively, even if it means risking one’s own destruction” (Muir,
1977:42). The paradox is based on the threat of behavior that, if carried
out, destroys the extortionate transaction.

The fourth is the paradox of irrationality: “The more delirious the
threatener, the more serious the threat: the more delirious the victim, the
less serious the threat.” The paradox is that “being sensible and appearing
so may be a liability in an extortionate world, and not knowing enough
to know better may be an asset” (Muir, 1977:43).

Muir observed that these four paradoxes turn conventional ideas of
morality on their head. Categoric ideas of right and wrong became prob-
lematic. Where is morality to be found, if the simple use of coercion to
achieve good ends is thwarted by circumstances that contradict its effec-
tiveness? Morality was to be found in an officer’s talent in manipulating
coercive authority to achieve good ends, without being overwhelmed by
either the passionate pursuit of good ends or by an overwhelming sensi-
tivity that he called perspective and that turned all issues of right and
wrong into shifting shades of uncertainty.3 Passion, he argued, enabled
officers to integrate coercion into their morals. The limits of moral pas-
sion were in the unprincipled abandonment of ethical concerns of civi-
lized life. Without guilt, he noted, there could be no conscience. Officers,
he admonished, also needed to develop perspective, “a comprehension of
the suffering of each inhabitant of the earth, and a sensitivity of man’s
yearning for dignity . . .” (Muir, 1977:50). The principled balance of pas-
sion and perspective promoted maturity, a moral balance that reflected
an officer’s ability to reconcile himself to the use of force without being
overwhelmed by its corrupting effects.

The strength of Muir’s formulation is linking the four paradoxes to his
adaptation of Weber’s professional political model. The use of paradox
was an eloquent statement of the unpredictability in police-citizen con-
tacts. One of Muir’s underlying themes, the ability to envision outcomes
precisely the opposite than intended, was a skill that enabled an officer
to adapt to the cascading contingencies that characterize many police-cit-
izen encounters. Muir’s paradoxes were ironies. They implicitly asked “Is
there a way in which what I am doing is going to have precisely the oppo-
site effect from what I intend?”

Morality flows from police officer’s abilities to adjust their use of coer-
cion to these paradoxical encounters. Morality, like heaven, is in the
details, in the moment-by-moment adjustment to changing circum-

208 Understanding Police Culture

450707 ch14 9/11/03 1:40 PM Page 208

stances, without losing control in an explosion of coercive force. Morali-
ty is played out as gamesmanship, and officers develop strategies to min-
imize their use of force in order to maximize their effectiveness.

Muir’s model is a powerful heuristic, strong medicine for advising
future officers about the corrupting effects of power. It is also an admo-
nition for cops to sharpen their senses for ambiguity, misunderstandings,
the unpredictable, and the ironic. Ultimately however, Muir’s model fails
as a guide for understanding police culture. His model is intended to
teach officers how to think about their use of coercion in terms different
from simple ideas of right/wrong, moral superiority, good guy/bad guy
imagery. But the morality is post hoc, constructed in the replay of events
past. When officers approach an ambivalent encounter, their behavior is
not conditioned by paradoxical ideas of morality. It is conditioned by
edge control, minimizing threats to personal danger, resolving the
encounter, avoiding excessive paperwork, and getting on with something
more interesting. Police work is more righteous than Muir’s typology sug-
gests, as Van Maanen (1978) recognized in the following article on a topic
of eternal police interest: what to do about assholes. Muir sought an ide-
ally moral officer, comfortable yet hesitant to use force when other solu-
tions would achieve the same goal. Van Maanen (1978) recognized the rit-
ualistic aspects of the use of force, and gained a better understanding of
police culture.

Van Maanen: Righteousness and the Asshole

Van Maanen’s classic paper titled “The Asshole” (1978) represented a
fundamental rethinking of police use of coercive force. Van Maanen chal-
lenged the prevailing belief at the time that police use of force was direct-
ed primarily at criminal suspects. In his analysis of police overuse of coer-
cion, he noted that police tended to focus, not on suspects, but on
big-mouths, individuals who had not committed a legal violation but who,
in their behavior, displayed resentment about the intrusion of the police
into their affairs. His seminal paper captured the moral dimension of the
use of coercion—police believe that they exist, in part, to protect the
world from assholes.

Assholes, Van Maanen argued, represented a type of individual that
organized a great deal of police activity. But a cop could not know who
an asshole was until he encountered him or her. The process of labeling
someone an asshole emerged in concrete encounters with citizens. The
consequence of the label was an increased likelihood of street justice.

Van Maanen argued that the label “asshole” arose in the context of
immediate situations, and was tied to observable social action. These sit-
uations were everyday police-citizen encounters. The stigmatization
process—by which individuals were stigmatized as assholes, had three

Angels and Assholes: The Construction of Police Morality 209

450707 ch14 9/11/03 1:40 PM Page 209

phases. The first phase was called affront and occurred when a police
officer’s authority was questioned by a citizen. A beer-guzzling citizen in
a city park that responds to a police order to pour out the beer by pour-
ing it over the officer’s shoes, for example, has initiated a process that car-
ries the risk of being labeled an asshole. This is a critical juncture in the
labeling process:

any further slight to a[n] officer, however subtle, provides sufficient evi-
dence that he may be indeed be dealing with a certifiable asshole, and
the situation is in need of rapid clarification (Van Maanen, 1978:229).

The second stage, clarification, represents the officer’s effort to deter-
mine what sort of individual they are dealing with. Clarification involves
the resolution of two implicit questions: (1) does the citizen know what
they are doing? and (2) could they have acted differently under the cir-
cumstances? If the answer to both of these questions was yes, the person
risked being labeled sub-human in a scatologically specific way, and
became vulnerable to street justice. The third stage, remedy, was a typol-
ogy of police behavioral responses that flowed from the clarification of the
incident. Those that were labeled assholes were the most likely recipients
of street justice, by which Van Maanen meant placement under question-
able arrest, violence, and other rude attention-getting behaviors.

The asshole, Van Maanen argued, was a term that contained a great
deal of meaning for the police. The label emerged from the need to main-
tain control in street encounters, and from a moral imperative to assert
the authority of the state when it was questioned. The asshole thus orga-
nized much police work, and provided police with an expressive outlet
in the absence of so-called “real” police work.

The term asshole may be the most ubiquitous celestial body in a cop’s
gritty cosmology. A major city in the southwest maintains a list of indi-
viduals that are perceived to be troublemakers on police calls for service.
This list is located in the filing cabinet under the letter “A.” Can you guess
why? Bouza (1990) also noted the special utility of disorderly conduct
statutes for those whom the police have defined as “assholes.” One would
be hard-pressed to encounter officers from any city in the United States
that did not share a common vision of who assholes were.

I have frequently described to students Van Maanen’s (1978) vision of
the concrete way the label “asshole” arises in street encounters. I have
been as frequently chastised by student-cops for failing to understand the
term. I now suspect that Van Maanen, while providing an excellent (and
titillating) example of ethnography, subtly missed an important aspect of
the labeling process. Van Maanen’s ideas of the process by which citizens
are labeled assholes makes perfect sense, but only under the condition
that an officer begins an encounter with a naïve or neutral state of mind.
Officers, however, do not do this. When they enter into a situation involv-

210 Understanding Police Culture

450707 ch14 9/11/03 1:40 PM Page 210

ing a citizen, they already have a pretty good idea about who is an asshole;
more than likely they had this idea before they became cops. Nor are
police-citizen encounters neutral events; police talk to citizens because
something has gone sour and the police want something they think the cit-
izen has; witness testimony or criminal involvement, for example.

Van Maanen, I think, overlooked the way in which police culture rein-
forces a common moral sensibility in a circular logic of asshole identifi-
cation and subsequent retaliatory action that verifies that the individual
was indeed an asshole. Some cops may wait and see what citizens do
before labeling them in some way. However, after thousands of encoun-
ters cops have a pretty good read of citizens. Many citizens are labeled
assholes before the encounter even begins, and a self-fulfilling logic will
verify at some point in the encounter that they indeed are assholes.

Van Maanen suggested that wrongdoers were not necessarily ass-
holes; they frequently wanted to minimize problems with the police. Yet
the police frequently treat lawbreakers roughly, justifying abusive treat-
ment of suspects in terms of police officer safety. Anyone that has wit-
nessed a police bust of a so-called drug house could not conclude that the
police were treating inhabitants any kinder than Van Maanen’s police
treated assholes. What Van Maanen missed is that all lawbreakers are ass-
holes, not just those who disagree with an officer’s definition of a situa-
tion. Because an offender has violated the law, they have pretty much
established that they have a different idea of appropriate behavior from
the legal ideal cops are expected to uphold.

As a colleague pointed out, “people don’t end up being assholes. Every-
one starts out as an asshole, and cops will let some people off the hook,
depending on their behavior.” In other words, Van Maanen (1978) had the
labeling process backwards. Within a few years after joining the force,
some cops will see all citizens as assholes. Every situation is confronted
with the presumption that an officer is dealing with an asshole. One of
Fletcher’s confidants captures this sentiment in the following comment:

People lie to us eight hours a day. Everybody lies to us: offenders, vic-
tims, witnesses. They all lie to the police. It gets so bad, you go to a
party, somebody comes up to talk to you. You’re thinking, “Why is this
guy saying this to me? What’s his game?” You can’t turn it off (Fletcher,
1991:278).

Before long, other police officers are assholes too. You are at roll call
and hear your buddy make the same wisecrack for the one-thousandth
time, and you think “Jeez, that guy’s an asshole.” One morning you look at
yourself in a mirror and you realize that there is an asshole looking back
at you. At this point the term asshole becomes so universal that it loses
all meaning. Even the angels are assholes. So what.

Angels and Assholes: The Construction of Police Morality 211

450707 ch14 9/11/03 1:40 PM Page 211

Endnotes

1 The Lieutenant in this example noted that there were valid incidents of police abuse, but
that they were in the statistical minority. Generally, I have observed that officers will
acknowledge the existence of police abuse in the abstract, but specific incidents that
implicate known officers are generally denied or questioned.

2 Quoting Eric Severeid 20 years later, Fussell (1989:163) notes that the high-minded spir-
it continued unabated: “If that fight was not holy, if it was not absolutely true that the con-
test was between good and evil, then no battle ever was such.”

3 Muir adopted this perspective from Weber (1946).

212 Understanding Police Culture

450707 ch14 9/11/03 1:40 PM Page 212

The Lockdown

C
op

yr
ig

ht
©

2
01

0.
N

ew
P

re
ss

, T
he

. A
ll

rig
ht

s
re

se
rv

ed
.

t h e l o c k d o w n 59

We begin our exploration of the drug war at the point of entry—arrest by
the police—and then consider how the system of mass incarceration is

60 t h e n e w j i m c r o w

Rules of the Game

Most Americans do not know what the Fourth Amendment of the U.S.
Constitution actually says or what it requires of the police. It states, in its
entirety:

t h e l o c k d o w n 61

For our purposes here, we limit our focus to the legal rules crafted by the

62 t h e n e w j i m c r o w

Unreasonable Suspicion

t h e l o c k d o w n 63

Just Say No

64 t h e n e w j i m c r o w

Prior to the Bostick decision, a number of lower courts had found absurd the
notion that “reasonable people” would feel empowered to refuse to answer

t h e l o c k d o w n 65

Poor Excuse

66 t h e n e w j i m c r o w

t h e l o c k d o w n 67

68 t h e n e w j i m c r o w

Kissing Frogs

t h e l o c k d o w n 69

70 t h e n e w j i m c r o w

t h e l o c k d o w n 71

As Cole points out, “such profi les do not so much focus an investigation as
provide law enforcement offi cials a ready-made excuse for stopping whom-
ever they please.”30

It Pays to Play

72 t h e n e w j i m c r o w

t h e l o c k d o w n 73

Waging War

74 t h e n e w j i m c r o w

t h e l o c k d o w n 75

76 t h e n e w j i m c r o w

t h e l o c k d o w n 77

Finders Keepers

78 t h e n e w j i m c r o w

t h e l o c k d o w n 79

The Shakedown

80 t h e n e w j i m c r o w

employee reported that deputies routinely planted drugs and falsifi ed police
reports to establish prob able cause for cash seizures.54

Arguably the most signifi cant reform is the creation of an “innocent owner”

t h e l o c k d o w n 81

82 t h e n e w j i m c r o w

t h e l o c k d o w n 83

Legal Misrepresentation

84 t h e n e w j i m c r o w

Even when people are charged with extremely serious crimes, such as
murder, they may fi nd themselves languishing in jail for years without meet-

t h e l o c k d o w n 85

Bad Deal

86 t h e n e w j i m c r o w

t h e l o c k d o w n 87

88 t h e n e w j i m c r o w

Time Served

t h e l o c k d o w n 89

Mandatory sentencing laws are frequently justifi ed as necessary to keep

90 t h e n e w j i m c r o w

t h e l o c k d o w n 91

Some federal judges, including con ser va tive judges, have quit in protest of
federal drug laws and sentencing guidelines. Face-to-face with those whose
lives hang in the balance, they are far closer to the human tragedy occa-
sioned by the drug war than the legislators who write the laws from afar.
Judge Lawrence Irving, a Rea gan appointee, noted upon his retirement: “If
I remain on the bench, I have no choice but to follow the law. I just can’t, in
good conscience, continue to do this.”81 Other judges, such as Judge Jack
Weinstein, publicly refused to take any more drug cases, describing “a sense
of depression about much of the cruelty I have been a party to in connection
with the ‘war on drugs.’ ”82 Another Rea gan appointee, Judge Stanley Mar-
shall, told a reporter, “I’ve always been considered a fairly harsh sentencer,
but it’s kill ing me that I’m sending so many low-level offenders away for all
this time.”83 He made the statement after imposing a fi ve-year sentence on
a mother in Washington, D.C., who was convicted of “possession” of crack
found by police in a locked box that her son had hidden in her attic. In Cal i-
fornia, reporters described a similar event:

92 t h e n e w j i m c r o w

The Prison Label

No wonder, then, that most people labeled felons fi nd their way back into

t h e l o c k d o w n 93

This disturbing phenomenon of people cycling in and out of prison,

94 t h e n e w j i m c r o w

craigmeadows
Highlight

Turn in your highest-quality paper
Get a qualified writer to help you with

“ essay ”

Get high-quality paper

NEW! AI matching with writer

Hire a Writer

Client Reviews

4.9

Sitejabber

4.6

Trustpilot

4.8

Our Guarantees

100% Confidentiality

Information about customers is confidential and never disclosed to third parties.

Original Writing

We complete all papers from scratch. You can get a plagiarism report.

Timely Delivery

No missed deadlines – 97% of assignments are completed in time.

Money Back

If you're confident that a writer didn't follow your order details, ask for a refund.

New to Your Trusted Assignment Help Service? Sign up & Save

Calculate the price of your order

Type of paper needed:

Pages:

You will get a personal manager and a discount.

Academic level:

We'll send you the first draft for approval by at

Total price:

$0.00

Power up Your Academic Success with the
Team of Professionals. We’ve Got Your Back.

Power up Your Study Success with Experts We’ve Got Your Back.

Order Now Order Now