The New Jim Crow_ Mass Incarceration in the Age of Colorblindness - Michelle Alexander [77]
The authors found that it was untrue stereotypes about crack markets, crack dealers, and crack babies—not facts—that were driving discretionary decision making by the Seattle Police Department. The facts were as follows: Seattle residents were far more likely to report suspected narcotics activities in residences—not outdoors—but police devoted their resources to open-air drug markets and to the one precinct that was least likely to be identified as the site of suspected drug activity in citizen complaints. In fact, although hundreds of outdoor drug transactions were recorded in predominantly white areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transactions was much lower. In racially mixed open-air drug markets, black dealers were far more likely to be arrested than whites, even though white dealers were present and visible. And the department focused overwhelmingly on crack—the one drug in Seattle more likely to be sold by African Americans—despite the fact that local hospital records indicated that overdose deaths involving heroin were more numerous than all overdose deaths for crack and powder cocaine combined. Local police acknowledged that no significant level of violence was associated with crack in Seattle and that other drugs were causing more hospitalizations, but steadfastly maintained that their deployment decisions were nondiscriminatory.
The study’s authors concluded, based on their review and analysis of the empirical evidence, that the Seattle Police Department’s decisions to focus so heavily on crack, to the near exclusion of other drugs, and to concentrate its efforts on outdoor drug markets in downtown areas rather than drug markets located indoors or in predominantly white communities, reflect “a racialized conception of the drug problem.”82 As the authors put it: “[The Seattle Police Department’s] focus on black and Latino individuals and on the drug most strongly associated with ‘blackness’ suggest that law enforcement policies and practices are predicated on the assumption that the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.’”83 This racialized cultural script about who and what constitutes the drug problem renders illegal drug activity by whites invisible. “White people,” the study’s authors observed, “are simply not perceived as drug offenders by Seattle police officers.”84
Hollow Hope
One might imagine that the facts described above would provide grounds for a lawsuit challenging the Seattle Police Department’s drug war tactics as a violation of the equal protection clause of the Fourteenth Amendment and demanding reform. After all, obtaining reform through the city council or state legislature may seem unlikely, for black “criminals” are perhaps the most despised minority in the U.S. population. Few politicians will leap at the opportunity to support black people labeled criminals. Accordingly, a lawsuit may seem like the best option. The purpose of our Constitution—especially the Fourteenth Amendment’s equal-protection guarantee—is to protect minority rights even when, or especially when, they are unpopular. So shouldn’t African American defendants be able to file a successful lawsuit demanding an end to these discriminatory practices or challenge their drug arrests on the grounds that these law enforcement practices are unlawfully tainted by race? The answer is yes, they should, but no, they probably can’t.
As legal scholar David Cole has observed, “The Court has imposed nearly insurmountable barriers to persons challenging race discrimination at all stages of the criminal justice system.”85 The barriers are so high that few lawsuits are even filed, notwithstanding