Notes

Introduction

1 Jarvious Cotton was a plaintiff in Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998), which held that Mississippi’s felon disenfranchisement provision had lost its racially discriminatory taint. The information regarding Cotton’s family tree was obtained by Emily Bolton on March 29, 1999, when she interviewed Cotton at Mississippi State Prison. Jarvious Cotton was released on parole in Mississippi, a state that denies voting rights to parolees.

2 The New York Times made the national media’s first specific reference to crack in a story published in late 1985. Crack became known in a few impoverished neighborhoods in Los Angeles, New York, and Miami in early 1986. See Craig Reinarman and Harry Levine, “The Crack Attack: America’s Latest Drug Scare, 1986-1992,” in Images of Issues: Typifying Contemporary Social Problems (New York: Aldine De Gruyter, 1995), 152.

3 The Reagan administration’s decision to publicize crack “horror stories” is discussed in more depth in chapter 1.

4 Clarence Page, “‘The Plan’: A Paranoid View of Black Problems,” Dover (Delaware) Herald, Feb. 23, 1990. See also Manning Marable, Race, Reform, and Rebellion: The Second Reconstruction in Black America, 1945-1990 (Jackson: University Press of Mississippi, 1991), 212-13.

5 See Alexander Cockburn and Jeffrey St. Clair, Whiteout: The CIA, Drugs, and the Press (New York: Verso, 1999). See also Nick Shou, “The Truth in ‘Dark Alliance, ’” Los Angeles Times, Aug. 18, 2006; Peter Kornbluh, “CIA’s Challenge in South Central,” Los Angeles Times (Washington edition) Nov. 15, 1996; and Alexander Cockburn, “Why They Hated Gary Webb,” The Nation, Dec. 16, 2004.

6 Katherine Beckett and Theodore Sasson, The Politics of Injustice: Crime and Punishment in America, (Thousand Oaks, CA: Sage Publications, 2004), 163.

7 Marc Mauer, Race to Incarcerate rev. ed. (New York: The New Press, 2006), 33.

8 PEW Center on the States, One in 100: Behind Bars in America 2008 (Washington, DC: PEW Center, Feb. 2008), 5.

9 Donald Braman, Doing Time on the Outside: Incarceration and Family Life in Urban America (Ann Arbor: University of Michigan Press, 2004), 3, citing D.C. Department of Corrections data for 2000.

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 users of illegal drugs in 2000; Results from the 2002 National Survey on Drug Use and Health: National Findings, NHSDA 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; and 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 finding. See also 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: U.S. Department of Justice, 2006), reporting that white youth are more likely than black youth to engage in illegal drug sales. See also 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, “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 Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, HRW Reports vol. 12, no. 2 (New York, 2000).

13 See, e.g., Paul Street, The Vicious Circle: Race, Prison, Jobs, and Community in Chicago, Illinois, and the Nation (Chicago Urban League, Department of Research and Planning, 2002).

14 Michael Tonry, Thinking About Crime: Sense and Sensibility in American Penal Culture (New York: Oxford University Press, 2004), 14.

15 Ibid.

16 Ibid., 20.

17 National Advisory Commission on Criminal Justice Standards and Goals, Task Force Report on Corrections (Washington, DC: Government Printing Office, 1973), 358.

18 Ibid., 597.

19 Mauer, Race to Incarcerate, 17-18.

Chapter 1: The Rebirth of Caste

1 Reva Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing Action,” Stanford Law Review 49 (1997): 1111; see also Michael Omi and Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s (New York: Routledge, 1996), 84-91.

2 Loïc Wacquant, “America’s New ‘Peculiar Institution’: On the Prison as Surrogate Ghetto,” Theoretical Criminology 4, no. 3 (2000): 380.

3 Lerone Bennett Jr., The Shaping of Black America (Chicago: Johnson, 1975), 62.

4 For an excellent analysis of the development of race as a social construct in the United States and around the globe, see Howard Winant, The World Is a Ghetto: Race and Democracy Since World War II (New York: Basic Books, 2001).

5 Bennett, Shaping of Black America, 62.

6 Keith Kilty and Eric Swank, “Institutional Racism and Media Representations: Depictions of Violent Criminals and Welfare Recipients,” Sociological Imagination 34, no. 2-3 (1997): 106.

7 Edmund Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: Norton, 1975).

8 Ibid.; see also Leslie Carr, Color-blind Racism (Thousand Oaks, CA: Sage Publications, 1997), 14-16.

9 Gerald Fresia, Toward an American Revolution: Exposing the Constitution and Other Illusions (Boston: South End Press, 1998), 55.

10 Wacquant, “America’s New ‘Peculiar Institution,’” 380.

11 C. Vann Woodward, The Strange Career of Jim Crow (1955; reprint, New York: Oxford University Press, 2001).

12 William Cohen, At Freedom’s Edge: Black Mobility and the Southern White Quest for Racial Control (Baton Rouge: Louisiana State University Press, 1991), 28.

13 Ibid., 33.

14 W.E.B. Du Bois, “Reconstruction and Its Benefits,” American Historical Review 15, no. 4 (1910): 784.

15 James McPherson, “Comparing the Two Reconstructions,” Princeton Alumni Weekly, Feb. 26, 1979, 17.

16 See Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 49, 52-53.

17 John Hope Franklin and Alfred A. Moss, From Slavery to Freedom: A History of African Americans, 8th ed. (New York: Knopf, 2000), 82; and Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988), 425.

18 Douglas Blackmon, Slavery by Another Name: The Re-enslavement of Black People in America from the Civil War to World War II (New York: Doubleday, 2008).

19 Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).

20 David M. Oshinsky, Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (New York: Free Press Paperbacks, 1996), 63.

21 See Douglas Blackmon, “A Different Kind of Slavery,” Wall Street Journal Online, Mar. 29, 2008.

22 Woodward, Strange Career of Jim Crow, 45-64.

23 Ibid., 61.

24 Tom Watson, “The Negro Question in the South,” cited in Stokely Carmichael and Charles V. Hamilton, Black Power: The Politics of Liberation in America (New York: Random House, 1967).

25 Woodward, Strange Career of Jim Crow, 64.

26 William Julius Wilson, The Declining Significance of Race: Blacks and Changing American Institutions (University of Chicago Press, 1978), 54.

27 Woodward, Strange Career of Jim Crow, 80.

28 Ibid., 81.

29 Ibid., 7.

30 Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper & Brothers, 1944).

31 Manning Marable, Race, Reform and Rebellion: The Second Reconstruction in Black America, 1945-1990 (Jackson: University Press of Mississippi, 1991), 44; see also Michael Klarman, “Brown, Racial Change, and the Civil Rights Movement,” Virginia Law Review 80 (1994), 7, 9.

32 Marable, Race, Reform and Rebellion, 69.

33 Stephen F. Lawson, Black Ballots: Voting Rights in the South, 1944-1969 (New York: Columbia University Press, 1976), 300, 321, 329, 331.

34 Frances Fox Piven and Richard A. Cloward, Poor People’s Movements: Why They Succeed, How They Fail (New York: Pantheon, 1977), 269.

35 John Donovan, The Politics of Poverty (Indianapolis: Pegasus, 1973), 23.

36 Gerald McKnight, The Last Crusade: Martin Luther King, Jr., the FBI, and the Poor People’s Campaign (New York: Westview Press, 1998), 21-22.

37 Richard Nixon, “If Mob Rule Takes Hold in U.S.,” U.S. News and World Report , Aug. 15, 1966, 64.

38 U.S. House, “Northern Congressmen Want Civil Rights but Their Constituents Do Not Want Negroes,” Congressional Record, 86th Cong., 2d sess. (1960) 106, pt. 4: 5 062-63.

39 Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics (New York: Oxford University Press, 1997), 32.

40 Vesla M. Weaver, “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in American Political Development 21 (Fall 2007): 242.

41 Barry Goldwater, “Peace Through Strength,” in Vital Speeches of the Day, vol. 30 (New York: City News, 1964), 744.

42 “Poverty: Phony Excuse for Riots? Yes, Says a Key Senator,” U.S. News and World Report, July 31, 1967, 14.

43 Joel Rosch, “Crime as an Issue in American Politics,” in The Politics of Crime and Criminal Justice (Beverley Hills: Sage Publications, 1985).

44 Beckett, Making Crime Pay, 32.

45 Marc Mauer, Race to Incarcerate (New York: The New Press, 1999), 52.

46 Weaver, “Frontlash,” 262.

47 Ibid.

48 Klarman, From Jim Crow to Civil Rights, 110.

49 See, e.g., Patrick Buchanan, The New Majority: President Nixon at Mid-Passage (Philadelphia: Girard Bank, 1973).

50 Willard M. Oliver, The Law & Order Presidency (Upper Saddle River, NJ: Prentice Hall, 2003), 127-28, citing Dan Baum, Smoke and Mirrors: The War on Drugs and the Politics of Failure (Boston: Little, Brown, 1996), 13.

51 John Ehrlichman, Witness to Power: The Nixon Years (New York: Simon & Schuster, 1970), 233.

52 Ibid.

53 See Kevin Phillips, The Emerging Republican Majority (New Rochelle, NY: Arlington House, 1969).

54 Warren Weaver, “The Emerging Republican Majority,” New York Times, Sept. 21, 1969.

55 Beckett, Making Crime Pay, 34.

56 Lyndon Johnson, “Remarks on the City Hall Steps, Dayton, Ohio,” in Public Papers of the Presidents 1963-64, vol. 2 (1965), 1371.

57 Thomas Byrne Edsall and Mary D. Edsall, Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics (New York: Norton, 1992), 12-13.

58 Ibid., 38.

59 Ibid., 74.

60 Weaver, “Frontlash,” 259.

61 See Philip A. Klinker and Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America (University of Chicago Press, 1999), 292.

62 Edsall and Edsall, Chain Reaction, 4.

63 Ibid., 138; see also Jeremy Mayer, Running on Race (New York: Random House, 2002), 71.

64 Ibid.

65 Bob Herbert, “Righting Reagan’s Wrongs?” New York Times, Nov. 13, 2007; see also Paul Krugman, “Republicans and Race,” New York Times, Nov. 19, 2007.

66 Edsall and Edsall, Chain Reaction, 148, quoting New York Times, Feb. 15, 1976.

67 Ibid., quoting Washington Post, Jan. 28, 1976.

68 Dick Kirschten, “Jungle Warfare,” National Journal, Oct. 3, 1981.

69 Edsall and Edsall, Chain Reaction, 164.

70 Beckett, Making Crime Pay, 47.

71 Ibid., 56; see also Julian Roberts, “Public Opinion, Crime and Criminal Justice,” in Crime and Justice: A Review of Research, vol. 16, ed. Michael Tonry (University of Chicago Press, 1992).

72 Beckett, Making Crime Pay, 53, citing Executive Office of the President, Budget of the U.S. Government (1990).

73 Ibid., citing U.S. Office of the National Drug Control Policy, National Drug Control Strategy (1992).

74 Ibid.

75 Ibid., 56.

76 See William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Vintage, 1997).

77 Ibid., 31 (citing John Kasarda, “Urban Industrial Transition and the Underclass,” Annals of the American Academy of Political and Social Science 501, no. 1 (1990): 26-47.

78 Ibid., 30 (citing data from the Chicago Urban Poverty and Family Life Survey conducted in 1987 and 1988).

79 Ibid., 39.

80 Ibid., 27.

81 Robert Stutman, Dead on Delivery: Inside the Drug Wars, Straight from the Street (New York: Warner Books, 1992), 142.

82 See Craig Reinarman and Harry Levine, “The Crack Attack: America’s Latest Drug Scare, 1986-1992,” in Images of Issues: Typifying Contemporary Social Problems (New York: Aldine De Gruyter, 1995).

83 Ibid., 154.

84 Ibid., 170-71.

85 Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (University of Chicago Press, 2007), 111, citing Congressional Record 132 (Sept. 24, 1986): S 13741.

86 Provine, Unequal Under Law, 117.

87 Mark Peffley, Jon Hurwitz, and Paul Sniderman, “Racial Stereotypes and Whites’ Political Views of Blacks in the Context of Welfare and Crime,” American Journal of Political Science 41, no. 1 (1997): 30-60; Martin Gilens, “Racial Attitudes and Opposition to Welfare,” Journal of Politics 57, no. 4 (1995): 994-1014; Kathlyn Taylor Gaubatz, Crime in the Public Mind (Ann Arbor: University of Michigan Press, 1995); and John Hurwitz and Mark Peffley, “Public Perceptions of Race and Crime: The Role of Racial Stereotypes,” American Journal of Political Science 41, no. 2 (1997): 375-401.

88 See Frank Furstenberg, “Public Reaction to Crime in the Streets,” American Scholar 40 (1971): 601-10; Arthur Stinchcombe, et al., Crime and Punishment in America: Changing Attitudes in America (San Francisco: Jossey-Bass, 1980); Michael Corbett, “Public Support for Law and Order: Interrelationships with System Affirmation and Attitudes Toward Minorities,” Criminology 19 (1981): 337.

89 Stephen Earl Bennett and Alfred J. Tuchfarber, “The Social Structural Sources of Cleavage on Law and Order Policies,” American Journal of Political Science 19 (1975): 419-38; Sandra Browning and Liqun Cao, “The Impact of Race on Criminal Justice Ideology,” Justice Quarterly 9 (Dec. 1992): 685-99; and Steven F. Cohn, Steven E. Barkan, and William A. Halteman, “Punitive Attitudes Toward Criminals: Racial Consensus or Racial Conflict?” Social Problems 38 (1991): 287-96.

90 Beckett, Making Crime Pay, 44.

91 Ibid., citing New York Times/CBS News Poll, Aug. 1990, 2-4).

92 See Beckett, Making Crime Pay, 14-27.

93 “Ku Klux Klan Says It Will Fight Drugs,” Toledo Journal, Jan. 3-9, 1990.

94 Michael Kramer, “Frying Them Isn’t the Answer,” Time, Mar. 14, 1994, 32.

95 David Masci, “$30 Billion Anti-Crime Bill Heads to Clinton’s Desk,” Congressional Quarterly, Aug. 27, 1994, 2488-93; and Beckett, Making Crime Pay, 61.

96 Justice Policy Institute, “Clinton Crime Agenda Ignores Proven Methods for Reducing Crime,” Apr. 14, 2008, available online at www.justicepolicy.org/content-hmID=1817&smID=1571&ssmID=71.htm.

97 Address Before a Joint Session of Congress on the State of the Union, Jan. 23, 1996.

98 U.S. Department of Housing and Urban Development, Meeting the Challenge: Public Housing Authorities Respond to the ‘One Strike and You’re Out’Initiative, Sept. 1997, v.

Chapter 2: The Lockdown

1 See Marc Mauer, Race to Incarcerate, rev. ed. (New York: The New Press, 2006), 33.

2 Marc Mauer and Ryan King, A 25-Year Quagmire: The “War on Drugs” and Its Impact on American Society (Washington, DC: Sentencing Project, 2007), 2.

3 Ibid., 3.

4 Ibid., 2-3.

5 Ibid.; and Ryan King and Marc Mauer, The War on Marijuana: The Transformation of the War on Drugs in the 1990s (New York: Sentencing Project, 2005), documenting the dramatic increase in marijuana arrests. Marijuana is a relatively harmless drug. The 1988 surgeon general’s report lists tobacco as a more dangerous drug than marijuana, and Francis Young, an administrative law judge for the Drug Enforcement Administration found there are no credible medical reports to suggest that consuming marijuana, in any dose, has ever caused a single death. U.S. Department of Justice, Drug Enforcement Administration, Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of Administrative Law Judge Francis L. Young, in the Matter of Marijuana Rescheduling Petition, Docket no. 86-22, Sept. 6, 1988, 56-57. By comparison, tobacco kills roughly 390,000 Americns annually, and alcohol is responsible for some 150,000 U.S. deaths a year. See Doug Bandow, “War on Drugs or War on America?” Stanford Law and Policy Review 3: 242, 245 (1991).

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

7 Skinner v. Railway Labor Executive Association, 489 U.S. 602, 641 (1980), Marshall, J., dissenting.

8 California v. Acevedo, 500 U.S. 565, 600 (1991), Stevens. J., dissenting.

9 Terry v. Ohio, 392 U.S. 1, 30 (1968).

10 Ibid., Douglas J., dissenting.

11 See generally United States v. Lewis, 921 F.2d 1294, 1296 (1990); United States v. Flowers, 912 F.2d 707, 708 (4th Cir. 1990); and Florida v. Bostick, 501 U.S. 429, 441 (1991).

12 See, e.g., Florida v. Kerwick, 512 So.2d 347, 349 (Fla. App. 4 Dist. 1987).

13 See United States v. Flowers, 912 F.2d 707, 710 (4th Cir. 1990).

14 Bostick v. State, 554 So. 2d 1153, 1158 (Fla. 1989), quoting State v. Kerwick, 512 So.2d 347, 348-49 (Fla. 4th DCA 1987).

15 In re J.M., 619 A.2d 497, 501 (D.C. App. 1992).

16 Illinois Migrant Council v. Pilliod, 398 F. Supp. 882, 899 (N.D. Ill. 1975).

17 Tracy Maclin, “Black and Blue Encounters—Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?” Valparaiso University Law Review 26 (1991): 249-50.

18 Florida v. Bostick, 501 U.S. 429, 441 n. 1 (1991), Marshall, J., dissenting.

19 Maclin, “Black and Blue Encounters.”

20 Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973).

21 See Illinois v. Caballes, 543 U.S. 405 (2005) and United States v. Place, 462 U.S. 696 (1983).

22 See U.S. Department of Justice, Drug Enforcement Administration, Operations Pipeline and Convoy (Washington, DC, n.d.), www.usdoj.gov/dea/programs/pipecon.htm.

23 Ricardo J. Bascuas, “Fourth Amendment Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches,” Rutgers Law Journal 38 (2007): 719, 763.

24 State v. Rutherford, 93 Ohio App.3d 586, 593-95, 639 N.E. 2d 498, 503-4, n. 3 (Ohio Ct. App. 1994).

25 Gary Webb, “Driving While Black,” Esquire, Apr. 1, 1999, 122.

26 Ibid.

27 Scott Henson, Flawed Enforcement: Why Drug Task Force Highway Interdiction Violates Rights, Wastes Tax Dollars, and Fails to Limit the Availability of Drugs in Texas (Austin: American Civil Liberties Union—Texas Chapter, May 2004), 9, www.aclu.org/racialjustice/racialprofiling/15897pub20040519.html.

28 David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press, 1999), 47.

29 Florida Department of Highway Safety and Motor Vehicles, Office of General Counsel, Common Characteristics of Drug Couriers (1984), sec. I.A.4.

30 Cole, No Equal Justice, 49.

31 “Fluid Drug Courier Profiles See Everyone As Suspicious,” Criminal Practice Manual 5 (Bureau of National Affairs: July 10, 1991): 334-35.

32 Mauer and King, 25-Year Quagmire, 3.

33 Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics (New York: Oxford University Press, 1997), 45; and Mauer, Race to Incarcerate, 49.

34 U.S. Department of Justice, Department of Justice Drug Demand Reduction Activities, Report No. 3-12 (Washington, DC: Office of the Inspector General, Feb. 2003), 35, www.usdoj.gov/oig/reports/plus/a0312.

35 Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America (Washington, DC: Cato Institute, July 17, 2006), 8.

36 Megan Twohey, “SWATs Under Fire,” National Journal, Jan. 1, 2000, 37; Balko, Overkill, 8.

37 Timothy Egan, “Soldiers of the Drug War Remain on Duty,” New York Times, Mar. 1, 1999.

38 Ibid., 8-9.

39 Scott Andron, “SWAT: Coming to a Town Near You?” Miami Herald, May 20, 2002.

40 Balko, Overkill, 11, citing Peter Kraska, “Researching the Police-Military Blur: Lessons Learned,” Police Forum 14, no. 3 (2005).

41 Balko, Overkill, 11, citing Britt Robson, “Friendly Fire,” Minneapolis City Pages, Sept. 17, 1997.

42 Ibid., 43 (citing Kraska research).

43 Ibid., 49 (citing Village Voice).

44 Ibid., 50; “Not All Marijuana Law Victims Are Arrested: Police Officer Who Fatally Shot Suspected Marijuana User Cleared of Criminal Charges,” NORML News, July 13, 1995, druglibrary.org/olsen/NORML/WEEKLY/95-07-13.html; Timothy Lynch, After Prohibition (Washington, DC: Cato Institute, 2000), 82; and various sources citing “Dodge County Detective Can’t Remember Fatal Shot; Unarmed Man Killed in Drug Raid at His Home,” Milwaukee Journal-Sentinel, Apr. 29, 1995, A1, and “The Week,” National Review, June 12, 1995, 14.

45 Ibid., 10, citing Steven Elbow, “Hooked on SWAT: Fueled with Drug Enforcement Money, Military-Style Police Teams Are Exploding in the Backwoods of Wisconsin,” Madison Capitol Times, Aug. 18, 2001.

46 Eric Blumenson and Eva Nilson, “Policing for Profit: The Drug War’s Hidden Economic Agenda,” University of Chicago Law Review 65 (1998): 35, 45.

47 Ibid., 64.

48 Blumenson and Nilson, “Policing for Profit,” 72.

49 Ibid., 71.

50 Ibid., 82.

51 Ibid.

52 Ibid., 83.

53 Ibid.

54 Ibid.

55 Ibid., 98.

56 Michael Fessier Jr., “Trail’s End Deep in a Wild Canyon West of Malibu, a Controversial Law Brought Together a Zealous Sheriff’s Deputy and an Eccentric Recluse; a Few Seconds Later, Donald Scott Was Dead,” Los Angeles Times Magazine, Aug. 1, 1993; and Office of the District Attorney of Ventura, California, Report on the Death of Donald Scott (Ventura: Mar. 30, 1993), available at www.fear.org/chron/scott.txt.

57 Peter D. Lepsch, “Wanted: Civil Forfeiture Reform,” Drug Policy Letter, Summer 1997, 12.

58 James Massey, Susan Miller, and Anna Wilhelmi, “Civil Forfeiture of Property: The Victimization of Women as Innocent Owners and Third Parties,” in Crime Control and Women, ed. Susan Miller (Thousand Oaks, CA: Sage Publications, 1998), 17.

59 United States v. One Parcel of Real Estate Located at 9818 S.W. 94 Terrace, 788 F. Supp. 561, 565 (S.D. Fla. 1992).

60 David Hunt, “Obama Fields Questions on Jacksonville Crime,” Florida Times-Union, Sept. 22, 2008.

61 John Balzar, “The System: Deals, Deadlines, Few Trials,” Los Angeles Times, Sept. 4, 2006.

62 Marc Mauer and Ryan S. King, Schools and Prisons: Fifty Years After Brown v. Board of Education (Washington, DC: Sentencing Project, Apr. 2004), 4.

63 Laura Parker, “8 Years in a Louisiana Jail but He Never Went to Trial,” USA Today, Aug. 29, 2005.

64 Mauer and King, Schools and Prisons, 4.

65 American Bar Association, Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (Washington, DC: American Bar Association, Dec. 2004), Executive Summary IV; adopted by American Bar Association House of Delegates, Aug. 9, 2005, www.abanet.org/leadership/2005/annual/dailyjournal/107.doc.

66 Parker, “8 Years in a Louisiana Jail.”

67 Kim Brooks and Darlene Kamine, eds., Justice Cut Short: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings In Ohio (Columbus: Ohio State Bar Foundation, Mar. 2003), 28.

68 Mauer, Race to Incarcerate, 35-37.

69 See Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford University Press, 2007), 31-33.

70 See Alexandra Natapoff, “Snitching: The Institutional and Communal Consequences,” University of Cincinnati Law Review 645 (2004); and Emily Jane Dodds, “I’ll Make You a Deal: How Repeat Informants Are Corrupting the Criminal Justice System and What to Do About It,” William and Mary Law Review 50 (2008): 1063.

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.

Chapter 3: The Color of Justice

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.

40 Correll, “Police Officer’s Dilemma.”

41 Nosek, et al., “Harvesting Implicit Group Attitudes.”

42 Ibid.

43 John A. Bargh, et al., “Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activation on Action,” Journal of Personality and Social Psychology 71 (1996): 230; Gilliam and Iyengar, “Prime Suspects”; Jennifer L. Eberhardt et al., “Looking Deathworthy,” Psychological Science 17, no. 5 (2006): 383-86 (“[J]urors are influenced not simply by the knowledge that the defendant is Black, but also by the extent to which the defendant appears to be stereotypically Black. In fact for the Blacks with [the most stereotypical faces], the chance of receiving a death sentence more than doubled”); Jennifer L. Eberhardt et al., “Seeing Black: Race, Crime, and Visual Processing,” Journal of Personality and Social Pscychology 87, no. 6 (2004): 876-93 (not only were black faces considered more criminal by law enforcement, but the more stereotypical black faces were considered to be the most criminal of all); and Irene V. Blair, “The Influence of Afrocentric Facial Features in Criminal Sentencing,” Psychological Science 15, no. 10 (2004): 674-79 (finding that inmates with more Afrocentric features received harsher sentences than individuals with less Afrocentric features).

44 See Kathryn Russell, The Color of Crime (New York: New York University Press, 1988), coining the term criminalblackman.

45 The notion that the Supreme Court must apply a higher standard of review and show special concern for the treatment of “discrete and insular minorities”—who may not fare well through the majoritarian political process—was first recognized by the Court in the famous footnote 4 of United States v. Caroline Products Co., 301 U.S. 144, n. 4 (1938).

46 Whren v. United States, 517 U.S. 806 (1996).

47 McCleskey v. Kemp, 481 U.S. 279, 327 (1989), Brennan, J., dissenting.

48 Ibid., 321.

49 Ibid., 296. Ironically, the Court expressed concern that these rules would make it difficult for prosecutors to disprove racial bias. Apparently, the Court was unconcerned that defendants, due to its ruling in the case, would not be able to prove racial bias because of the same rules.

50 Ibid., 314-16.

51 Ibid., 339.

52 United States v. Clary, 846 F.Supp. 768, 796-97 (E.D.Mo. 1994).

53 Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (University of Chicago Press, 2007), 26.

54 Davis, Arbitrary Justice, 5.

55 Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

56 See, e.g., Sandra Graham and Brian Lowery, “Priming Unconscious Racial Stereotypes About Adolescent Offenders,” Law and Human Behavior 28, no. 5 (2004): 483-504.

57 Christopher Schmitt, “Plea Bargaining Favors Whites, as Blacks, Hispanics Pay Price,” San Jose Mercury News, Dec. 8, 1991.

58 See, e.g., Carl E. Pope and William Feyerherm, “Minority Status and Juvenile Justice Processing: An Assessment of the Research Literature,” Criminal Justice Abstracts 22 (1990): 527-42; Carl E. Pope, Rick Lovell, and Heidi M. Hsia, U.S. Department of Justice, Disproportionate Minority Confinement: A Review of the Research Literature from 1989 Through 2001 (Washington DC: U.S. Department of Justice, 2002); Eleanor Hinton Hoytt, Vincent Schiraldi, Brenda V. Smith, and Jason Ziedenberg, Reducing Racial Disparities in Juvenile Detention (Baltimore: Annie E. Casey Foundation, 2002), 20-21.

59 Eileen Poe-Yamagata and Michael A. Jones, And Justice for Some: Differential Treatment of Minority Youth in the Justice System (Washington, DC: Building Blocks for Youth, 2000).

60 National Council on Crime and Delinquency, And Justice for Some: Differential Treatment of Minority Youth in the Justice System (Washington, DC: Building Blocks for Youth, 2007).

61 See George Bridges and Sara Steen, “Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms,” American Sociological Review 63, no. 4 (1998): 554-70.

62 Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).

63 Strauder v. West Virginia, 100 U.S. 303, 308 (1880).

64 Ibid., 309.

65 Benno C. Schmidt Jr., “Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia,” Texas Law Review 61 (1983): 1401.

66 See, e.g., Smith v. Mississippi, 162 U.S. 592 (1896); Gibson v. Mississippi, 162 U.S. 565 (1896); and Brownfield v. South Carolina, 189 U.S. 426 (1903).

67 Neal v. Delaware, 103 U.S. 370, 397 (1880).

68 Ibid., 402-3 (quoting Delaware Supreme Court).

69 Miller-El v. Cockrell, 537 U.S. 322, 333-34 (2003).

70 Ibid., 334-35.

71 Brian Kalt, “The Exclusion of Felons from Jury Service,” American University Law Review 53 (2003): 65, 67.

72 Michael J. Raphael and Edward J. Ungvarsky, “Excuses, Excuses: Neutral Explanations Under Batson v. Kentucky,” University of Michigan Journal of Law Reform 27 (1993): 229, 236.

73 Sheri Lynn Johnson, “The Language and Culture (Not to Say Race) of Peremptory Challenges,” William and Mary Law Review 35 (1993): 21, 59.

74 Purkett v. Elm, 514 U.S. 765, 771 n. 4 (1995), Stevens, J., dissenting and quoting prosecutor.

75 Ibid., 767.

76 Ibid., 768.

77 Ibid.

78 See Lynn Lu, “Prosecutorial Discretion and Racial Disparities in Sentencing: Some Views of Former U.S. Attorneys,” Federal Sentencing Reporter 19 (Feb. 2007), 192.

79 Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, MA: Harvard University Press, 1993), 2.

80 For a discussion of possible replacement effects, see Robert MacCoun and Peter Reuter, Drug War Heresies: Learning from Other Vices, Times, and Places (New York: Cambridge University Press, 2001).

81 See Katherine Beckett, Kris Nyrop, Lori Pfingst, and Melissa Bowen, “Drug Use, Drug Possession Arrests, and the Question of Race: Lessons from Seattle,” Social Problems 52, no. 3 (2005): 419-41; and Katherine Beckett, Kris Nyrop, and Lori Pfingst, “Race, Drugs and Policing: Understanding Disparities in Drug Delivery Arrests,” Criminology 44, no. 1 (2006): 105.

82 Beckett, “Drug Use,” 436.

83 Ibid.

84 Ibid.

85 David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press, 1999), 161.

86 Ibid., 162.

87 City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).

88 Quern v. Jordan, 440 U.S. 332 (1979); and Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989).

89 Monell v. Dept. of Social Services, 436 U.S. 658 (1978).

90 See United States v. Brignoni-Ponce, 422 U.S. 873 (1975); and United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

91 See Massey, American Apartheid.

92 For a thoughtful overview of these studies, see David Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (New York: The New Press, 2002).

93 State v. Soto, 324 N.J.Super. 66, 69-77, 83-85, 734 A.2d 350, 352-56, 360 (N.J. Super. Ct. Law Div. 1996).

94 Harris, Profiles in Injustice, 80.

95 Ibid.

96 Jeff Brazil and Steve Berry, “Color of Drivers Is Key to Stops on I-95 Videos,” Orlando Sentinel, Aug. 23, 1992; and David Harris, “Driving While Black and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops,” Journal of Criminal Law and Criminology 87 (1997): 544, 561-62.

97 ACLU, Driving While Black: Racial Profiling on our Nation’s Highways (New York: American Civil Liberties Union, 1999) 3, 27-28.

98 See www.aclunc.org, press release, “Oakland Police Department Announces Results of Racial Profiling Data Collection,” May 11, 2001.

99 Al Baker and Emily Vasquez, “Number of People Stopped by Police Soars in New York,” New York Times, Feb. 3, 2007.

100 Office of the Attorney General of New York State, Report on the New York City Police Department’s “Stop & Frisk” Practices (New York: Office of the Attorney General of New York State, 1999), 95, 111, 121, 126.

101 Ibid., 117 n. 23

102 Baker and Vasquez, “Number of People Stopped by Police Soars.”

103 Ryan Pintado-Vertner and Jeff Chang. “The War on Youth,” Colorlines 2, no. 4 (Winter 1999-2000), 36.

104 Alexander v. Sandoval, 532 U.S. 275 (2001).

Chapter 4: The Cruel Hand

1 Proceedings of the Colored National Convention, held in Rochester, July 6-8, 1853 (Rochester: Printed at the office of Frederick Douglass’s Papers, 1853), 16.

2 Approximately 30 percent of African American men are banned for life from jury service because they are felons. See Brian Kalt, “The Exclusion of Felons from Jury Service,” American University Law Review 53 (2003): 65.

3 Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute Press, 2002), 73.

4 Webb Hubbell, “The Mark of Cain,” San Francisco Chronicle, June 10, 2001; Nora Demleitner, “Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing and Consequences,” Stanford Law and Policy Review 11, no. 1 (1999): 153-63.

5 Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: The New Press, 2002), 5, citing American Bar Association, Task Force on Collateral Sanctions, Introduction, Proposed Standards on Collateral Sanctions and Administrative Disqualification of Convicted Persons, draft, Jan. 18, 2002.

6 Frederick Douglass, “What Negroes Want,” in The Life and Writings of Frederick Douglass, vol. 4, ed. Philip S. Foner (New York: International, 1955), 159-60.

7 Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (New York: Oxford University Press, 2006), 152.

8 Human Rights Watch, No Second Chance: People with Criminal Records Denied Access to Housing (New York: Human Rights Watch, 2006), ix.

9 President Bill Clinton, “Remarks by the President at One Strike Symposium,” White House, Office of the Press Secretary, Mar. 28, 1996, http://clinton6.nara.gov/1996/03/1996-03-28-president-remarks-at-one-strike-symposium.html.

10 Memorandum from President Clinton to HUD Secretary on “One Strike and You’re Out” Guidelines, Mar. 28, 1996, http://clinton6.nara.gov/1996/03/1996-03-28-memo-on-one-strike-and-you’re-out-guidelines.html; and President Bill Clinton, “Remarks by the President at One Strike Symposium.”

11 U.S. Department of Housing and Urban Development, notice PIH 96-16 (HA), Apr. 29, 1996, and attached “one strike” guidelines, HUD, “‘One Strike and You’re Out’ Screening and Eviction Guidelines for Public Housing Authorities,” Apr. 12, 1996.

12 Human Rights Watch, No Second Chance.

13 Ibid., vi.

14 Rucker v. Davis, 237 F.3d 1113 (9th Cir. 2001).

15 Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002).

16 Human Rights Watch, No Second Chance, i.

17 Martha Nelson, Perry Dees, and Charlotte Allen, The First Month Out: Post-Incarceration Experiences in New York City (New York: Vera Institute of Justice, 1999).

18 Edward Rhine, William Smith, and Ronald Jackson, Paroling Authorities: Recent History and Current Practice (Laurel, MD: American Correctional Association, 1991).

19 Gene Johnson, “‘Ban the Box’ Movement Gains Steam,” Wave Newspapers, New America Media, Aug. 15, 2006.

20 Legal Action Center, After Prison: Roadblocks to Reentry, a Report on State Legal Barriers Facing People with Criminal Records (New York: Legal Action Center, 2004), 10.

21 Ibid.

22 Harry Holzer, Steven Raphael, and Michael Stoll, “Will Employers Hire Ex-Offenders? Employer Preferences, Background Checks and Their Determinants,” in The Impact of Incarceration on Families and Communities, ed. Mary Pattillo, David Weiman, and Bruce Western (New York: Russell Sage Foundation, 2002).

23 Employers Group Research Services, “Employment of Ex-Offenders: A Survey of Employers’ Policies and Practices,” San Francisco: SF Works, Apr. 12, 2002.

24 Jeremy Travis, Amy Solomon, and Michelle Waul, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry (Washington, DC: Urban Institute, 2001); and Amy Hirsch et al., Every Door Closed: Barriers Facing Parents with Criminal Records (Washington, DC: Center for Law and Social Policy and Community Legal Services, 2002).

25 Keith Ihlanfeldt and David Sjoquist, “The Spatial Mismatch Hypothesis: A Review of Recent Studies and Their Implications for Welfare Reform,” Housing Policy Debate 9, no. 4 (1998): 849; and Michael Stoll, Harry Holzer, and Keith Ihlanfeldt, “Within Cities and Suburbs: Employment Decentralization, Neighborhood Composition, and Employment Opportunities for White and Minority Workers,” Journal of Policy Analysis and Management, Spring 2000.

26 Harry Holzer et al., “Employer Demand for Ex-Offenders: Recent Evidence from Los Angeles,” March 2003, unpublished manuscript.

27 Wilson, When Work Disappears, 40.

28 Andrew Jacobs, “Crime-Ridden Newark Tries Getting Jobs for Ex-Convicts, but finds Success Elusive,” New York Times, Apr. 27, 2008.

29 Wilson, When Work Disappears, 41.

30 Harry Holzer and Robert LaLonde, “Job Stability and Job Change Among Young Unskilled Workers,” in Finding Jobs: Work and Welfare Reform, ed. David Card and Rebecca Blank (New York: Russell Sage Foundation, 2000); see also Joleen Kirshenman and Kathryn Neckerman, “We’d Love to Hire Them But . . .” in The Urban Underclass, ed. Christopher Jencks and Paul Peterson (Washington, DC: Brookings Institution Press, 1991).

31 Ibid., 942.

32 Ibid., 962.

33 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006), 90.

34 Ibid., 91.

35 See Devah Pager, Marked: Race, Crime and Finding Work in an Era of Mass Incarceration (University of Chicago Press, 2007), 157; Steven Raphael, “Should Criminal History Records Be Universally Available?” (reaction essay) in Greg Pogarsky, “Criminal Records, Employment and Recidivism,” Criminology & Public Policy 5, no. 3 (Aug. 2006): 479-521; and Shawn Bushway, “Labor Market Effects of Permitting Employer Access to Criminal History Records,” Journal of Contemporary Criminal Justice 20 (2004): 276-91.

36 Kirsten Livingston, “Making the Bad Guy Pay: Growing Use of Cost Shifting as Economic Sanction,” in Prison Profiteers: Who Makes Money from Mass Incarceration , ed. Tara Herivel and Paul Wright (New York: The New Press, 2007), 61.

37 Ibid., 69, citing Ohio Rev. Code Ann. Sec. 2951.021 and Ohio Rev. Code Sec. 2951.021.

38 Bureau of Justice Assistance, Repaying Debts (Council of State Governments Justice Center, 2007).

39 “Out of Prison and Deep in Debt,” New York Times editorial, Oct. 6, 2007.

40 Livingston, “Making the Bad Guy Pay,” 55.

41 Ibid.

42 Ryan S. King, Felony Disenfranchisement Laws in the United States (Washington, DC: Sentencing Project, Sept. 2008).

43 American Civil Liberties Union, Out of Step with the World: An Analysis of Felony Disenfranchisement in the U.S. and Other Democracies (New York, May 2006), 4.

44 Ibid.

45 Ibid., 6.

46 See Laleh Ispahani and Nick Williams, Purged! (New York: American Civil Liberties Union, Oct. 2004); and Alec Ewald, A Crazy Quilt of Tiny Pieces: State and Local Administration of American Criminal Disenfranchisement Law (Washington, DC: Sentencing Project, Nov. 2005).

47 Sasha Abramsky, Conned: How Millions Went to Prison, Lost the Vote, and Helped Send George W. Bush to the White House (New York: The New Press, 2006), 224.

48 Ibid.

49 Gail Russell Chaddock, “U.S. Notches World’s Highest Incarceration Rate,” Christian Science Monitor, Aug. 18, 2003.

50 Abramsky, Conned, 207.

51 Ibid., 207-8.

52 Ibid.

53 Christopher Uggen and Jeff Manza, “Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States,” American Sociological Review 67 (2002): 777.

54 Manza and Uggen, Locked Out, 137.

55 Abramsky, Conned, 206-7.

56 See Kathryn Russell-Brown, The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Macroaggressions (New York: New York University Press, 1998), coining the term criminalblackman.

57 Manza and Uggen, Locked Out, 154.

58 Ibid., 152.

59 Human Rights Watch, No Second Chance, 79.

60 Willie Thompson, interviewed by Guylando A. M. Moreno, Mar. 2008, Cincinnati, OH.

61 Abramsky, Conned, 140.

62 Donald Braman, Doing Time on the Outside: Incarceration and Family Life in Urban America (Ann Arbor: University of Michigan Press, 2004), 219.

63 Ibid., 3, citing data from D.C. Department of Corrections (2000).

64 See Todd Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (New York: Oxford University Press, 2007), 121-48.

65 See, e.g., Steve Liss, No Place for Children: Voices from Juvenile Detention (Austin: University of Texas Press, 2005). Stories include youth describing the verbal abuse they receive from their parents.

66 Braman, Doing Time on the Outside, 171.

67 Ibid., 219, fn. 2.

68 See Deborah A. Prentice and Dale T. Miller, “Pluralistic Ignorance and Alcohol Use on Campus: Some Consequences of Misperceiving the Social Norm,” Journal of Personality and Social Psychology 64, no. 2 (1993): 243-56.

69 Braman, Doing Time on the Outside, 216.

70 Cathy Cohen, The Boundaries of Blackness: AIDS and the Breakdown of Black Politics (University of Chicago Press, 1999), 287.

71 Braman, Doing Time on the Outside, 174.

72 Ibid., 184.

73 Ibid., 185.

74 Ibid., 186.

75 Ibid.

76 Gerald Sider, “Against Experience: The Struggles for History, Tradition, and Hope Among a Native American People,” in Between History and Histories, ed. Gerald Sider and Gavin Smith (Toronto: University of Toronto Press, 1997), 74-75.

77 Braman, Doing Time on the Outside, 220.

78 Ibid.

79 James Thomas Sears, Growing Up Gay in the South: Race, Gender, and Journeys of the Spirit (New York: Routledge, 1991), 257.

80 Victor M. Rios, “The Hyper-Criminalization of Black and Latino Male Youth in the Era of Mass Incarceration,” unpublished manuscript on file with author.

81 Robert Toll, Blacking Up: The Minstrel Show in Nineteenth- Century America (New York: Oxford University Press, 1974), 227.

82 Ibid., 258.

83 Mel Watkins, On the Real Side: Laughing, Lying and Signifying: The Underground Tradition of African-American Humor That Transformed American Culture, from Slavery to Richard Pryor (New York: Simon & Schuster, 1994), 124-29.

84 Ibid.; see also Toll, Blacking Up, 226.

Chapter 5: The New Jim Crow

1 Michael Eric Dyson, “Obama’s Rebuke of Absentee Black Fathers,” Time, June 19, 2008.

2 Sam Roberts, “51% of Women Now Living with a Spouse, New York Times, Jan. 16, 2007.

3 See Jonathan Tilove, “Where Have All the Men Gone? Black Gender Gap Is Widening,” Seattle Times, May 5, 2005; and Jonathan Tilove, “Where Have All the Black Men Gone?” Star-Ledger (Newark), May 8, 2005.

4 Ibid.

5 Cf., Salim Muwakkil, “Black Men: Missing,” In These Times, June 16, 2005.

6 G. Garvin, “Where Have the Black Men Gone?,” Ebony, Dec. 2006.

7 One in eleven black adults was under correctional supervision at year end 2007, or approximately 3.5 million people. See Pew Center on the States, One in 31: The Long Reach of American Corrections (Washington, DC: Pew Charitable Trusts, Mar. 2009). According to the 1850 Census, approximately 3.2 million black people were slaves.

8 See Andrew J. Cherlin, Marriage, Divorce, Remarriage, rev. ed., (Cambridge, MA: Harvard University Press, 1992), 110.

9 See Glenn C. Loury, Race, Incarceration, and American Values (Cambridge, MA: MIT Press, 2008), commentary by Pam Karlan.

10 Stanley Cohen, States of Denial: Knowing About Atrocities and Suffering (Cambridge, UK: Polity, 2001), 4-5.

11 Iris Marilyn Young, Inclusion and Democracy (New York: Oxford University Press, 2000), 92-99.

12 Marilyn Frye, “Oppression,” in The Politics of Reality (Trumansburg, NY: Crossing Press, 1983).

13 See Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: The New Press, 2002); and Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute Press, 2005).

14 Negley K. Teeters and John D. Shearer, The Prison at Philadelphia, Cherry Hill: The Separate System of Prison Discipline, 1829-1913 (New York: Columbia University Press, 1957), 84.

15 See David Musto, The American Disease: Origins of Narcotics Control (New York: Oxford University Press, 3rd ed., 1999), 4, 7, 43-44, 219-20, describing the role of racial bias in earlier drug wars; and Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (University of Chicago Press, 2007), 37-90, describing racial bias in alcohol prohibition, as well as other drug wars.

16 Mary Pattillo, David F. Weiman, and Bruce Western, Imprisoning America: The Social Effect of Mass Incarceration (New York: Russell Sage Foundation, 2004), 2.

17 Paul Street, The Vicious Circle: Race, Prison, Jobs, and Community in Chicago, Illinois, and the Nation (Chicago Urban League, Department of Research and Planning, 2002).

18 Street, Vicious Circle, 3.

19 Alden Loury, “Black Offenders Face Stiffest Drug Sentences,” Chicago Reporter , Sept. 12, 2007.

20 Ibid.

21 Street, Vicious Circle, 15.

22 Donald G. Lubin et al., Chicago Metropolis 2020: 2006 Crime and Justice Index, (Washington, DC: Pew Center on the States, 2006), 5, www.pewcenteronthestates.org/report_detail.aspx?id=33022.

23 Ibid., 37.

24 Ibid., 35.

25 Ibid., 3; see also Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006), 12.

26 Street, Vicious Circle, 3.

27 Ibid.

28 Ibid.

29 See chapter 1, page 61, which describes the view that President Ronald Reagan’s appeal derived primarily from the “emotional distress of those who fear or resent the Negro, and who expect Reagan somehow to keep him ‘in his place’ or at least echo their own anger and frustration.”

30 For an excellent discussion of the history of felon disenfranchisement laws, as well as their modern day impact, see Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (New York: Oxford University Press, 2006).

31 Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998); see also Martine J. Price, Note and Comment: Addressing Ex-Felon Disenfranchisement: Legislation v. Litigation, Brooklyn Journal of Law and Policy 11 (2002): 369, 382-83.

32 See Jamie Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Washington, DC: Sentencing Project, 1998).

33 Loury, Race, Incarceration, and American Values, 48

34 See Eric Lotke and Peter Wagner, “Prisoners of the Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From,” Pace Law Review 24 (2004): 587, available at www.prisonpolicy.org/pace.pdf.

35 See Batson v. Kentucky 476 U.S. 79 (1986), discussed in chapter 3, page 146.

36 See Purkett v. Elm, 514 U.S. 765 discussed in chapter 3, page 150.

37 Brian Kalt, “The Exclusion of Felons from Jury Service,” American University Law Review 53 (2003): 65.

38 See Dred Scott v. Sandford, 60 U.S. (How. 19) 393 (1857).

39 Travis, But They All Come Back, 132.

40 Peter Wagner, “Prisoners of the Census”; for more information, see www.prisonersofthecensus.org.

41 Travis, But They All Come Back, 281, citing James Lynch and William Sabol, Prisoner Reentry in Perspective, Crime Policy Report, vol. 3 (Washington, DC: Urban Institute, 2001).

42 Dina Rose, Todd Clear, and Judith Ryder, Drugs, Incarcerations, and Neighborhood Life: The Impact of Reintegrating Offenders into the Community (Washington, DC: U.S. Department of Justice, National Institute of Justice, 2002).

43 Sudhir Alladi Venkatesh, The Robert Taylor Homes Relocation Study (New York: Center for Urban Research and Policy, Columbia University, 2002).

44 Street, Vicious Circle, 16.

45 Ibid., 17.

46 Keynote address by Paula Wolff at Annual Luncheon for Appleseed Fund for Justice and Chicago Council of Lawyers, Oct. 7, 2008, www.chicagometropolis2020.org/10_25.htm.

47 Katherine Beckett and Theodore Sasson, The Politics of Injustice: Crime and Punishment in America (Thousand Oaks, CA: Sage Publications, 2004), 36, citing Mercer Sullivan, Getting Paid: Youth Crime and Work in the Inner City (New York: Cornell University Press, 1989).

48 Ibid.

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

50 See, e.g., Douglas Massey and Nancy Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, MA: Harvard University Press, 1993).

51 Whites are far more likely than African Americans to complete college, and college graduates are more likely to have tried illicit drugs in their lifetime when compared to adults who have not completed high school. See U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Findings from the 2000 National Household Survey on Drug Abuse (Rockville, MD: 2001). Adults who have not completed high school are disproportionately African American.

52 Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (University of Chicago Press, 2007), 90-91, 146-47.

53 John Edgar Wideman, “Doing Time, Marking Race,” The Nation, Oct. 30, 1995.

54 See Julia Cass and Connie Curry, America’s Cradle to Prison Pipeline (New York: Children’s Defense Fund, 2007).

55 James Forman Jr., “Children, Cops and Citizenship: Why Conservatives Should Oppose Racial Profiling,” in Invisible Punishment, ed. Mauer and Lind, 159.

56 Wideman, “Doing Time, Marking Race.”

57 See discussion of stigma in chapter 4.

58 See, e.g., Charles Ogletree and Austin Sarat, eds., From Lynch Mobs to the Killing State: Race and the Death Penalty in America (New York: New York University Press, 2006); and Joy James, The New Abolitionists: (Neo) Slave Narratives and Contemporary Prison Writings (New York: State University of New York Press, 2005).

59 See discussion of polling data in chapter 3.

60 Glenn C. Loury, The Anatomy of Racial Inequality (Cambridge, MA: Harvard University Press, 2003), 82.

61 Ibid., 82-83.

62 Craig Reinarman, “The Crack Attack: America’s Latest Drug Scare, 1986- 1992” in Images of Issues: Typifying Contemporary Social Problems (New York: Aldine De Gruyter, 1995), 162.

63 Marc Mauer, Race to Incarcerate, rev. ed. (New York: The New Press, 2006), 150.

64 Ibid., 151

65 Ibid.

66 See Musto, American Disease, 4, 7, 43-44, 219-20; and Doris Marie Provine, Unequal Under Law, 37-90

67 Eric Schlosser, “Reefer Madness,” Atlantic Monthly, Aug. 1994, 49.

68 Mauer, Race to Incarcerate, 149.

69 The most compelling version of this argument has been made by Randall Kennedy in Race, Crime and the Law (New York: Vintage Books, 1997).

70 Tracy Meares, “Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law,” 1 Buffalo Criminal Law Review 1 (1997): 137; Stephen Bennett and Alfred Tuchfarber, “The Social Structural Sources of Cleavage on Law and Order Policies,” American Journal of Political Science 19 (1975): 419-38; and Sandra Browning and Ligun Cao, “The Impact of Race on Criminal Justice Ideology,” Justice Quarterly 9 (Dec. 1992): 685-99.

71 Meares, “Charting Race and Class Differences,” 157.

72 Glenn Loury, “Listen to the Black Community,” Public Interest, Sept. 22, 1994, 35.

73 Meares, “Charting Race and Class Differences,” 160-61.

74 See William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Vintage Books, 1997), 22, citing Delbert Elliott study.

75 Glenn C. Loury, Race, Incarceration and American Values (Cambridge, MA: MIT Press, 2008), 81, commentary by Tommie Shelby.

76 See Troy Duster, “Pattern, Purpose, and Race in the Drug War: The Crisis of Credibility in Criminal Justice,” in Crack in America: Demon Drugs and Social Justice , ed. Craig Reinarman and Harry G. Levine (Berkeley: University of California Press, 1997).

77 Loïc Wacquant, “From Slavery to Mass Incarceration,” 53.

78 john a. powell, Executive Director of the Kirwan Institute for the Study of Race and Ethnicity, personal communication, Jan. 2007.

Chapter 6: The Fire This Time

1 Salim Muwakkil, “Jena and the Post-Civil Rights Fallacy,” In These Times, Oct. 16, 2007.

2 Democracy Now, “Rev. Al Sharpton: Jena Marks ‘Beginning of a 21st Century Rights Movement,’” Sept. 21, 2007, www.democracynow.org/shows/2007/9/21.

3 See Derrick Bell, “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” Yale Law Journal 85 (1976): 470.

4 Lani Guinier, Lift Every Voice (New York: Simon & Shuster, 1998), 220-21.

5 Ibid., 222.

6 See Michael Klarman, “The Racial Origins of Modern Criminal Procedure,” Michigan Law Review 99 (2000): 48, 86; Dan Carter, Scottsboro: A Tragedy of the American South, 2d ed. (Baton Rouge: Louisiana State University Press, 1979), 52- 53; and Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1969 (New York: Oxford University Press, 1994), 28-29.

7 Jo Ann Gibson Robinson, The Montgomery Bus Boycott and the Women Who Started It (Knoxville: University of Tennessee Press, 1987), 43.

8 Martin Luther King Jr. and Claybourne Carson, The Autobiography of Martin Luther King, Jr. (New York: Grand Central, 2001), 44.

9 See Abby Rapoport, “The Work That Remains: A Forty-Year Update of the Kerner Commission Report,” Economic Policy Institute, Nov. 19, 2008.

10 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006), 97.

11 Ibid., 90.

12 Ibid., 91.

13 In 1972, the total rate of incarceration (prison and jail) was approximately 160 per 100,000. Today, it is about 760 per 100,000. A reduction of 79 percent would be needed to get back to the 160 figure—itself a fairly high number when judged by international standards.

14 Marc Mauer, Race to Incarcerate (New York: The New Press, 1999), 11.

15 Christopher Sherman, “Cheney, Gonzales, Indicted Over Prisons,” Washington Times, Nov. 19, 2008.

16 U.S. Securities and Exchange Commission, Corrections Corporation of America, Form 10K for the fiscal year ended Dec. 31, 2005.

17 Silja J.A. Talvi, “On the Inside with the American Correctional Association,” in Prison Profiteers: Who Makes Money from Mass Incarceration, ed. Tara Herivel and Paul Wright (New York: The New Press, 2007).

18 Stephanie Chen, “Larger Inmate Population Is Boon to Private Prisons,” Wall Street Journal, Nov. 28, 2008.

19 See generally Herivel and Wright, Prison Profiteers. For an excellent discussion of how surplus capital, labor, and land helped to birth the prison industry in rural America, see Ruth Wilson Gilmore, Golden Gulag (Berkeley: University of California Press, 2007).

20 For more information on racial impact statements, see Marc Mauer, “Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities,” Ohio State Journal of Criminal Law 5 (2007): 19.

21 Guinier, Lift Every Voice, 223.

22 Michael Omi and Howard Winant, Racial Formation in the United States from the 1960s to the 1990s (New York: Routledge, 1994), 84-88.

23 Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 1991), 52.

24 Michael Klarman, “Brown, Racial Change, and the Civil Rights Movement,” Virginia Law Review 80 (1994): 7, 9.

25 See ibid., arguing that Brown was “merely a ripple” with only a “negligible effect” on the South and civil rights advocacy.

26 See David Garrow, “Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education,” Virginia Law Review 80 (1994): 151, persuasively making the case that Brown was a major inspiration to civil rights activists and provoked a fierce white backlash.

27 Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006), 5, 187; William Spelman, “The Limited Importance of Prison Expansion,” in The Crime Drop in America, ed. Alfred Blumstein and Joel Wallman (New York: Cambridge University Press, 2000), 97-129; and Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (New York: Oxford University Press, 2007), 41-48.

28 See, e.g., Todd Clear, Imprisoning Communities, 3.

29 Jeffrey Reiman makes a similar argument in The Rich Get Richer and the Poor Get Prison, 8th ed. (New York: Allyn & Bacon, 2006), although he mostly ignores the distinctive role of race in structuring the criminal justice system.

30 See “Study Finds Whites Anxious About Race,” Bryant Park Project, National Public Radio, Dec. 3, 2007.

31 Fox Butterfield, “With Cash Tight, States Reassess Long Jail Terms,” New York Times, Nov. 10, 2003.

32 Marc Mauer, “State Sentencing Reforms: Is the ‘Get Tough’ Era Coming to a Close?” Federal Sentencing Reporter 15, no. 1 (Oct. 2002).

33 Abby Goodnough, “Relaxing Marijuana Law Has Some Nervous,” New York Times, Dec. 18, 2008, noting that eleven states have decriminalized first-time possession of marijuana.

34 For example, the ballot argument drafted by civil rights groups opposed to Proposition 54, a 2003 California ballot initiative that would have banned the collection of racial data by the state government, read: “We all want a colorblind society. But we won’t get there by banning information.”

35 Martin Luther King Jr., Strength to Love (Philadelphia: Fortress Press, 1963), 45-48.

36 Ibid., 31-32.

37 See Mary Frances Berry, “Vindicating Martin Luther King, Jr.: The Road to a Color-Blind Society,” Journal of Negro History 81, no. 1-4 (Winter-Autumn 1996): 137, 140.

38 Stephen Steinberg, Turning Back: The Retreat from Racial Justice in American Thought and Policy (Boston: Beacon Press, 1995), 167.

39 Fred L. Pincus, Reverse Discrimination: Dismantling the Myth (Boulder, CO: Lynne Rienner, 2003).

40 Rapoport, “The Work That Remains.”

41 For an analysis of the impact of incarceration on unemployment, poverty, and education, see Western, Punishment and Inequality in America, 83-131.

42 Jesse Rothstein and Albert Yoon, “Affirmative Action in Law School Admissions: What Do Racial Preferences Do?” National Bureau of Economic Research, Cambridge, MA, Aug. 2008, www.nber.org/papers/w14276.

43 Steinberg, Turning Back, 195-96.

44 Martin Luther King Jr., “A Testament of Hope,” in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. (New York: HarperCollins, 1986), 321.

45 Ibid., 315.

46 Lani Guinier and Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (Cambridge, MA: Harvard University Press, 2002), 114.

47 Ibid.

48 See Sentencing Project, 2008 Presidential Platforms on Criminal Justice (Washington, DC, Mar. 2008), www.sentencingproject.org/tmp/File/PresidentialCandidatesPlatforms.pdf.

49 Drew Harwell, “Obama’s Drug Use Debated,” CBS News, UWIRE.com, Feb. 12, 2008.

50 David Hunt, “Obama Fields Questions on Jacksonville Crime,” Florida Times-Union, Sept. 22, 2008.

51 United States Government Accountability Office, Report to the Chairman, Committee on the Judiciary, House of Representatives, Community Policing Grants: COPS Grants Were a Modest Contribution to Decline in Crime in 1990s, GAO-06-104, Oct. 2005, www.gao.gov/new/items/d06104.pdf.

52 John L. Worrall and Tomislav V. Kovandzic, “COPS Grants and Crime Revisited,” Criminology 45, no. 1 (Feb. 2007): 159-90.

53 Gary Fields, “White House Czar Calls for End of ‘War on Drugs,’” Wall Street Journal, May 24, 2009; see also Office of National Drug Control Policy, White House Drug Control Budget, FY2010 Funding Highlights (May 2009).

54 Guinier and Torres, Miner’s Canary, 118.

55 Ibid.

56 See Lani Guinier, “From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma,” Journal of American History 92 (June 2004): 103, citing C. Arnold Anderson, “Social Class Differentials in the Schooling of Youth Within the Regions and Community-Size Groups of the United States,” Social Forces 25 (May 1947): 440, 436; and C. Arnold Anderson, “Inequalities in Schooling in the South,” American Journal of Sociology 60 (May 1955): 549, 553, 557.

57 W.E.B. Du Bois, Black Reconstruction in America, 1860-1880 (New York: Free Press, 1935), 700.

58 Guinier, “Racial Liberalism,” 102. See also Beth Roy, Bitters in the Honey: Tales of Hope and Disappointment Across Divides of Race and Time (Fayetteville: University of Arkansas Press, 1999), 318; and Pete Daniel, Lost Revolutions: The South in the 1950s (Chapel Hill: University of North Carolina Press, 2000), 270.

59 See Derrick Bell, “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93 (1980): 518, 525; David J. Armor, Forced Justice: School Desegregation and the Law (New York: Oxford University Press, 1996), 174- 93, 206-7; and Robert J. Norrell, “Labor at the Ballot Box: Alabama Politics from the New Deal to the Dixiecrat Movement,” Journal of Southern History 57 (May 1991): 201, 227, 233, 234.

60 W.E.B. Du Bois, The Souls of Black Folk (1903; New York: Bantam, 1989).

61 For a more detailed exploration of Martin Luther King Jr.’s journey from civil rights to human rights, see Thomas F. Jackson, From Civil Rights to Human Rights: Martin Luther King, Jr. and the Struggle for Economic Justice (Philadelphia: University of Pennsylvania Press, 2006); and Stewart Burns, To the Mountaintop: Martin Luther King Jr.’s Sacred Mission to Save America (New York: Harper One, 2005).

62 For background on the nature, structure, and history of human rights, see Cynthia Soohoo et al., eds., Bringing Human Rights Home, vol. 1 (New York: Praeger, 2007).

63 Stewart Burns, “America, You Must Be Born Again,” Sojourners 33, no. 1, (Jan. 2004): 14.

64 James Baldwin, The Fire Next Time (New York: Vintage, 1962, 1993), 5-10.