6 minutes to read

It is a fact that, counting percentages of populations, more African-Americans and other “people of color” are arrested for “criminal activity” than “white” people; “white” people are less likely to be arrested for “criminal activity.”

It is a fact that, counting percentages of populations, more African-Americans and other “people of color” are tried and convicted — if they don’t take plea agreements foisted upon them by a system designed to coerce such things — of crimes in America than are “white” people; white people are less likely to end up with a conviction.

It is a fact that, counting percentages of populations, upon sentencing, more African-Americans and other “people of color” go to prison than do “white” people; “white” people who are convicted are less likely to go to prison.

It is not a fact that, counting percentages of populations, more African-Americans and other “people of color” engage in criminal activity than “white” people. I don’t care what Obama says, it’s not clear that African-Americans engage in more criminal activity than people of other ethnicities when the system itself results in skewed numbers. [1]For another critique of the President on this point, see Scott Greenfield’s post, “Don’t Blame Me, I’m Just The President.”

By the way, note the lack of quotes around the words “criminal activity” in the last paragraph. There’s a reason for this.

In the Introduction to her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander writes:

In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it. [2]Alexander, Michelle (2010-02-09). The New Jim Crow: Mass Incarceration in the Age of Colorblindness (Kindle Locations 126-133). New Press, The. Kindle Edition.

Our system is geared towards re-labeling African-Americans as criminals. I guess you could say,

“Criminal” is the new “black.”

The re-labeling starts with the children:

Each year 15 percent of African American students are suspended, compared to the 5 percent of white students. In addition, only one in 1,000 white students are expelled, compared to one in 200 African American students.

In my work as a juvenile criminal defense attorney — between 30-50% of my practice is juvenile criminal defense at any given time — “my kids,” as I call them, are seldom “white.” That’s because what’s happened is that there is a system that works to enforce racism, without appearing to enforce racism. It starts working on African-Americans and other “people of color” from the minute they start appearing in public by themselves.

Ordinary behaviors — standing in certain (nice) parts of town (or maybe just walking in public), driving in certain (nice) kinds of car, asking (nice) questions of police officers who are violating (Edit 3/21/2017: Link broken/removed.) your rights [3]This one is becoming normal for “white” people now, too. — are all perceived as “criminal activity” when the person doing those things is African-American. It is still racism: it’s just subtle, hidden, because we can pretend that it’s just “law enforcement” and not racism.

This reminds me of something I learned as a child. When I was in junior high school, we moved from Munford, Tennessee, to Hanford, California. At that time, Munford still had water fountains and other areas with signs that read “Whites Only” or “Blacks Only.” People freely used “the ‘N’ word” when talking about African-Americans, even in front of them, or to their faces. Nearby Atoka was in the same mail-delivery zone as Munford, but was literally “across the tracks,” and, at that time, was predominately “where blacks lived.” [4]I called my dad to double-check this, because Wikipedia shows surprising demographics on these two towns. His response was, “It’s been a minute or two since we lived there.” My father was roundly criticized — it is my understanding there was violence involved — for trying to integrate the Boy Scouts troops in the area. My brother was suspended from school for sharing his lunch with an underprivileged friend of his, who happened to be African-American.

It was partly because of these experiences and attitudes that our family end up in California.

And Hanford was different. Or so it initially seemed. No signs that I recall warned African-Americans that they were not welcome. I remember occasionally hearing “the ‘N’ word,” but not like when we lived in Munford, and almost never in front of, or to, an African-American.

But I soon learned that appearances are deceiving. Hanford didn’t have signs warning African-Americans where they could and could not go because…they just knew. Housing was still largely arranged by ethnicity. It is my recollection that not very many white people lived on what we called “the south side” — again, literally “across the tracks” — there was a higher concentration of black people there. And everyone still more or less “hung with their own kind.”

Racism, I learned, can and does take many forms. And even though my family lineage and name makes me “a Jew” to some people, I have always been aware that I am treated differently — “privileged,” if you will — because I am “white.” (At least, until people find out that I’m “a Jew.”) The “people of color” I have known in my life know better than I what it means to not be “white.” [5]And please don’t think that just because the police are black, that makes a difference. Check out this report about African-American police officers, who can sometimes be harder on African-Americans than white police officers. http://sociology.berkeley.edu/sites/default/files/documents/student_papers/Gardner_Clark_BNBPolicing.pdf — which incidentally, is another reason to recognize that just because Obama is technically “black” means he should be considered an authority on what it means to be Black in America.

But I was always raised to believe this was not right; that it was not fair; that it was unjust. I have a rather strong reaction to things that are unfair and not right. I think it not only is part of the reason I became a criminal defense attorney; I think it’s also why I’m so driven and — someone else noted — as a criminal defense lawyer, I “fight over everything.”

On any given day, I particularly spend some portion of it reading about, thinking about, and trying to figure out what to do about the impact of “race” on my cases, and how I can fight to ameliorate that impact. The more I read, the more videos I view, the more convinced I become that Michelle Alexander is right.

One reason the United States imprisons so many more people than any other country in the world is because our “justice” system is really just racism, updated for a post-racial world.


Leave a comment:

Your email address will not be published. Required fields are marked *

Free ePamphlet

Sign up for my newsletter and receive a free ePamphlet on "How to Hire a Criminal Defense Lawyer."

Recent Posts