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Stephen Gottlieb: The New Jim Crow

 While coming to record last week's commentary, I was listening to Michelle Alexander on Alternative Radio. If you haven’t heard her or read her book, The New Jim Crow, I strongly recommend it. Some of us knew the basic facts but she fills in the details and makes the argument brilliantly.

I want to elaborate something implicit in her talk but not fully expressed – what she described is why civil liberties matter, one of the major reasons the ACLU was formed, and why Alexander was an attorney for the ACLU of Northern California.

Alexander’s case revolves around these issues:

Racial profiling draws African-Americans into the criminal system with little regard to their behavior. In a vicious circle, racial profiling generates criminal records which are then used to justify more racial profiling. The numbers are far out of proportion to African-American participation in crime or any of the other negative stereotypes people have.

The threat of long penalties in the plea bargaining system pushes defendants to plead instead of insisting on their innocence – creating assembly line justice for prosecutors and defendants. When freed, criminal records mean a lifetime of discrimination in almost every aspect of life. Partly as a result, the war on drugs drives a highly punitive criminal system that does far more harm than good.

The result of course is worse for all of us. The criminal justice system is misdirected, leaving serious criminals at large, spending large sums to keep people in prison for minor crimes, and undermining the constitutional protections we rely on to keep us all safe and free.

Every piece of this is and has been a civil liberties issue given the protections we are supposed to have under the Bill of Rights:

Racial profiling – the idea that a policeman can stop any of us because he doesn't like our looks, has a stereotype or prejudice – is a violation of the Fourth Amendment. Most people don't realize how common racial profiling is, unless it is done to them. We were making progress when the 9/11 attacks got in the way. It remains a huge civil liberties issue.

Civil liberties are about keeping the authorities from targeting any of us because of looks, color, faith, background, politics or anything but participation in a crime. That's what a large part of the Bill of Rights is about – to protect us from abuse by authorities. Otherwise, we're at risk of being shaken down, humiliated or framed. That happens much too often in many parts of the world. As many lawyers know, and as Michelle Alexander has brilliantly demonstrated, it happens much more in this country than we want to believe.

We actually have a Supreme Court that wouldn't let a federal judge take a look to get the facts when she had reason to believe discrimination was affecting prosecutions in her courtroom.

The so-called war on drugs has made many of these harms possible, with harsh penalties for very minor possession, pressuring judges to narrow constitutional protections we all depend on. It has taken aim more on African-Americans than on drugs, incarcerating large, and disproportionate numbers of our African-American fellow citizens. For those reasons the civil liberties community has long opposed the war on drugs. The New York Civil Liberties Union was deeply involved in the battle to reduce the extremely harsh sentencing known here as the Rockefeller drug laws.

So go ahead and read Alexander’s book and let her shock you with the truth.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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