Justice While Black

Helping African-American Families Navigate and Survive the Criminal Justice System

Robbin Shipp, Nick Chiles

• Publisher: Agate Bolden
• Year: 2014
• ISBN:
  9781572847415
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

An essential guide for Black Americans to understanding the criminal justice system, and why it continues to see Black men as targets and as dollar signs. Justice While Black is a must-read for every young Black male in America—and for everyone else who cares about their survival and well-being. The book provides practical, straightforward advice on how to deal with specific legal situations: the threat of arrest, being arrested, being in custody, preparing for and undergoing a trial, and navigating the appeals and parole process. The primary goal of this book is to become a primer for African Americans on how to avoid becoming ensnared in the criminal justice system. While the precarious safety of Black males has received renewed interest in the past year because of the deaths of young men like Daunte Wright and Ryan LeRoux, the fact is that this group has always been under threat from the armed guardians of the White social order. The tactics have been modernized, but the impact is still devastating—we are witnessing an epic criminalization of the African-American community at levels never before seen since the end of slavery.

Chapter 1: Officer Friendly Isn’t Your Friend

Everything You Need to Know about Racial Profiling

IN ARIZONA, it’s Hispanics.

In the South, it’s African Americans.

In California, it’s Hispanics and African Americans.

In New York City, it’s everybody with brown skin—Arabs, African Americans, Hispanics.

Targets. All.

Victims.

For no reason other than the color of their skin. The texture of their hair. The language they speak. The country where they were born.

We have become a nation where many police forces have resorted to quick and easy racial identifiers to determine who is suspect, who is criminal, who should be locked up. In recent years this practice has come to be known as “racial profiling,” but for groups like African Americans it has long been a dispiriting, inescapable part of our existence. For African Americans, it can be called, simply, “life.”

Though the US Constitution and US courts prohibit racial profiling, the practice is still prevalent across the nation. Stopping it appears to be as tricky as removing hate from the human heart. Hardly a week goes by without another alarming media report chronicling another outrageous case of a racist cop, an overly aggressive retail store clerk, or an out-of-control school security officer singling out a person of color for some outrageously heinous act. These stories race across the Internet as fleet as a Beyoncé–Jay Z rumor, spreading outrage and consternation in their wake.

Freedom from official tyranny, from an overzealous state, is one of those rights that most Americans take for granted. We step out of our front doors expecting a form of invisibility from law enforcement—don’t call us, we’ll call you. Until we summon them, we don’t expect much interaction with the police.

But for black men under 40, that expectation of invisibility is just a fantasy. Sixty years after Ralph Ellison published his aching cry against the black man’s irrelevancy and powerlessness in Invisible Man, the black man ironically is now all too visible in the eyes of American law enforcement. From the West Coast to the East, from the frigid North to the sweltering South, black boys and young black men move through their days enveloped in a cloak of suspicion. When many of us consider the stunning statistics concerning black boys and the criminal justice system, our response tracks along the lines of “Well, if they didn’t commit any crimes, they wouldn’t be going to jail.”

But that thinking misses the cold efficiency of the prison-industrial complex, which requires a steady supply of bodies—suspects, defendants, inmates, ex-cons on probation—to sustain itself. In certain neighborhoods in certain cities of this nation, it seems nearly impossible for a black boy to make it to manhood without being sucked into the system. In Washington, DC, an estimated three out of four young black men—and nearly all of those from the poorest neighborhoods—can expect to serve time in prison. In some of our major cities, as many as 80 percent of young black males have criminal records.

In 2003, the Bureau of Justice Statistics released a report that was received like a nuclear bomb in many quarters: One in every three young black men in the US could expect to be incarcerated at some point in his life.

And though educators and activists in many communities report that the circumstances facing black females in this country have grown increasingly precarious, black males are much more likely to wind up in prison. While the US prison population in 2009 was 39.4 percent black, that number consisted of 841,000 black males and 64,800 black females (out of a total prison population of 2,096,300 males and 201,200 females), according to the US Bureau of Justice Statistics. Currently there are thirteen black males in prison for every black female.

Racial profiling takes many sinister forms in the US, stimulated by a toxic mix of stereotyping, bias, and laziness. One of the most far-reaching is expressed in the sentencing disparities evident in many areas of the criminal justice system, most notably in drug cases.

Though blacks and whites use marijuana in roughly the same proportions, a report by the ACLU found that in 2010 blacks were approximately 4 times more likely than whites to be arrested for marijuana possession—a “crime” that isn’t even a crime any more in parts of the country that have legalized marijuana.

In Washington, DC, blacks were an astounding eight times more likely than whites to be arrested for marijuana possession.

I’ve seen these disparities firsthand in my law practice, over and over again. When I got out of law school, I tried to approach the law with the mindset of race neutrality, wanting to believe that, indeed, the law is colorblind. But over time, I had to let go of that delusion, confronted with some very harsh realities.

While I was handling a seemingly endless stream of cases involving young black males being sent to prison for simple drug possession, I saw that the judicial system often had different ideas about how to handle cases involving white male defendants. I saw a white man in a rural Georgia county arrested for drug manufacturing—he was growing pot in his house—receive a sentence of just three to five years on probation. That was it. For a manufacturer, arrested with the drugs and the manufacturing equipment in his house.

The case of this white manufacturer was fresh in my mind when the court appointed me to represent a young black male who had been arrested for selling crack cocaine. It involved a simple one-hit sale of a small quantity of the drug. And I was going before the same judge who earlier gave the white manufacturer a probated sentence. The prosecutor wanted my client to go to prison, but I had another resolution in mind. I told the court about the extraordinary circumstances that accompanied his drug sale—his brother had just been killed saving the life of an elderly lady suffering from dementia who had wandered into the street. Still grappling with grief, he went out and sold crack. I admitted to the judge that this wasn’t the best way to handle grief, but he was wracked with considerable pain.

The judge sentenced my client to probation and a stay at a diversion center. The public defenders in the courtroom were stunned—they told me it was the best plea deal they’d ever seen. They said that this kind of plea was virtually unheard of in that county, where prison was seen as mandatory if you pled guilty to a drug sale. No exceptions. Before the judge announced the sentence, in my head I was grappling with the question of whether to bring up the case of the white manufacturer if the judge announced that he was sending my client to prison. Fortunately, the judge did what I had hoped. I would like to think that the judge modified his standard sentencing because of the extraordinary distress the defendant was enduring, but as I look back now, I suspect that the judge knew that I was aware of the sentence he gave to the white manufacturer. I hope he knew he would have to come correct, likely thinking something along the lines of, Oh no, this crazy black woman attorney is going to raise holy hell.

These drug possession cases, which often begin with some type of racial profiling practiced by the police, are now the lifeblood—or the cancer, depending on where you sit—of the American criminal justice system. According to the FBI’s annual Crime in the US report, of the 12.2 million arrests in the US in 2012, only property crime (1.64 million) was more common than drug possession (1.55 million). In recent years, drug possession has often meant just marijuana possession—nearly half of the drug possession arrests in the FBI report were for marijuana.

The brutal “War on Drugs” that has raged in this country since the 1980s—Michelle Alexander brilliantly revealed in The New Jim Crow: Mass Incarceration in the Age of Colorblindedness that the war was waged to create a steady supply of defendants for the prison-industrial complex—initially focused largely on the explosion of crack in poor communities of color. But as the crack epidemic waned in the late 1980s, law enforcement agencies shifted to the easiest of targets: marijuana.

In 2010, according to the ACLU, more than 20,000 people were incarcerated simply for possessing marijuana. The 889,133 marijuana arrests in 2010—a tally that comes out to one arrest every 37 seconds—was 300,000 more than arrests for all violent crimes combined.

Imagine how different black communities would look if law enforcement directed its resources away from marijuana possession arrests and concentrated on crimes of greater import to society. Imagine how much better the lives of a generation of black males—and the lives of their families and children—would have been if they had been free to explore their dreams and utilize their talents, and rather than being incarcerated, they had instead received counseling and treatment. Imagine how much better off our entire nation would be if those black males had been free to do that.

Since the 1970s, criminal defendants in Georgia had access to a sentence review panel to which they could appeal sentences that might be overly harsh. The panel, which was made up of three state judges, would consider the facts of the case and sometimes reduce sentences—though it only happened in about 3 percent of the approximately 1,000 cases sent to the panel every year. This provided an essential check and balance to a system that in many cases saw huge disparities in sentences imposed by judges throughout Georgia’s judicial circuits. At least it did until 2007, when it was abolished.

Other states, such as Maryland, Montana, and Maine, still have sentencing review panels similar to those that used to operate in Georgia—and I should point out that a few of those panels have been under attack in recent years.

I don’t think I’m exaggerating in saying that the review panel in Georgia was despised by most prosecutors, sheriffs, and other law enforcement entities. But in a state like Georgia, where rural authorities could exploit their isolation and autonomy, often to the detriment of African-American defendants, it was an important final protection against prosecutorial and judicial overzealousness and bias.

But finally, after years of much fuming in some quarters about the existence of the panels, one judge had had too much. When the review panel seriously reduced the sentence of a black man she had slapped with a harsh sentence—a man whose record had been fairly clean until the offense in question—this judge, after first attempting to stop the Department of Corrections from enacting the panel’s decision (reduction of the defendant’s sentence), held a hearing on a motion of the prosecutor and declared that the sentence review panel was unconstitutional. In a 2003 opinion, the Georgia Supreme Court disagreed with that decision, but did so due to that judge lacking the subject matter jurisdiction to make that decision. This ruling set up a lobbying effort by the same judge for the Georgia legislature to eliminate the sentence review panel. While I was serving in the Georgia state legislature as a state representative (from 2007 to 2009), during the 2007 legislative session the Republican-controlled body—my colleagues on the other side of the aisle—passed a bill that abolished the sentence review panel. For me, this was yet another painful reminder of the extent to which state legislatures in the US dictate the rules by which we live our lives—usually without most Americans ever realizing it. For African Americans, these state legislatures are puppet masters that secretly control and circumscribe our lives. Like the Wizard of Oz, they hide behind a curtain of anonymity—a curtain created by the indifference of a public that rarely pays attention to the actions of the legislatures and a media that doesn’t effectively cover them.

In recent years, Georgia has begun to funnel large amounts of state funding into treatment programs for methamphetamine addicts. If you aren’t aware, meth has become the drug of choice for suburban and rural white kids. In creating diversion and treatment programs, the state can offer an alternative to sending these kids to prison. As I have shown, the prisons are reserved for a different (darker) population.

The most common form of racial profiling occurs when a police officer pulls over one or a group of young black males in an automobile. The vehicle stop is the reveille, the bugle call that initiates the entire legal drama that many of us have come to describe as “driving while black.”

It is important to recognize that in the minds of the police, everything is about justifying the stop. As long as they have a justification, they can legally stop anyone they want. That means much of an officer’s behavior can be understood by considering his primary motivation during every stop he makes: finding the justification to make the stop rise to the legal definition of “reasonable.” If the case makes it to court—or at least comes to the attention of a defense attorney—this is where much of that attorney’s efforts will focus.

“Officer, why did you stop this young man?”

Though it may be obvious to some, I need to point out here that police officers are not always white. The imperative to slap handcuffs on as many wrists as possible isn’t limited to white cops. There have been many cases across the country, including in states like Florida and Texas, where black officers were accused of racial profiling. And when I say police officer, I’m really talking about the patrolling forces in counties and municipalities with the legal authority to make arrests. While this usually means a police department in an urban setting, it could also mean sheriff’s departments in rural or suburban settings. In my experience, police officers tend to share a mindset: Control of the streets is an epic battle of us (law enforcement) versus them (the rest of society).

These police stops can begin wit...