This story is part of an editorial series examining racial discrimination as the driving force behind mass incarceration in the United States, in partnership with Ava DuVernay’s ‘13TH.’
“Everybody knows that the Thirteenth Amendment to the Constitution says that, ‘There shall be no slavery in the United States.’ Most people don’t know that that is a lie,” Ava DuVernay tells Complex.
“There’s a little clause, a little loophole that says, 'except.' And the exception is… 'Except if we think you are a criminal.’” Illuminating the harrowing clause, DuVernay explains the title of her most recent film The 13TH. The powerful documentary examines the criminalization of color in America, charging racism as the driving force behind mass incarceration. “There was no more slavery, but they still needed work and they didn’t want to pay for it,” DuVernay adds. “So they started criminalizing black people aggressively for standing around, loitering, not having a job, vagrancy. For every little thing they could find.”
Indeed America has accumulated countless laws criminalizing common behaviors and increasing our potential for punishment through the justice system. Some were created implicitly to target minority communities, while others are unequally applied to people of color living otherwise inconspicuous lives. These regulations and practices are so baked into daily life that we rarely stop to consider how startlingly intrusive or unfair they are.
In the interest of making that clear, we've compiled ten simple questions. If you answer yes to any of them, you may be a committing a crime, although your chances of being arrested hinge on the color of your skin.
Have you ever skipped school or had a kid who skipped school a few days a year?
Last month, 34-year-old Jessica Carpenter of Bishop, Georgia, faced jail time because one of her three children had five unexcused school absences, while the other two had six each.
Carpenter was the first victim of a new local law holding parents criminally responsible for children between the ages of 6 and 16 skipping school. Variants of that law exist in many states, and in some children can also be fined or face detention for repeatedly missing school, despite education experts’ assertions that such punishment does little to improve attendance.
Truancy is most common in low-income and inner-city communities—often majority minority areas. These crackdowns are arguably just one manifestation of the school-to-prison pipeline, a phenomenon in which minority children face disproportionate punishments for common problems, decreasing their chances of educational success.
Have you ever turned your music up late at night?
In August cops arrived at Lakisha Smoot’s home in Schenectady, New York, after a neighbor complained about loud music at night. She claims that after she denied the offense and walked away, the cop tackled and detained her (for a noise violation and obstruction of justice, she later learned), ignored her asthma attack in a holding cell, and half-drowned her in a toilet.
Anecdotally it seems like noise ordinances affect white people as much, and sometimes as harshly, as minorities. However the few existing reviews of local laws show that cops disproportionately confront minorities with them. One study from 2000 found that in one town cops seemingly used car stereo noise violations as an excuse to confront minorities, searching out additional crimes.
Have you ever cracked open a beer on your porch?
In 2012, Julio Figueroa was sitting outside his Brooklyn home, drinking beer out of a cup, when a cop came and cited him.
Most states restrict public drinking, sometimes extending “public space” to your porch or the land adjacent to your home. New York is a notorious case study in how these laws can be applied unequally. In his 2012 dismissal of Figueroa’s citation, a state judge determined that about 85% of such summonses were for black or Latina/o citizens, while less than 5% were for white people.
Have you ever forgotten about or found yourself unable to pay a minor ticket?
A few years ago, the city of Jennings, Missouri, issued Edward Brown a citation for letting his grass grow too high. Later, they condemned his house and cited him for trespassing, among other things. Brown eventually owed the town $464, while living on a monthly social security check for $488. He couldn’t and didn’t pay. So, in 2009 the city started to jail him, sometimes for a month at a time, as punishment.
In many municipalities, people who don’t show up in court or pay fines face increased fees and jail time. Jailing people because they can’t pay fines is unconstitutional. So municipalities just don’t vet their ability to pay. Cities with heavy “broken windows” policies often pepper lower-income and minority neighborhoods with fines, pegging whole communities (like Ferguson and nearby towns) with arrest warrants. This creates what the ACLU calls a two-tiered justice system in which rich, predominately white communities who can pay their fines avoid the spirals of criminalization imposed on others.
Have you ever mouthed off to a cop?
In September 2014, 16-year-old Thai Gurule reportedly yelled,“don’t fucking clap your hands at me,” at a cop flagging him. Minutes later, Gurule was on the ground, charged with two types of assault, criminal threats, interference with public safety, resisting arrest, and disorderly conduct.
Gurule’s case was discarded by a local Oregon judge who called his offense: “failing the attitude test.” Your right to curse out or otherwise irk cops with relative impunity is protected by the courts. But anyone pissing off the police can still face charges thanks to the vagueness of ordinances like disorderly conduct. Regional studies prove the expected: these charges are often used disproportionately against minorities.
Have you ever tried to film an officer arresting someone?
Last month, 79-year-old Arkansas State Representative John Walker taped a black man being arrested during a traffic stop. An officer told Walker to leave or be arrested. Walker told the cop to arrest him. So he did.
In theory, you have the right to film police encounters in public. There’s just one glaring caveat: cops have the right to stop you if there’s a reasonable chance you could interfere with maintenance of order, crime scene integrity, or victim privacy—broad limits applied at cops’ discretion.
Have you ever hung out by the side of a building?
Last year Gustavo Barahona-Sanchez and Jose Adan Fugon-Cano, two undocumented Honduran immigrants, were standing near a Motel 6 in Louisiana, waiting for a construction gig to materialize. Instead, they got picked up by local authorities for loitering, pegged for their immigration status, and referred to border patrol for deportation.
Broad loitering and vagrancy laws, long used to criminalize lower-income and minority communities, fell apart when their use against civil rights era activists turned public opinion. But many municipalities now use modern iterations banning specific activities like obstructing a public walkway. They’re not just used to target immigrants, but wider minority groups as well, as a number of recent regional studies on arrests under these laws have shown.
Have you ever driven a car?
In May 2014, Rufus Scales was driving with his brother in North Carolina when he was stopped for a few obscure infractions, like not putting a flag on the scrap metal in his pickup bed. He was uncertain about whether he should open the car door for the officer, but soon found himself battered, with four tickets and an assaulting an officer charge (later dismissed).
Traffic stops are Americans’ most common interactions with cops, accounting for 42% of such contact. That makes sense, given that traffic codes are so detailed that most people will commit an infraction allowing the cops to pull them over if they drive more than a few blocks. But national analyses show black drivers are pulled over at a higher rate than other groups. Local data assessed by major media outlets show that these stops are also often for obscure or nonexistent traffic violations and correspond to higher rates of searches (although they unearth evidence of other crimes at lower rates than when they search white drivers they’ve pulled over) and uses of force, which (as with Sandra Bland in 2015) can easily turn deadly.
Have you ever walked around with a few joints’ worth of weed on you?
In October 2010, police in incarceration-happy Louisiana stopped Bernard Noble on his bike. They found 2.8 grams of pot on him. This offense, plus prior non-violent drug possession charges, got him 13.3 years with no parole and no chance of clemency for at least a decade.
According to a 2011 ACLU analysis, despite similar rates of drug usage across races, black people were 3.7 times more likely than white people to be arrested for marijuana possession nationally—30 times in some counties. That bias holds for drug arrests generally—and dovetails with more vigorous prosecution for black arrestees. It’s easy, in over-policed black communities, to build a serious criminal history for something white college students indulge in blithely. If Colorado is any indication, that might not change with legalization. There, underage possession arrests have increased, seemingly targeting black communities more heavily than before.
Have you joined an informal betting pool?
Last month, police in Alabama, found betting slips, spreadsheets, and $6,481 in cash in a warehouse, suggesting that Danny Charles Carter, Jr. and Vincent Deon Reeves were running an underground betting operation. They were charged with promoting gambling and first-degree unlawful possession of gambling records.
The FBI recorded fewer than 4,000 gambling arrests last year. Yet they showed the greatest racial disparity of any class of crime the feds track, with black people making up 56.4% of all arrestees, despite being 13% of the national population. White people account for under 29% of arrests, despite making up 63% of the population. If you’re organizing anything beyond a small, social game—and making profits beyond your winnings—you face serious jail time and fines.
Big picture: The breadth and vagueness of many American laws mean that most of us have likely recently committed a crime. You may not think of yourself as a criminal because you’re not targeted for these infractions. If you’re black, brown, or otherwise marginalized, though, there’s an infinite list of ways you can be criminalized for seemingly benign activities. And let’s face it, at some point in your life, you probably will be.