White Privilege in the Face of the Law

By Guest Contributor

This article is not meant to be comprehensive as it neither discusses the depth and complexities of policing, prosecution and incarceration nor the intersections of identities. We encourage you to explore how trans and gender non-conforming people, queer people, people with disabilities and impoverished people might acutely bear the negative impacts of mass criminalization.

Nowhere is it more apparent that we do not live in a post-racial society than in the United States criminal justice system. At an incarceration rate of over 700 per 100,000 people, the United States holds five percent of the world’s population, yet a staggering 25 percent of the world’s incarcerated population (and one third of the world’s incarcerated women). This is not an easy statistic to grasp, considering that the incarceration rates of China and Russia combined are still less than that of the United States. In absolute numbers of people under correctional control, the United States again takes the gold with over 2.3 million people incarcerated and nearly five million more on probation.

Racial discrimination marks every stage of the criminal justice process, from arrest to sentencing to incarceration. While the Fourth Amendment in theory “guarantees [the] right of the people to be secure in their persons, houses, papers and effects” and guards “against unreasonable searches and seizures,” its protections have been largely undermined in recent decades. Beginning with the Supreme Court’s 1968 decision in Terry v. Ohio, legal restraints on police searches began to soften. As Michelle Alexander articulates in The New Jim Crow, so long as a police officer has “reasonable articulable suspicion” that a person may be involved in unlawful activity, “it is constitutionally permissible to stop, question, and frisk [them]—even in the absence of probable cause.” Take New York City’s infamous stop-and-frisk practices, for example. In 2012, 55 percent of the 500,000 people stopped and frisked were Black, despite the fact that the city’s Black population was only 25 percent of the whole population. Although the NYPD reports that rates of stop-and-frisk have dropped within the past three years, over 50 percent of stops target Black people, with a rate of innocence above 80 percent (NYCLU).  In Arizona, indigenous peoples were 3.25 times more likely to be stopped and searched, despite no correlation with illegal conduct. According to a database of civil rights complaints brought against law enforcement officers, U.S. attorneys have declined to prosecute cases 96 percent of the time (Justice Department, National Caseload Data; Pittsburgh Tribune Review).

The racial component of police violence can be difficult to track given that many law enforcement agencies do not report arrest-related homicides by race. In 2011, the CDC reported that Black people were more than twice as likely as white people to be killed by law enforcement. Recent estimates from the Bureau of Justice Statistics (BJS) indicate that this racial disparity could be even greater. Notwithstanding the potential margin for error in these statistics, the numbers fail to expose the gruesome and violent actions that U.S. law enforcement inflicts on Black and Brown people. As just one example of such action, Tamir Rice, a 12-year-old holding an airsoft gun in a Cleveland park, was shot and killed by two police officers before their patrol car had even come to a stop. Rice received no first aid from the offending officers, and died the following day of gunshot wounds. The officer was not indicted. It is difficult to argue that the same fate would have befallen a white child in Rice’s shoes; in a recording released after the homicide, the 911 dispatcher asks twice whether the suspect was Black or white before sending officers. Rice’s 14-year-old sister arrived at the scene and was immobilized by the police officers, handcuffed and put in the police car, unable to bring final moments of comfort to her little brother.

Incidents of police brutality that do not result in homicide are even more difficult to track. Emergency room records reveal that from 2001 to 2012, Black people suffered five times as many nonfatal injuries from law enforcement than white people. Furthermore, a study conducted by the BJS in 2008 found that “the percentage of Black people who reported experiencing the use or threat of force during their most recent contact with police was nearly three times that of white people.” These are the very people that U.S. police forces pledge “to protect and serve.” Marissa Alexander from Jacksonville, Florida, a survivor of domestic abuse, fired a warning shot through a wall, injuring or killing no one, after her husband threatened to kill her. She feared for her life since her husband had physically abused her. She was sentenced to 20 years in jail. Activism surrounding the case helped get her released after three years of serving her sentence. Florida’s “stand your ground” law didn’t seem to apply to her in the way that it applied to George Zimmerman.

Incarceration and police practices in the U.S. reflect highly racialized criminalization patterns. The U.S. imprisons a larger percentage of its Black American population than South Africa did at the height of apartheid. Latino, Indigenous and Black men are incarcerated at three, four and five times the rate of white men, respectively. This disparity extends to women as well, with Black and Indigenous women incarcerated at a rate six times that of white women and Latina women incarcerated at over two times the rate of white women (Bureau of Justice Statistics).

Like the racial overtones to police violence, racial disparities also plague sentencing practices. Though the War on Drugs may not be the primary driver of the mass incarceration boom, it is perhaps the most striking example of disproportionate treatment of Black people under the criminal justice system. Despite evidence that the rates of drug use and sale do not vary significantly among Black and white people, Black people are disproportionately arrested, charged, convicted and imprisoned for drug crimes. Three-strike policies, mandatory minimums and overall harsher drug sentencing laws mean that drug arrests that previously did not result in extensive time in prison are now four times more likely to result in prison sentences.

According to the International Centre for Prison Studies, 21.2 percent of prisoners in the U.S. (roughly 465,000 people) are un-sentenced at any given time, i.e. held in jail or prison on bail, usually awaiting trial or sentencing. If someone is unable to pay for bail, even though in the eye of the law they are “innocent until proven guilty,” they are still imprisoned, unable to go to work or take care of family members. To cite one case, 16-year-old Kalief Browder, arrested on robbery charges, spent three years in jail without a trial. Two of those years were spent in solitary confinement. Browder committed suicide two years after being released.

Incarceration’s detrimental effects are not isolated to the sentenced individual; consequences ripple within their family and community.  Not only do families of incarcerated people generally lose an income, they then have to pay, on average, about $13,000 in fines and court fees for their family member, as shown in the report “Who Pays: The True Cost of Incarceration on Families.” Costs continue throughout the sentence as families pay exorbitant phone rates and travel fees for visitation. These costs impose a tremendous burden.

Once marked by the criminal justice system, a person is also subject to an onslaught of legal discrimination. A person who has been arrested or incarcerated can be barred from jobs and schooling because of requirements to “check the box” on applications. They can also be excluded from SNAP (the Supplemental Nutrition Assistance Program, commonly known as food stamps), denied public housing benefits and stripped of their voting rights. Moreover, conditions of probation and parole can dictate where a person may live or be at any given time, with whom they can associate and when they must be in certain places. All of this is to say that even despite the most earnest attempts to reintegrate into communities, legal and structural impediments make this extremely difficult, if not impossible.

Hundreds of books on mass criminalization and its racialized components have been published and we urge everyone to further their research on this topic. The implications of what we have highlighted, however, are this: while the majority of Middlebury students regularly break the law without fear of consequences, when Black, Latino and Indigenous people behave identically, their hyper-policed bodies and minds are more likely to be criminalized, disrupting the lives of individuals and communities they interact with. Mass incarceration is part of a chain of institutions designed to strip the constitutional rights of people of color. In other words, law enforcement is not one bad apple within an otherwise functioning system; the entire tree is rotten from its core. These incarceration statistics are the synthesis of quota- and profit-driven policing, over-policing in communities of color and systematic racial discrimination within a judicial system designed in many ways to disenfranchise Black, Latino and Native people. As white people, it is essential to keep asking, whom does law enforcement protect? And how do we maintain these systems of policing and pre-emptive criminalization on the basis of race?

What we are reading:

“Thanks to Republicans, Nearly a Quarter of Florida’s Black Citizens Can’t Vote,” (The Intercept).

“Kalief Browder, Held at Rikers Island for 3 Years Without Trial, Commits Suicide,” (The New York Times).

“Native Americans are the Unseen Victims of a Broken US Justice System,” (Quartz).

“Obama Bans the Box,” (MSNBC).

Senghor, Shaka. (Writing My Wrongs: Life, Death, and Redemption in an American Prison).


Aliza Cohen ’17 is from Chattanooga, TN

Juliette Gobin ’16 is from Harrison, NY

Emma Ronai-Durning ’18 is from Salem, OR

Anna Iglitzin ’17.5 is from Seattle, WA

Annie Taylor ’16 is from San Carlos, CA