Rya Jetha (PO ’23)
Racism and anti-Blackness have played a long and persistent role in the history of the United States, from its founding to the present. The deaths of George Floyd, Breonna Taylor, Tony McDade, and Ahmaud Arbery—among countless others—as well as the national movement in response, demand our attention. This article is part of a series that seeks to explore and illuminate issues of racial justice, and in particular, to examine how racism often manifests in law and public policy. We invite you to join us and contribute, and we look forward to learning together.
Earlier this month, Michelle Alexander, author of the bestselling book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, wrote an opinion piece in the New York Times called “America, This Is Your Chance.” She argued that the only way we can salvage our democracy is by understanding how our racial history contributes to our racial present — the Donald Trump presidency and the murder of George Floyd would not have been possible if the United States had committed itself to reparations and reconciliation after the civil war, and had not repeatedly re-imagined systems of racialized control in America.
“It’s not enough to learn the broad outlines of this history,” Alexander wrote in her Op-Ed before listing several books, articles and films that contextualize our current political moment. On the list are documentaries such as “Whose Streets?” which explores the aftermath of Michael Brown’s murder and the events in Ferguson, and Ava Duvernay’s film “13th” (available on Netflix), which discusses the criminalization of Black Americans and the explosion of prison populations. Also included on the list are Ibram X. Kendi’s books How to Be An Antiracist and Stamped, and Angela Davis’s Women, Race and Class, which have soared to the top of national bestsellers lists along with Alexander’s own book, The New Jim Crow.
As articles, blogs and social media posts circulate with resource recommendations for learning about Black history, anti-racism, and anti-colourblindness, Alexander’s own book is a fantastic resource for understanding how racial caste systems have been perpetuated through time. The New Jim Crow dives into the anatomy of America’s racialized caste system, where an intricate web of laws, politics, customs, and institutions that claim to be “colorblind” work to create a racial undercaste of Black Americans. These systems of oppression transform over time — as one system of racial control appears to die, such as slavery or Jim Crow, another system, such as mass incarceration, replaces it, specifically tailored to the socio-political needs of the time. As Alexander writes in the introduction of her book, “there is a certain pattern to the births and deaths of racial caste in America,” echoing what W.E.B. Du Bois observed in his 1935 book Black Reconstruction in America: “[T]he slave went free; stood a brief moment in the sun; then moved back again toward slavery.”
How has the modern system of racial oppression — mass incarceration — managed to pull so many black people away from the sun? Wasn’t America becoming less racist? Didn’t the presidency of Barack Obama signal the beginning of “post-racial” politics? The New Jim Crow sheds light on how the highest court in the land has been complicit in legitimizing the contemporary system of racial control in America. Since President Ronald Reagan announced the War on Drugs in 1982, the Supreme Court has failed to protect the “discrete and insular” rights of minorities in America by adopting rules that weaken the Fourth Amendment and overwhelmingly implicate people of color within the system of mass incarceration.
The Fourth Amendment of the US Constitution states that all people have the right to be secure “against unreasonable searches and seizures” unless a warrant is issued “upon probable cause, supported by oath or affirmation.” The history of the Fourth Amendment can be traced back to the British practice of issuing “general warrants” to go after political enemies in England. In the colonies, this practise was adapted to search for goods on which taxes had not been paid. The “general warrants” of England were replaced with “writs of assistance” in the colonies, allowing authorities to enter any place to search for “prohibited and uncustomed” goods.
The writs gave English authorities immense power — once they were issued, they could be used anytime in the specified person’s lifetime and six months after they died, even when authorities did not have any reason to conduct a search. A series of civil actions in England in the 17th and 18th centuries, however, led to the limiting of both “general warrants” and “writs of assistance.” Saman’s Case (1603) and Entick v. Carrington (1705) popularized the idea that “every man’s house is his castle,” meaning every man had the right to protect himself, his home, and his property against unreasonable searches and seizures by the government. This maxim became one of the most deeply rooted principles in Anglo-American jurisprudence, with the United States Supreme Court stating that it was “one of the landmarks of English liberty,” and a guide to understanding the Fourth Amendment.
Since the War on Drugs was declared, the Supreme Court has systematically abridged rights guaranteed by the Fourth Amendment to facilitate the War on Drugs. Supreme Court Justice Thurgood Marshall even warned that the rollback of constitutional rights granted to citizens by the Fourth Amendment has been so extensive, that a virtual “drug exception” exists within the Bill of Rights. Every man’s house is no longer his castle. By the end of the Supreme Court’s 1990-91 term, Justice John Paul Stevens noted in his dissension of California v. Acevedo that “in the years [from 1982 to 1991], the Court has heard arguments in 30 Fourth Amendment cases involving narcotics. In all but one, the government was the petitioner… in all except three, the Court upheld the constitutionality of the search or seizure… this Court has become a loyal foot soldier in the Executive’s fight against crime.”
Take the example of Florida v. Bostick (1991), which involved twenty-eight year old Black American Terrance Bostick. He was found with a pound of cocaine during an arbitrary police-sweep on a bus in Fort Lauderdale. Police-sweeps were a common feature of the War on Drugs — police routinely conducted large volume searches on interstate and intrastate buses without informing passengers that they could withhold consent from being searched. One officer claimed they conducted over three thousand bag searches over a nine month period. When Bostick’s case reached the Florida Supreme Court on appeal, it ruled that the police officers who had found the cocaine in Bostick’s bag had violated the Fourth Amendment because they did not have reasonable motive to search his bag. The court compared the high volume searches undertaken by the police to actions performed under authoritarian regimes, writing “the evidence in this case has evoked images of other days, under other flags, when no man traveled his nation’s roads or railways without fear of unwarranted interruption… This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it white supremacist South Africa.”
When Florida v. Bostick was taken to the Supreme Court, they reversed the decision, arguing that Bostick did consent to the police search of his bag, meaning that his bag wasn’t really “seized” within the scope of the Fourth Amendment. The Court also announced this decision was to apply to all future drug sweeps, regardless of the circumstances of the targeted official. The Supreme Court was well aware of the implications of its ruling. Long before, it had acknowledged that police searches depend on people being ignorant of their rights or feeling powerless against the police to say “no”. As Boston University law professor Tracy Maclin put it, “common sense teaches that most of us do not have the chutzpah or stupidity to tell a police officer to ‘get lost’ after he has stopped us and asked us for identification or questioned us about possible criminal conduct.” The Supreme Court saw this opportunity to capitalise on people’s fear and ignorance, eroding the Fourth Amendment to allow police to stop anyone, anywhere to be searched with their consent. In this case, “with their consent” is a near certainty, as one study found that over 95 percent of people consent to searches when they are asked to do so.
Another landmark case that weakened Fourth Amendment protections was Ohio v. Robinette. In 1995, Robert Robinette was pulled over by a police officer while driving on the Interstate 70 allegedly for speeding. The officer ordered Robinette out of his vehicle and asked for his “consent” to search his car. The officer found marijuana and a single methamphetamine pill and arrested Robinette for possession of a controlled substance. When the case came to the Ohio Supreme Court, they expressed discomfort that traffic stops were being increasingly used in the War on Drugs to conduct “consensual” searches, and ruled that police must end a pullover by informing the driver they are free to leave before trying to gain their consent to search the vehicle. The US Supreme Court did not agree with this requirement. They ruled that the Fourth Amendment should not limit any police searches in the War on Drugs — police do not need to inform people of their rights, and they can use traffic stops to search for drugs. They even ruled that drivers can be arrested for refusing to consent to a search.
How did these Supreme Court rulings perpetuate a racial undercaste in America? On the surface, they seem to affect all people equally — anyone can be searched on an interstate bus, anyone can be pulled over for speeding on a highway. But that’s not how it worked, because the War on Drugs was not only a war waged by the government, but also by the media. In fact, the media did most of the work. The War on Drugs was launched at a time when illegal drug use was on the decline, but it was an exciting story — one that the media considered “the hottest combat reporting story to come along since the end of the Vietnam War.” Stories that the media published about the War on Drugs were sensationalized, with glaring racial subtext. They contained pictures of Black “crack whores,” Black “crack babies,” and Black “gangbangers.” Black women were portrayed as selfish welfare queens and Black men were vilified as predators and criminals. The media worked tirelessly to solidify the idea that drug crime is Black and brown, leading to the “criminalblackman,” a term coined by legal scholar Kathryn Russell, being embedded in the public conscience. So naturally, when police officers were bestowed with discretionary powers by the US Supreme Court to conduct high-volume bus and car searches to find drugs, they act on “hunches” about who may be possessing drugs informed by stereotypes, implicit bias, and media exposure.
With increasing calls from activists to “defund the police,” and redirect funds to welfare services for marginalized communities, few arguments supporting defunding the police have considered the role of the Supreme Court in emboldening the police over the past four decades. Most arguments consider the astronomical amount of money spent on policing in the US, as The Intercept’s Mehdi Hasan discussed on his podcast, Deconstructed: “The amount of money that is spent on policing in this country is stunning… $115 billion nationwide; it’s tripled over the past 40 years, even as crime has fallen. The New York Police Department, the NYPD… has the biggest police budget in the country, $6 billion, which is more than the city’s Departments of Health, Homeless Services, Youth Services, and Employment Services combined — combined! It’s bigger than the World Health Organization’s budget. Bigger than the GDP of 50 countries around the world.”
Do larger police budgets than any other country in the world make us safer? No! America’s murder rate is four times Canada’s. The number of rapes, adjusted for population, is four times higher in American than in Denmark. And fatal police shootings? The number of people shot dead by the police in 24 years in England and Wales was the same number as people shot dead in the first 24 days of 2015 in the US.
To live in America is to live in a security state. A state that prioritizes social destruction — war, prisons, and police — over quality education, ending homelessness, and reducing income inequality. Policing costs $100 billion annually, while $20 billion proposals to end homelessness, $26 billion plans to create universal prekinder programs, and $70 billion plans to eliminate poverty for families with children are dismissed as ‘too expensive’ and ‘unrealistic’. It is time to re-imagine public safety, to demand that our budgets reflect justice for all. Taxpayers spend $31,286 a year on each incarcerated person and $12,201 a year on every primary and secondary school student. How is defunding the police a radical idea when this country is literally prioritizing oppression over education?
As conversations about defunding the police and building institutions for mental and social welfare play out across the nation, The New Jim Crow provides a critical perspective on how the Supreme Court has emboldened police departments to behave in racist, undemocratic and antagonizing ways. Police departments have become agents of racial oppression, perpetuating America’s racial undercaste of Black Americans. When we talk about defunding the police, we need to have a parallel conversation about how we can transform America from a security state into a welfare state that prioritizes opportunity for all. We cannot stop at defunding the police. We must ask ourselves, why elite colleges have consistently had student bodies that are 8% Black, when 15% of high school graduates are Black? Why are white applicants 36% more likely to receive callbacks to job interviews than equally qualified Black applicants? Defunding the police will not dissolve the presence of America’s racial undercaste alone. But coupled with education and job opportunities, Black Americans will be able to forever stand tall in the sun.
Thank you to Izzy Davis for editing this article!