The New Jim Crow (13 page)

The U.S. Supreme Court struck down this basic requirement as “unrealistic.” 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 during
a stop or search, and police may use minor traffic 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 detained 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 traffic violations and throw them in jail (even if the statutory penalty for the traffic violation is a mere fine, not jail time).

Another legal option for officers frustrated by a motorist's refusal to grant “consent” is to bring a drug-sniffing dog to the scene. This option is available to police in traffic stops, as well as to law enforcement officials confronted with resistant 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-sniffing dog around someone's vehicle (or someone's luggage) does not constitute a “search,” and therefore does not trigger Fourth Amendment scrutiny.
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If the dog alerts to drugs, then the officer has probable cause to search without the person's consent. Naturally, in most cases, when someone is told that a drug-sniffing 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.

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 files 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 officer works and attract more attention to themselves. For good reason, many people—especially poor people of color—fear police harassment, retaliation, and abuse. After having your car torn apart by the police in a futile search for drugs, or being
forced to lie spread-eagled on the pavement while the police search you and interrogate you for no reason at all, how much confidence do you have in law enforcement? Do you expect to get a fair hearing? Those who try to find 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 happened 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 special police training—that qualifies them to identify drug criminals in the absence 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 thousands of law enforcement officers 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 Reagan administration's rollout of the War on Drugs. The federal program, administered by over three hundred state and local law enforcement agencies, trains state and local law enforcement officers to use pretextual traffic stops and consent searches on a large scale for drug interdiction. Officers learn, among other things, how to use a minor traffic violation as a pretext to stop someone, how to lengthen a routine traffic stop and leverage it into a search for drugs, how to obtain consent from a reluctant motorist, and how to use drug-sniffing dogs to obtain probable cause.
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By 2000, the DEA had directly trained more than 25,000 officers 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
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.”
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The program's success requires police to stop “staggering” numbers of people in shotgun fashion.
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This “volume” approach to drug enforcement sweeps up extraordinary numbers of innocent people. As one California Highway Patrol Officer said, “It's sheer numbers.... You've got to kiss a lot of frogs before you find a prince.”
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Accordingly, every year, tens of thousands of motorists find themselves stopped on the side of the road, fielding questions 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.
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One study found that up to 99 percent of traffic stops made by federally funded narcotics task forces result in no citation and that 98 percent of task-force searches during traffic stops are discretionary searches in which the officer searches the car with the driver's verbal “consent” but has no other legal authority to do so.
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The “drug-courier profiles” utilized by the DEA and other law enforcement agencies for drug sweeps on highways, as well as in airports and train stations, are notoriously unreliable. In theory, a drug-courier profile reflects the collective wisdom and judgment of a law enforcement agency's officials. Instead of allowing each officer to rely on his or her own limited experience and biases in detecting suspicious behavior, a drug-courier profile affords every officer the advantage of the agency's collective experience and expertise. However, as legal scholar David Cole has observed, “in practice, the drug-courier profile is a scattershot hodgepodge of traits and characteristics so expansive that it potentially justifies stopping anybody and everybody.”
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The profile can include traveling with luggage, traveling without luggage, driving an expensive car, driving a car that needs repairs, driving with out-of-state license plates, driving a rental car, driving with “mismatched occupants,” acting too calm, acting too nervous, dressing casually, wearing expensive clothing or jewelry, being one of the first to deplane, being one of the last to deplane, deplaning in the middle, paying for a ticket in cash, using large-denomination currency, using small-denomination currency, traveling alone, traveling with a companion, and so on. Even striving to obey the law fits the profile! The Florida Highway Patrol Drug Courier Profile cautioned troopers to be suspicious of “scrupulous obedience to traffic laws.”
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As Cole points out, “such profiles do not so much focus an investigation as provide law enforcement officials a ready-made excuse for stopping whom-ever they please.”
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The Supreme Court has allowed use of drug-courier profiles as guides for the exercise of police discretion. Although it has indicated that the mere fact that someone fits a profile does not automatically constitute reasonable suspicion justifying a stop, courts routinely defer to these profiles, and the Court has yet to object. As one judge said after conducting a review of drug-courier profile decisions: “Many courts have accepted the profile, as well as the Drug Enforcement Agency's scattershot enforcement efforts, unquestioningly, mechanistically, and dispositively.”
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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 record numbers.
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Still, it is fair to wonder why the police would choose to arrest such an astonishing percentage of the American public for minor drug crimes. The fact that police are legally
allowed
to engage in a wholesale roundup of nonviolent 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 enforcement? 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 enforcement a priority now?

Once again, the answer lies in the system's design. Every system of control depends for its survival on the tangible and intangible benefits that are provided to those who are responsible for the system's maintenance and administration. 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 resistance within law enforcement, as well as among some conservative commentators.
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The federalization
of drug crime violated the conservative tenet of states' rights and local control, as street crime was typically the responsibility of local law enforcement. Many state and local law enforcement officials were less than pleased with the attempt by the federal government to assert itself in local crime fighting, viewing the new drug war as an unwelcome distraction. Participation 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 resistance within law enforcement to the drug war created something of a dilemma for the Reagan 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 agencies that were willing to make drug-law enforcement a top priority. The new system of control is traceable, to a significant degree, to a massive bribe offered to state and local law enforcement by the federal government.

In 1988, at the behest of the Reagan administration, Congress revised the program that provides federal aid to law enforcement, renaming it the Edward Byrne Memorial State and Local Law Enforcement Assistance Program after a New York City police officer 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 fight the War on Drugs. Millions of dollars in federal aid have been offered to state and local law enforcement agencies willing to wage the war. This federal grant money has resulted in the proliferation of narcotics task forces, including those responsible 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.
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In fact, it is questionable whether any specialized drug enforcement 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 officers to highway drug interdiction. The Pentagon, for its part, has given away military intelligence and millions of dollars in firepower to state and local agencies willing to make the rhetorical war a literal one.

Almost immediately after the federal dollars began to flow, law enforcement 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 significant 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 police departments.
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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 fifty 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 rifles, 181 grenade launchers, 8,131 bulletproof helmets, and 1,161 pairs of night-vision goggles.”
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A retired police chief in New Haven, Connecticut, told the
New York Times
, “I was offered tanks, bazookas, anything I wanted.”
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