American drug laws: the new Jim Crow.

• Author: Glasser, Ira

THE 1999 EDWARD C. SOBOTA LECTURE

In 1942, over 120,000 Americans were stripped of their businesses and their homes and incarcerated for the duration of World War II.(1) They committed no offense. They were convicted of no crime. They were suspected, arrested, had their property confiscated and were imprisoned because of the color of their skin and their national origin or the national origin of their parents.

The Japanese-American internment in 1942 was an exercise in a traditional American abuse. That abuse was to substitute skin color and national origin for evidence, and to punish on that basis alone.

When I say that the Japanese-American internment was a traditional American abuse, I mean that it did not occur in a cultural, legal or political vacuum. It was one of the worst abuses the United States government ever visited upon its own citizens, but it was not the only such abuse.

During the time of the internment, Jim Crow laws(2) and formal racial segregation existed in the American South and was so reified that virtually no one in this country could imagine it ending. A nation that had long ago learned to tolerate and accept Jim Crow laws (victimizing African-Americans) was well-equipped and well-prepared to accept internment (victimizing Japanese-Americans). A kind of unified field theory of color discrimination existed back then, and thrived upon the same misbegotten principle, which, except in rare instances, went largely unchallenged.

Well, now it's fifty-seven years later, and we like to congratulate ourselves. The country likes to congratulate itself. The polls reflect that we've congratulated ourselves. And even Congress, even this Congress, congratulates itself on being past all that. Jim Crow laws are a thing of the past. We don't punish on the basis of skin color anymore, we tell ourselves. Now, what disparities exist are predominantly based on class and economics.

The Japanese-American internment is now universally recognized as something we're all ashamed of, and even Ronald Reagan, in 1988, came to call it an act of war hysteria and racism.(3) He was a tad late. The American Civil Liberties Union called it that in 1942. But that's often the way it is with expressions of civic morality. It's important to be there when the immorality occurs, so that something can be done about it. Retrospective morality is too easy, and rarely helps the victims. And so it must be said--now, not later--that in the United States today we are not yet past using skin color as a substitute for evidence and a proxy for suspicion.

On our highways, on our streets, in our airports, and at our customs checkpoints, skin color once again, irrespective of class, and without distinctions based on education or economic status, skin color once again is being used as a cause for suspicion, and a sufficient reason to violate people's rights.

We all know what the statistics are, or at least most of us know what the statistics are. In places like Maryland, for example, one of the few states where we've been able to gather systematic statistics, 17% percent of the drivers along a stretch of I-95, outside of Baltimore, are African-American.(4) But 73% percent of those who are pulled over, stopped, and subjected to extensive, humiliating searches are African-American.(5) Nor is this color discrimination limited to targeting African-Americans. Twenty one percent of all drivers along that stretch are racial minorities--African-Americans, Latinos, Asians, and others.(6) Yet 80% of those pulled over and subjected to searches are minorities.(7) That degree of statistical disproportion is highly unlikely to be the product of chance. In fact, it is not the product of chance. It is the product of purpose.

Nor is Maryland an isolated instance. In those few states where we have been able to gather similar systematic statistics, like New Jersey(8) and Pennsylvania,(9) the same kinds of disparities have emerged. In other states where we have not yet been able systematically to gather statistics, the examples are legion and coming in at the rate of hundreds a day. These states include California, Oklahoma, Tennessee, Texas, Wisconsin, South Carolina, Oregon, Rhode Island, North Carolina, New York, Nebraska, Michigan, Maine, Massachusetts, Kentucky, Florida, Indiana, Connecticut, Colorado, and Arizona.(10) If I've left any of your states out, I'm sorry. I'm sure it's going on there, too. We just don't know about it yet. It's a little bit like the secret bombing of Cambodia. You remember the secret bombing of Cambodia. The government went wild keeping the bombing in Cambodia a secret. And for a long time, it was a secret from us. But it was never a secret to the Cambodians.

Racial profiling on our highways has long been a secret from most Americans, and from virtually all white Americans. But it's never been a secret to its victims. There seems to be almost no one of color who has not been victimized by this practice or who does not know somebody close to them who has. It reminds me of the kind of situation that was reflected in the pamphlets of the American Revolution that chronicled the ubiquitousness of the general searches by British soldiers who came often and regularly into people's homes and ripped up furniture with bayonets looking for violations of the Stamp Act.(11) These searches were so ubiquitous, there seemed to be virtually no American colonist who had not been victimized by such searches--or did not know somebody close to them who had been victimized. Many historians regard anger over that colonial practice as the major incendiary spark of the Revolution.(12) And it was because of the anger about that kind of intrusion that the Fourth Amendment was passed after the Revolution.(13) That was the first and last time in American history where the majority of the population vigorously supported the Fourth Amendment. The reason was instructive. Most of them had their rights violated, or knew someone close to them who did, and they didn't like it, would not tolerate it. And that's why they insisted that a Fourth Amendment be included within the Bill of Rights that became a political condition of ratifying the Constitution.

The success we have had over 200 years making this a country where most people have never suffered a violation of their Fourth Amendment rights makes it peculiarly difficult to defend Fourth Amendment rights for those few--especially when racially defined--whose rights are still commonly violated and always at risk. For when most Americans have not experienced such violations themselves, and do not even know about how pervasive such violations are to Americans of color, no constituency of support from the majority to end this abuse can be built. And so our first challenge is to publicize as widely as possible what is going on.

The fact is that if only a minority of American citizens had their Fourth Amendment rights violated the majority who did not would not be automatically sensitive to that violation, especially if they did not know about it. And when the violated minority is defined by skin color, it makes the problem immensely worse. And that is the problem we face today. This has gone on for years, and never been a secret to its victims. From time to time, a lawsuit or a press release has called attention to the violation, but it has always been met with official denials, which in the absence of sufficient proof, have prevailed. Cops have denied it, elected officials have denied it, and now that they can no longer deny it, they have begun the process of justifying it.

It is ubiquitous. It is happening in every state. And you have to ask yourself: in a country in which police power is so decentralized, 14,000 police departments, most of them don't talk to each other, really, how is it that this practice spreads? How is it that it's so uniform? Well, that's not an accident either. It's uniform because in 1986 the Drug Enforcement Agency (DEA) started something called Operation Pipeline.(14) The purpose of this program was to interdict drugs, and to get drug couriers. And to implement this program, they have brought in to date some 27,000 state troopers from 48 states to teach them how to spot a car that is likely to be carrying drugs on the highways.(15)

They are taught to look for things like: Is there an air freshener hanging from the rearview mirror? Because what would you use a freshener for but to hide the telltale signs of marijuana smoke? If you have a bumper sticker on your car that indicates you've been to Jamaica (not Queens) that raises the odds that there are drugs inside that car, and, of course, there's skin color, especially if the driver is black and the car expensive. The plain fact is that the drug war hysteria has become an engine for the restoration of Jim Crow justice in this country, just as the real war hysteria was an engine for racial injustice in 1942.(16)

It is important to talk about the federal DEA training program because many public officials who can no longer deny the fact of racial profiling would like us to believe it is the work of rogue cops. But we are not talking about freelance cowboys here and there who violate rights. No, we are not talking about rogue cops. We are talking about rogue policy. We are talking about rogue leadership. We are talking about a national policy which is training police all over this country to use traffic violations, which everyone commits the minute you get into your car, as an excuse to stop and search people with dark skin. Most of us are not familiar with the full range of traffic violations, but in fact there is virtually no car on the road, when it's stopped, much less when it's going, that does not violate some aspect of the local traffic code.

Indeed, one of the peculiar results of racial profiling is that young blacks and Latinos are now the most educated people in this country on the traffic code. They know all the...