The New Jim Crow (46 page)

71
See “Riverside Drug Cases Under Review Over Use of Secret Informant,” Associated Press, Aug. 20, 2004; Ruben Narvette Jr., “Blame Stretches Far and Wide in Drug Scandal,”
Dallas Morning News,
Nov. 14, 2003; Rob Warden,
How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row
(Chicago: Northwestern University School of Law, Center for Wrongful Convictions, 2004-5); “The Informant Trap,”
National Law Journal
, Mar. 6, 1995; Steven Mills and Ken Armstrong, “The Jailhouse Informant,”
Chicago Tribune
, Nov. 16, 1999; and Ted Rohrlich and Robert Stewart, “Jailhouse Snitches: Trading Lies for Freedom,”
Los Angeles Times
, Apr. 16, 1989.

72
See Adam Liptak, “Consensus on Counting the Innocent: We Can't,”
The New York Times
, Mar. 25, 2008; and Adam Liptak, “Study Suspects Thousands of False Confessions,”
New York Times
, Apr. 19, 2004.

73
Christopher J. Mumola and Jennifer C. Karberg,
Drug Use and Dependence, State and Federal Prisoners, 2004
(Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, Oct. 2006); and Ashley Nellis, Judy Greene, and Marc Mauer,
Reducing Racial Disparity in the Criminal Justice System: A Manual for Practitioners and Policymakers
, 2d ed. (Washington, DC: Sentencing Project, 2008), 8.

74
Hutto v. Davis
, 454 U.S. 370 (1982).

75
Harmelin v. Michigan
, 501 U.S. 967 (1991).

76
Marc Mauer, “The Hidden Problem of Time Served in Prison,”
Social Research
74, no. 2 (Summer 2007): 701, 703.

77
Lockyer v. Andrade
, 538 U.S. 63 (2003).

78
Anne Gearam, “Supreme Court Upholds ‘Three Strikes Law,'” Associated Press, Mar. 5, 2003.

79
See Families Against Mandatory Minimums, “Profiles of Injustice,” at
www.famm.org/ProfilesofInjustice/FederalProfiles/MarcusBoyd.aspx
.

80
Marc Mauer, “Hidden Problem,” 701-2.

81
“Criticizing Sentencing Rules, US Judge Resigns,”
New York Times,
Sept. 30, 1990.

82
Joseph Treaster, “Two Federal Judges, in Protest, Refuse to Accept Drug Cases,”
New York Times
, Apr. 17, 1993.

83
Chris Carmody, “Revolt to Sentencing is Gaining Momentum,”
National Law Journal,
May 17, 1993, 10.

84
Stuart Taylor Jr., “Ten Years for Two Ounces,”
American Lawyer
, Mar. 1990, 65-66.

85
Michael Jacobson,
Downsizing Prisons: How to Reduce Crime and End Mass Incarceration
(New York: New York University Press, 2005), 215.

86
See Mauer,
Race to Incarcerate
, 33, 36-38, citing Warren Young and Mark Brown.

87
PEW Center for the States,
One in 31
.

88
Jeremy Travis,
But They All Come Back: Facing the Challenges of Prisoner Reentry
(Washington, DC: Urban Institute Press, 2002), 32, citing Bureau of Justice Statistics.

89
Ibid., 94, citing Bureau of Justice Statistics.

90
Ibid.

91
Ibid., 32.

92
Ibid.

93
Ibid., 49, citing Bureau of Justice Statistics.

94
Loïc Wacquant, “The New ‘Peculiar Institution': On the Prison as Surrogate Ghetto,”
Theoretical Criminology
4, no. 3 (2000): 377-89.

1
Frontline, The Plea, at
www.pbs.org/wgbh/pages/frontline/shows/plea/four/stewart.html
; and Angela Davis,
Arbitrary Justice: The Power of the American Prosecutor
(New York: Oxford University Press, 2007), 50-52.

2
American Civil Liberties Union,
Stories of ACLU Clients Swept Up in the Hearne Drug Bust of November 2000
(Washington, DC: American Civil Liberties Union, Nov. 1, 2002),
www.aclu.org/DrugPolicy/DrugPolicy.cfm?ID=11160&c=80
.

3
Human Rights Watch,
Punishment and Prejudice: Racial Disparities in the War on Drugs
, HRW Reports, vol. 12, no. 2 (May 2000).

4
Ibid.

5
Jeremy Travis,
But They All Come Back: Facing the Challenges of Prisoner Reentry
(Washington, DC: Urban Institute Press, 2002), 28.

6
Ibid.

7
Ibid.

8
Marc Mauer and Ryan S. King,
Schools and Prisons: Fifty Years After
Brown v. Board of Education (Washington, DC: Sentencing Project, Apr. 2004), 3.

9
Marc Mauer,
The Changing Racial Dynamics of the War on Drugs
(Washington, DC: Sentencing Project, Apr. 2009).

10
See, e.g., U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration,
Summary of Findings from the 2000 National Household Survey on Drug Abuse,
NHSDA series H-13, DHHS pub. no. SMA 01-3549 (Rockville, MD: 2001), reporting that 6.4 percent of whites, 6.4 percent of blacks, and 5.3 percent of Hispanics were current illegal drug users in 2000;
Results from the 2002 National Survey on Drug Use and Health: National Findings
, NSDUH series H-22, DHHS pub. no. SMA 03-3836 (2003), revealing nearly identical rates of illegal drug use among whites and blacks, only a single percentage point between them;
Results from the 2007 National Survey on Drug Use and Health: National Findings
, NSDUH series H-34, DHHS pub. no. SMA 08-4343 (2007) showing essentially the same findings; and Marc Mauer and Ryan S. King,
A 25-Year Quagmire: The War on Drugs and Its Impact on American Society
(Washington, DC: Sentencing Project, Sept. 2007), 19, citing a study suggesting that African Americans have slightly higher rates of illegal drug use than whites.

11
See, e.g., Howard N. Snyder and Melissa Sickman,
Juvenile Offenders and Victims: 2006 National Report
, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (Washington, DC: 2006), reporting that white youth are more likely than black youth to engage in illegal drug sales; Lloyd D. Johnson, Patrick M. O'Malley, Jerald G. Bachman, and John E. Schulenberg,
Monitoring the Future, National Survey Results on Drug Use, 1975- 2006, vol. 1, Secondary School Students
, U.S. Department of Health and Human Services, National Institute on Drug Abuse, NIH pub. no. 07-6205 (Bethesda, MD: 2007), 32, stating “African American 12th graders have consistently shown lower usage rates than White 12th graders for most drugs, both licit and illicit”; and Lloyd D. Johnston, Patrick M. O'Malley, and Jerald G. Bachman,
Monitoring the Future: National Results on Adolescent Drug Use: Overview of Key Findings 2002
, U.S. Department of Health and Human Services, National Institute on Drug Abuse, NIH pub. no. 03-5374 (Bethesda, MD: 2003), presenting data showing that African American adolescents have slightly lower rates of illicit drug use than their white counterparts.

12
National Institute on Drug Abuse,
Monitoring the Future, National Survey Results on Drug Use, 1975-1999
, vol. 1,
Secondary School Students
(Washington, DC: National Institute on Drug Abuse, 2000).

13
U.S. Department of Health,
National Household Survey on Drug Abuse, 1999
(Washington, DC: Substance Abuse and Mental Health Services Administration, Office of Applied Studies, 2000), table G, p. 71,
www.samhsa.gov/statistics/statistics.html
.

14
Bruce Western,
Punishment and Inequality
(New York: Russell Sage Foundation, 2006), 47.

15
Researchers have found that drug users are most likely to report using as a main source for drugs someone who is of their own racial or ethnic background. See, e.g., K. Jack Riley,
Crack, Powder Cocaine and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities
(Washington, DC: National Institute of Justice, Dec. 1997), 1; see also George Rengert and James LeBeau, “The Impact of Ethnic Boundaries on the Spatial Choice of Illegal Drug Dealers,” paper presented at the annual meeting of the American Society of Criminology, Atlanta, Georgia, Nov. 13, 2007 (unpublished manuscript), finding that most illegal drug dealers sell in their own neighborhood and that a variety of factors influence whether dealers are willing to travel outside their home community.

16
See Rafik Mohamed and Erik Fritsvold, “Damn, It Feels Good to Be a Gangsta: The Social Organization of the Illicit Drug Trade Servicing a Private College Campus,”
Deviant Behavior
27 (2006): 97-125.

17
See Ralph Weisheit,
Domestic Marijuana: A Neglected Industry
(Westport, CT: Greenwood, 1992); and Ralph Weisheit, David Falcone, and L. Edward Wells,
Crime and Policing in Rural and Small-Town America
(Prospect Heights, IL: Wave-land, 1996).

18
Patricia Davis and Pierre Thomas, “In Affluent Suburbs, Young Users and Sellers Abound,”
Washington Post
, Dec. 14, 1997.

19
Human Rights Watch, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” HRW 12, no. 2 ( May 2000).

20
PEW Center on the States,
One in 100: Behind Bars in America 2008
(Feb. 2008)—data analysis is based on statistics for midyear 2006 published by the U.S. Department of Justice in June 2007.

21
Ibid.; Pew Center on the States,
One in 31: The Long Reach of American Corrections
(Washington, DC: Pew Charitable Trusts, Mar. 2009).

22
Howard Schuman, Charlotte Steeh, Lawrence Bobo, and Maria Krysan,
Racial Attitudes in America: Trends and Interpretations
(Cambridge, MA: Harvard University Press, 1985).

23
See, e.g., Marc Mauer,
Race to Incarcerate
(New York: The New Press, 1999), 28-35, 92-112.

24
Ibid.

25
Katherine Beckett and Theodore Sasson,
The Politics of Injustice: Crime and Punishment in America
(Thousand Oaks, CA: Sage Publications, 2004), 22.

26
Cities with similar demographic profiles often have vastly different drug arrest and conviction rates—not because of disparities in drug crime but rather because of differences in the amount of resources dedicated to drug law enforcement. Ryan S. King,
Disparity by Geography: The War on Drugs in America's Cities
(Washington, DC: Sentencing Project, Mar. 2008).

27
Substance Abuse and Mental Health Services Administration,
Results from the 2002 National Survey on Drug Use and Health: Detailed Tables, Prevalence Estimates,
Standard Errors and Sample Sizes
(Washington, DC: Office of National Drug Control Policy, 2003), table 34.

28
Jimmie Reeves and Richard Campbell,
Cracked Coverage: Television News, the Anti-Cocaine Crusade and the Reagan Legacy
(Durham, NC: Duke University Press, 1994).

29
David Jernigan and Lori Dorfman, “Visualizing America's Drug Problems: An Ethnographic Content Analysis of Illegal Drug Stories on the Nightly News,”
Contemporary Drug Problems
23 (1996): 169, 188.

30
Rick Szykowny, “No Justice, No Peace: An Interview with Jerome Miller,”
Humanist
, Jan.-Feb. 1994, 9-19.

31
Melissa Hickman Barlow, “Race and the Problem of Crime in
Time
and
Newsweek
Cover Stories, 1946 to 1995,”
Social Justice
25 (1989): 149-83.

32
Betty Watson Burston, Dionne Jones, and Pat Robertson-Saunders, “Drug Use and African Americans: Myth Versus Reality,”
Journal of Alcohol and Drug Abuse
40 (Winter 1995): 19.

33
Franklin D. Gilliam and Shanto Iyengar, “Prime Suspects: The Influence of Local Television News on the Viewing Public,”
American Journal of Political Science
44 (2000): 560-73.

34
See, e.g., Nilanjana Dasgupta, “Implicit Ingroup Favoritism, Outgroup Favoritism, and Their Behavioral Manifestations,”
Social Justice Research
17 (2004): 143. For a review of the social science literature on this point and its relevance to critical race theory and antidiscrimination law, see Jerry Kang, “Trojan Horses of Race,”
Harvard Law Review
118 (2005): 1489.

35
There is some dispute whether Nietzsche actually said this. He did use the term “immaculate perception” in
Thus Spoke Zarathustra
to disparage traditional views of knowledge, but apparently did not say the precise quote attributed to him. See Friedrich Nietzsche,
Thus Spoke Zarathustra
, reprinted in
The Portable Nietzsche
, ed. & trans. Walter Kaufmann (New York: Viking Penguin, 1954), 100, 233-36.

36
See, e.g., John F. Dovidio, et al., “On the Nature of Prejudice: Automatic and Controlled Processes,”
Journal of Experimental Social Psychology
33 (1997): 510, 516-17, 534.

37
Joshua Correll, et al., “The Police Officer's Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals,
Journal of Personality and Social Psychology
83 (2001): 1314; see also Keith Payne, “Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon,”
Journal of Personality and Social Psychology
81 (2001): 181.

38
See, e.g., Dovidio, et al., “On the Nature of Prejudice”; and Dasgupta, “Implicit Ingroup Favoritism.”

39
Ibid.; see also Brian Nosek, Mahzarin Banaji, and Anthony Greenwald, “Harvesting Implicit Group Attitudes and Beliefs from a Demonstration Web Site,”
Group Dynamics
6 (2002): 101.