Apartheid by Another Name?Criminal Justice in America

Rev. Kate Rohde

All of us are either somewhat or very aware that the criminal justice system inAmerica favors White People. White People are far less likely to get stopped by thepolice for little or no reason. If we are stopped, we are far less likely to be searched. Ifwe are arrested, we will be treated better. If we are charged, we White Citizens are farmore likely to get a favorable plea and far less likely to do jail time. If we are sentenced,and there is discretion, our sentence is likely to be less harsh. As, I say, most fair-minded,aware, white people, are somewhat aware we are privileged, but we forget it from day today unless we are in a situation on a regular basis where we see for ourselves, ourprivilege compared to people of color.

Still there are times when it rises to consciousness. About ten years ago, I wasliving alone, and I was awakened in the middle of the night with a man’s voicedownstairs and noises. My heart pounding, I quickly locked my bedroom door and calledthe police, who, thankfully, got there quickly, found that my back door had been brokenthrough, and chased the intruder up three flights of stairs apprehending him on the floorabove me. The intruder was a large, rough-looking, white man.

The policeman who rescued me was a thirty-something African American man. Iwas tempted to throw my arms around his neck like Betty Boop and say, “My hero!But I didn’t. Instead I was up the rest of the night worrying about my broken door andwindow and mopping up the floor where my intruder had urinated. The policeman toldme this was not uncommon, but that didn’t make me feel any better.

About a month later I found myself in court with the prosecutor, the policeman,and the defendant—who was now clean shaven and dressed in a suit. No one hadcontacted me nor asked me to talk to them, but the prosecutor had obviously had quite afew conversations with the defendant’s lawyer. He quickly took me and the policemanand a friend who had come with me outside to ask about the crime. “What,” he asked me,“was this young man doing in your house? He doesn’t look like a burglar!” I was struckdumb as was my usually talkative friend, but the policeman, who I could see was flushedand trying to keep a professional demeanor spoke up to tell the prosecutor that heexpected the man was there to rob the house. Later, I called the prosecutor to ask himwhat he had meant when he said the young man didn’t look like a burglar. Did it haveanything to do with the fact that he was White? The prosecutor said of course not andsputtered, but didn’t come up with an alternate explanation. Instead he tried to convinceme of the hardship this young man would face because his conviction meant he would nolonger be able to fulfill his ambition to be a policeman! My intruder was put on probationand never paid the restitution he was supposed to pay for my broken door. A few monthslater, I came out of my office to find that my car was not in its usual parking space andwas nowhere to be seen. I called the police and a pleasant, young, white officer—on theWest Chester police force there was only one black officer—the pleasant young officer

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took my report and then offered to give me a ride home. On our way home he told methat my car had probably been taken by a Puerto Rican, that “they” seemed to preferToyotas.

It hadn’t, in fact been taken by a Puerto Rican. The next morning I got a callsaying they had found the car two blocks from my office. The “thief” it turns out, wasme—a middle-aged white woman who had lunch at a place on her way back to her officeand then forgot she had driven there and walked back to the office leaving the car behind!

A few months later I was in a gathering with 400 UU ministers and we wereasked to stand if various things had happened to us. We were asked if we had ever beenstopped while driving when we hadn’t broken any traffic law. All but one of the peoplewho stood were Latino and black men, graduates of Harvard, the University of Chicago,clergymen all. When asked how many had been taken to police stations without havingcommitted a crime, most stayed standing. It was quite a visual picture to see that in thissea of white faces, the people standing were all people of color. Although I live in apretty white bread world, I could tell quite a few more anecdotes.

I tell these stories not because anecdotes are evidence. They are not. I tell them because Inot only know from statistics and reading that the criminal justice system is verydiscriminatory, I have witnessed it in some emotional situations. And yet, I recently reada book that put the stories, the legal system and the statistics together, in such a way that Iam far more disturbed and surprised than ever before.

Did you know that the US imprisons a higher percentage of its black citizens than SouthAfrica did during Apartheid?

Did you know that there are more African Americans in prison today than were in slaveryright before the Civil War?

Did you know that we now have the highest rate of incarceration in the world, surpassingRussia, China, or Iran?

Did you know that not only is our rate high, but it is geometrically higher thandemocracies around the world? An American citizen is eight times more likely to be injail than a German citizen, for example.

One in every 31 Americans is under control of the criminal justice system, probation,parole, or prison—over 2 million in prison.

Over the past thirty years, there has been no correlation between the crime rateand the numbers of people in prison. Incarceration has gone up geometrically, but thecrime rate has not.

Rather the criminal justice system was changed to give high financial incentivesto increase the prison population, along with a Drug War, and a conservative Supreme

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Court that has all but done away with the 4th amendment which bans unusual search andseizure. And it is people of color who, far more than their numbers either in thepopulation or among those who break the law, are in prison.

Let’s do a little experiment. Close your eyes. Picture a drug pusher and his client. If thedrug user and the drug seller don’t look a lot like the majority of the people in thissanctuary, it is a skewed picture. Drug use and selling is done in about equal percentagesby people of all races with a possible edge in percentage to white professionals. One inten Americans is in violation of our drug laws in any year. Yet the people going to prisonin the War on Drugs are overwhelmingly black and Latino. And if you are like mostAmericans, even black Americans, you have been influenced by the media to picturecrime, especially drug crime, to be heavily associated with people of color.

Following the passage of the Civil Rights Laws in the 1960’s it became illegal todiscriminate on the basis of race in housing, jobs, voting, and education. On the nationalpolitical scene it became improper to explicitly use racial prejudice to get votes.However, since a Democratic President had been responsible for passing the Civil RightsBill, the Democrats lost those who had been against Civil Rights, as Lyndon Johnson hadforeseen. In the following election, Richard Nixon and Spiro Agnew, used the phrase“Law and Order” as a code phrase to signal their opposition to Civil Rights. Nixon had17 speeches devoted to it as did his later indicted VP Spiro Agnew. One of his televisionads explicitly called on voters to reject the lawlessness of civil rights activists andembrace "order" in the United States. The advertisement began with frightening musicaccompanied by flashing images of protestors, bloodied victims, and violence. A deepvoice then said:“It is time for an honest look at the problem of order in the United States. Dissent is anecessary ingredient of change, but in a system of government that provides for peacefulchange, there is no cause that justifies resorting to violence. Let us recognize that thefirst right of every American is to be free from domestic violence. So I pledge to you, weshall have order in the United States.”At the end of the ad, a caption declared: "This time ... vote like your whole worlddepended on it ... NIXON."

Viewing his own campaign ad, Nixon reportedly remarked with glee that the ad "hits itright on the nose. It's all about those damn Negro-Puerto Rican groups out there.”Similarly, John Ehrlichman, special counsel to the president, explained the Nixonadministration's campaign strategy of 1968 in this way: "We'll go after the racists." InEhrlichman's view, "that subliminal appeal to the anti-black voter was always present inNixon's statements and speeches."

Reagan kicked off his presidential campaign at the annual Neshoba County Fair nearPhiladelphia, Mississippi—the town where three Civil Rights activists were murdered in1964. He assured the crowd "I believe in states' rights," and promised to restore to stateand local governments the power that properly belonged to them. He proceeded tocampaign against “criminal predators” and “welfare queens.”

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We often think that the War on Drugs came as a response to a perceived problem.However, at the time the Reagan administration kicked it off, only 2% of the Americanpublic thought of drugs as a problem.

Initially it was a creation for political purposes to create a Federal face for fightingcrime and make Washington look tough on crime. The problem was that crime fightingwas supposed to be a state and local government matter. The War Against Drugs gavefederal funds to local and state entities for drug enforcement and created financialincentives to police forces who made a lot of arrests. Unlike most crimes, drugsenforcement is not driven by complaints, since neither buyer nor seller has an incentive tocall the police—unlike most other crimes in which someone feels themselves to be avictim. But the federal government offered money and equipment to law enforcementdepartments that made a lot of arrests. New laws allowed departments to get money fromthose they arrested—confiscating and selling their property. The War on Drugs also sawan increased abuse of the fourth amendment which reads: “The right of the people to besecure in their persons, houses, papers, and effects, against unreasonable searches andseizures, shall not be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to be searched,and the persons or things to be seized. “ An increasingly conservative Supreme Courtallowed motorists to be stopped for minor traffic violations and then police would “ask”to search their person or car with no probable cause. Few refuse such requests comingfrom uniformed officers and if they do, consequences ensue. Military equipment wasgiven to local drug enforcement agencies. In some cases whole schools and their studentswere searched looking for a marijuana dealer.

The court ruled that discrimination on the basis of race was not a defense merely becausethere was a racially discriminatory pattern in who got stopped. It had to be proved that aparticular officer had race in mind making the stop, or a particular district attorney inmaking a charge, and you couldn’t look at past records of arrests or charges to do so.Police forces were trained to find minor traffic violations as an excuse for stoppingpeople they viewed as suspicious and then pressuring them to allow a search. In NewJersey on the Turnpike, 15 percent of the drivers are of color, but 42 percent of the stopswere people of color. However, whites on the Turnpike were twice as likely as blacks andfive times as likely as Latinos to actually be found to have contraband in their cars or ontheir person.

Beginning with Reagan, then Bush Sr. and continuing with Bill Clinton, prisonpopulations exploded, quintupling. Indeed, Clinton wanted to avoid being seen as “softon crime” so that right before the first presidential primary he flew back to Arkansas tooversee the execution of an African American man so mentally challenged that he askedto save the dessert at his last meal for the following day. During Clinton’s Presidency,incarceration increased by the greatest numbers ever.

And even though the numbers of whites committing drug crime is several times that ofpeople of color, it was people of color who were being locked up in the war on drugs.

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They were more likely to be targeted in traffic stops, in mostly black neighborhoods, inother neighborhoods, more likely to be arrested, more likely to be charged, less likely toget a favorable plea bargain, more likely to be convicted, and to serve more severesentences.

It is not only that people of color are disproportionately jailed, but following convictionand jail other rights are taken away. A former offender can be discriminated against inemployment, public housing, educational opportunities, and they can be denied the rightto vote—all the rights won under the Civil Rights Act are taken away—effectively re-establishing a legalized Jim Crow marginalization. In an irony of history, a great manyprisons which house minority inmates are located in rural, white areas of states—uppingthe number of residents in the area and therefore their legislative representation bycounting minorities imprisoned and unable to vote. This is reminiscent of the founding orour country when slaves, who couldn’t vote, none the less were counted in the census fordetermining their master’s power in the national legislature.

Thus the mass incarceration gives conservative, white, areas more legislativerepresentation, while disproportionally disenfranchising black communities where adisproportionate number of adults are unable to vote. 90% of those sentenced for drugoffences in Illinois are black, and fifty percent of black men in Chicago have a felonyrecord—80 per cent of those of working age. Four out of five people jailed for drugs arein jail for using them.

So, nearly fifty years after African Americans overturned Jim Crow laws, new laws andthe way they are enforced, have caged millions, and saddled them with inferioropportunities in housing, education, and employment, and deprived them of the right tovote. This is not because of disproportionate criminality—since it is mostly the drug lawswhich have caused this huge problem. Indeed draconian sentences often cause theinnocent to plead guilty rather than gamble with the possibility of decades in jail. It isbecause it was politically expedient for generations of politicians to run against crime—which they associated with black defendants and whipped up fears and resentments to doso. It is because bigotry still exists.

It is because most of us, of all colors, harbor unconscious stereotypes that see black menas more dangerous than white men, and because we excuse white men more easily. Astudy shows that prosecutors tend to attribute criminal actions of black men to their basiccharacter, while they attribute criminal actions of white men to their circumstances.Another study shows that in the hands of a black man people are more likely to mistake awallet for a gun, while in the hands of a white man they are more likely to mistake a gunfor a wallet. That unconscious racism present in so many of us and fed by the media,leads to more arrests, worse charges, more convictions, and longer sentences. It is alsobecause those of us with the privilege tend not to worry about such things, those of uswith no particular animus, but with no passion for justice, ignore the injustice and theracial divide—a racial divide as wide in our city as anywhere in the nation.

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Our criminal justice system is expensive. If we jailed people on the same basis we didbefore the War on Drugs, none of our states would have to lay off teachers. Our criminaljustice system re-enforces racial discrimination and disadvantage. Our criminal justicesystem does not keep us safer.

It jails millions of offenders who are not a danger to others and are more in need oftreatment than punishment—while others who have committed far more dangerous acts,go free.

Those of us who are white, can be glad for our privilege and ignore the injustice in ourcity and in our nation. Or we can become concerned about it, find out about it, speak upabout it, and change it. As Cornel West said, “Justice is what Love looks like in public.”

Note: This sermon repeatedly references: The New Jim Crow: Mass Incarceration in theAge of Colorblindness by Michelle Alexander.