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A bit of common sense is overdue in public discussions about racial bias in the criminal justice system. The great debate over whether black men have been targeted by the criminal justice system or unfairly treated in the War on Drugs often overlooks the obvious. What is painfully obvious when one steps back from individual cases and specific policies is that the system of mass incarceration operates with stunning efficiency to sweep people of color off the streets, lock them in cages, and then release them into an inferior second-class status. Nowhere is this more true than in the War on Drugs.

The central question, then, is how exactly does a formally colorblind criminal justice system achieve such racially discriminatory results? Rather easily, it turns out. The process occurs in two stages. The first step is to grant law enforcement officials extraordinary discretion regarding whom to stop, search, arrest, and charge for drug offenses, thus ensuring that conscious and unconscious racial beliefs and stereotypes will be given free reign. Unbridled discretion inevitably creates huge racial disparities. Then, the damning step: Close the courthouse doors to all claims by defendants and private litigants that the criminal justice system operates in racially discriminatory fashion. Demand that anyone who wants to challenge racial bias in the system offer, in advance, clear proof that the racial disparities are the product of intentional racial discrimination—i.e., the work of a bigot. This evidence will almost never be available in the era of colorblindness, because everyone knows—but does not say—that the enemy in the War on Drugs can be identified by race. This simple design has helped to produce one of the most extraordinary systems of racialized social control the world has ever seen.

Picking and Choosing—The Role of Discretion

Chapter 2 described the first step in some detail, including the legal rules that grant police the discretion and authority to stop, interrogate, and search anyone, anywhere, provided they get “consent” from the targeted individual. It also examined the legal framework that affords prosecutors extraordinary discretion to charge or not charge, plea bargain or not, and load up defendants with charges carrying the threat of harsh mandatory sentences, in order to force guilty pleas, even in cases in which the defendants may well be innocent. These rules have made it possible for law enforcement agencies to boost dramatically their rates of drug arrests and convictions, even in communities where drug crime is stable or declining.26 But that is not all. These rules have also guaranteed racially discriminatory results.

The reason is this: Drug-law enforcement is unlike most other types of law enforcement. When a violent crime or a robbery or a trespass occurs, someone usually calls the police. There is a clear victim and perpetrator. Someone is hurt or harmed in some way and wants the offender punished. But with drug crime, neither the purchaser of the drugs nor the seller has any incentive to contact law enforcement. It is consensual activity. Equally important, it is popular. The clear majority of Americans of all races have violated drug laws in their lifetime. In fact, in any given year, more than one in ten Americans violate drug laws. But due to resource constraints (and the politics of the drug war), only a small fraction are arrested, convicted, and incarcerated. In 2002, for example, there were 19.5 million illicit drug users, compared to 1.5 million drug arrests and 175,000 people admitted to prison for a drug offense.27

The ubiquity of illegal drug activity, combined with its consensual nature, requires a far more proactive approach by law enforcement than what is required to address ordinary street crime. It is impossible for law enforcement to identify and arrest every drug criminal. Strategic choices must be made about whom to target and what tactics to employ. Police and prosecutors did not declare the War on Drugs—and some initially opposed it—but once the financial incentives