by Graham Holt

IMG_2206It’s 8:30 a.m. on a Tuesday. I stand before a large room in the Guilford County Courthouse and scan hundreds of faces hoping to find my tardy, pot-smoking client. Like the last time, he’s charged for a dime bag. Any second now, the prosecutors will call the docket, but I still don’t see him. I let my gaze fall on the action at the public entrance where two sets of double doors are in constant motion. I see a girl trapped in a little space next to one of the hinges. The door continually stops within inches of her nose before it hisses shut again. A white ribbon in her hair flows upward into the moving air. I take a deep breath.

Four hundred and thirty-three people, all of them accused of crimes, are scheduled to appear in this courtroom today. But even more striking than the high number of people is the fact that the vast majority of them are black. I’ve worked in this courthouse for seven years and it’s the same story every single day. The mass incarceration of black people, it seems to me — and I’m sure to many others — is the most striking and perverse social fact in the criminal-justice system.

Since the government’s War on Drugs began under President Richard Nixon in 1971, 31 million people have been arrested for drug offenses; most of them have been black.  In a 2000 study, Human Rights Watch reported that in seven states, 80 to 90 percent of people incarcerated for drug crimes were black. Nationally, three-fourths of all people incarcerated for drug crimes are black.

One of the most confusing aspects of this situation is that racism seems to be on the decline. We have a long way to go, but these days most people at least claim they are not racist. All the judges, police officers and prosecutors I know are strongly against racist practices. The apparent decline in racism is also why reasonable explanations for the problem have been historically so hard to come by.

Michelle Alexander, in her 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, which is now the departure point for any discussion about mass incarceration, acknowledges racism as the root of the problem, but argues that other, sometimes race-neutral forces are responsible for the trend and have even accelerated it. And because these forces are systemic, mass incarceration will persist despite the views of the system’s participants.

This is a radical idea in an important book and it pokes a very large hole in the standard liberal explanation: that black people still suffer from social ills, like drug use, created by years of oppression in a racist society. While true, this explanation fails to address why more black people are in prison than white people, and the issue becomes more confusing the deeper you dig, especially when you consider some important facts.

For example, white people do more drugs than black people. Way more. They sell more too. The number of studies in this area are manifold and the findings are across-the-board disturbing. In a 2000 study, the National Institute on Drug Abuse reported that white students use cocaine at seven times the rate of black students and smoke crack at eight times the rate. The same study reported that while black and white students smoke marijuana at equal rates, white youth have three times the drug-related emergency-room visits as black youth. Yet, in 2006, one in nine black men between the ages of 20 and 35 was behind bars for drugs.

So, what exactly is going on? If racism is on the decline, and white people do more drugs than black people, why are more black people behind bars for drug crimes than white people?

The answer is so obvious that I still can’t believe I didn’t see it myself. It turns out to be the same old explanation for most bad things in the world: cash. Local law-enforcement agencies, willing to make drug crimes a top priority, receive huge cash grants from the federal government. Grant programs like the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, of which the Greensboro Police Department is a recipient, dish out millions of dollars to local law-enforcement agencies to fight the War on Drugs. And in case this isn’t enough incentive, local law-enforcement agencies, by federal law, are allowed to keep, for their own use, the majority of cash and assets they seize during busts.

There is a similarly obvious reason that black people have been chosen as the sacrifical lambs. After years of stigma-producing racism, it’s just easier for law enforcement to concentrate their drug enforcement efforts on black people. And this should come as no surprise, given the way the media portrays black people i.e., as drug-dealing criminals. Because of the stigma, public outcry falls on deaf ears.

Michelle Alexander distills the entire process of mass incarceration down to three key stages.

The first stage is the roundup. To keep the cash rolling in, law enforcement has had to develop some innovative tactics to make arrests. One is the “consent” search — law enforcement’s way around the Constitutional right against unreasonable search and seizure. You may think that if people consent to be searched, it’s their own damn fault if the cops find drugs. Well, not for people who have lost faith in law enforcement. What would you say if three cops, with their hands on their weapons, rushed at you yelling: “Do you consent to a search!?”

The second stage is the conviction. Drug sentencing is so severe, that most people, when faced with the prospect of a long prison sentence, choose to plead guilty. Prosecutors routinely offer shorter sentences or probation to people willing to take pleas. Once they get the conviction, the formal control apparatus kicks in. The state can then monitor and control the convicted person through the prison system, probation and the stigma the conviction carries.

The third and final stage is the lifelong stigma.  Michelle Alexander calls this stage the “invisible punishment.” If you are convicted of a felony drug crime in North Carolina, you will never rejoin mainstream society. For the rest of your life you will be denied housing, education, employment and public benefits. There is no meaningful second chance. There is no way out.

Graham Holt practices law in his hometown of Greensboro.

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