In 1963, after Sam Cooke was turned away from a hotel in Shreveport, Louisiana, because he was black, he wrote “A Change Is Gonna Come.” He was right. The next year, Congress passed the Civil Rights Act of 1964, which dismantled a cornerstone of the racial caste system known as “Jim Crow” by banning discrimination in employment and public accommodations. Change seemed to be coming in other areas of American law as well. Congress followed with the Voting Rights Act of 1965, and during the 1960s the Supreme Court waged a “Due Process Revolution” that established more criminal defense rights, such as the guarantee of state-funded counsel for indigent suspects and defendants. The decade seemed poised to bring about a more equal and just America.
Today, two generations later, American society is confronting a carceral state that Michelle Alexander has called “the new Jim Crow.” Abundant statistics show what is now an undeniable fact: people of color, especially black people, are overrepresented and treated unequally in the criminal justice system. According to the most recent Bureau of Justice Statistics report, blacks make up 33 percent of the prison population, nearly triple their 12 percent share of the US adult population. Many more individuals, charged with low-level offenses, may not be incarcerated but end up in what legal scholar Issa Kohler-Hausmann calls “misdemeanorland,” where they are subject to prolonged oversight that requires them to demonstrate good behavior before a judge will dismiss the charges against them. Unsurprisingly, this legal purgatory is racially skewed as well.
These disparities in large part reflect unequal law enforcement. In New York City, for example, blacks are stopped more frequently than whites, even after one accounts for neighborhood crime rates. In 2013 54 percent of all police stops were of blacks while 12 percent were of whites (29 percent were of Hispanics). This finding, based on the police department’s own records, prompted a federal judge to hold the city liable for its unconstitutional stop-and-frisk policy in the 2013 case Floyd v. City of New York.
In the rest of the country, where driving rather than walking is the norm, most people’s interactions with the police occur in their cars, and blacks experience starkly different traffic stops from whites. The Stanford Open Policing Project has examined data from twenty-one state patrol agencies and twenty-nine municipal police departments, which showed that officers stopped black drivers at higher rates than white drivers. Black people are not only searched more frequently than whites once they have been pulled over; they are often searched with little or no cause for suspicion. Even if a cop finds nothing incriminating, a “routine” traffic stop can still…
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