Monthly Archives: July, 2016

Our Carceral State

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French philosopher, Michel Foucault once famously argued that society operates as a vast prison. While Foucault’s concerns were with an individual’s freedom constrained in such a system, maybe a more direct analogy to our current situation is how our judiciary and police force is used to control and literally imprison a vast swath of our lower classes.

It is no secret that in Ferguson, Missouri, where Michael Brown was killed by police officer Darren Wilson, much of the city’s income was derived from fines and court fees for minor traffic violations, essentially converting area police work from “public safety” officers to revenue collectors. These violations disproportionately fell on poorer individuals and minorities who may not have had the money to keep their hedges trimmed and their vehicles perfectly equipped. In effect, the tickets and citations amount to a regressive tax on members of our society least able to afford it.

In the wake of the Brown killing, Governor Jay Nixon signed a broad municipal court reform bill that capped court revenue and imposed new requirements in an attempt to end what the bill’s sponsor called predatory practices aimed at the poor. Good. The bill’s primary sponsor, Senator Eric Schmitt, said people have the right “not to be thrown in jail because you’re a couple of weeks … late on a fine for having a taillight out.” He called the current system in place in Ferguson, “taxation by citation.”

“Under this bill, cops will stop being revenue agents and go back to being cops,” Nixon said.

This is all good, too, and certainly the caps on revenue collection by police is a step in the right direction, but in the larger scheme of things, I’m not nearly as sanguine as Governor Nixon is about “cops going back to being ‘cops.’”

…in Southern states groups of designated white men would set out on patrols to round up runaway slaves during the antebellum period. The phrase for these men—paddy rollers, or patrollers — has come down to us as patrolmen or patrol officers and it’s not too much a stretch to suggest that in areas of the deep American South their function is much the same.

For one thing, the historical precedent that they might ‘go back’ toward isn’t exactly edifying, especially in Southern states where groups of designated white men would set out on patrols to round up runaway slaves during the antebellum period. The phrase for these men—paddy rollers, or patrollers — has come down to us as patrolmen or patrol officers and it’s not too much a stretch to suggest that in areas of the deep American South their function is much the same; that is, ensuring the safe keeping of property for the wealthy. In the North, police officers often functioned as barriers between the wealthy elites and the immigrant “hordes.” The history of industrialization and unionization in this country is rife with struggles between union supporters and police officers or private firm surrogates operating in their wake (such as the Pinkerton Detective Agency –fun fact, at the height of its existence, the Pinkertons had more agents than the standing army of the United States of America).

We like to think of police officers as neutral arbiters of the law, itself a neutral amalgam of well thought out rules for living, but whether rounding up runaway slaves or busting union organizers, the police have historically found themselves on the side of property owners. What this means in contemporary America is a focus on things like illegal drug use and sale, vehicle violations, public disturbance rules, and zoning laws that disproportionately hit the poorest members of our society first and hardest. If we run back through just the most noteworthy police shootings in the last year (topping 1,000 according to an unofficial list compiled by the New York Times here: http://www.nytimes.com/interactive/2015/04/08/us/fatal-police-shooting-accounts.html?_r=0), most of the precipitating causes involved minor infractions, expired inspection stickers, broken signal lights, or tail lights, unpaid fines or alimony. Public service, protecting humans from harm to themselves or to others might be a nice ancillary outcome of a police officer doing his job, but it’s not the main event.

In fact, the idea that police are here to protect us is not much more than a happy slogan. In its landmark decision DeShaney v. Winnebago County Department of Social Services,the U.S. Supreme Court declared that “the Constitution does not impose a duty on the state and local governments to protect the citizens from criminal harm.” The United States Supreme Court, in the 2005 case, Castle Rock v. Gonzales upheld that decision and extended it to include a state or municipality’s police force– codifying what many folks in poorer neighborhoods had long since suspected: neither the state nor the police have a constitutional duty to protect a person from harm.

Strictly speaking, the police are law enforcement officers, they are present to make sure the laws as passed by city, county, and state legislators are followed. Towards that end they write tickets, and citations for breaking the law, make arrest and testify in court about their actions. This narrow interpretation of their duties is often clarified in training on the so called ‘public duty’ doctrine that provides that a “governmental entity owes a duty to the public in general, not to any one individual.”

Police are also warned—constantly—to look out for themselves. According to ex-Officer, Seth Stanton, writing in the Atlantic Magazine, “police training starts in the academy, where the concept of officer safety is so heavily emphasized that it takes on almost religious significance.” Rookie officers are taught what is widely known as the “first rule of law enforcement”: An officer’s overriding goal every day is to go home at the end of their shift. One slogan that is bandied about squad rooms sums up the mind set: “Better to be judged by twelve than carried by six.”

Police are trained to fear the public they are nominally intended to serve. During their training “they are shown painfully vivid, heart-wrenching dash-cam footage of officers being beaten, disarmed, or gunned down after a moment of inattention or hesitation. They are told that the primary culprit isn’t the felon on the video, it is the officer’s lack of vigilance.” Writes Stanton, “in most police shootings, officers don’t shoot out of anger or frustration or hatred. They shoot because they are afraid. And they are afraid because they are constantly barraged with the message that that they should be afraid, that their survival depends on it.”

“In most police shootings, officers don’t shoot out of anger or frustration or hatred. They shoot because they are afraid. And they are afraid because they are constantly barraged with the message that that they should be afraid, that their survival depends on it.”

If you happen to peruse Police Magazine, you’ll find that the majority of the stories are about violence against police—and the weapons or tactics they can use to keep themselves safe. This month’s issue features a large photo of an Armalite AR-10 20-Inch Tactical Rifle that was initially designed for the US military. To drive home the point, Police magazine’s logo shows the O in policeman segregated by cross hairs, like a target.

Of course, in addition to the protect-thyself-first attitude, there’s also an underlying racial bias; probably because police officers fear blacks more than whites. In 2015, The Washington Post documented 990 fatal shootings by police, 93 of which involved people who were unarmed. “Black men accounted for about 40 percent of the unarmed people fatally shot by police and, when adjusted by population, were seven times as likely as unarmed white men to die from police gunfire.”

“The only thing that was significant in predicting whether someone shot and killed by police was unarmed was whether or not they were black,” said Justin Nix, a criminal justice researcher at the University of Louisville and one of the report’s authors. “This just bolsters our confidence that there is some sort of implicit bias going on,” Nix said. “Officers are perceiving a greater threat when encountered by unarmed black citizens.”

The only thing that was significant in predicting whether someone shot and killed by police was unarmed was whether or not they were black…

The report noted that officers may unconsciously develop biases over time. “In other words, the police — who are trained in the first place to be suspicious — become conditioned to view minorities with added suspicion,” according to the report.

So we have a fearful police force, over trained for self-protection with an underlying bias against minorities whose main job is not to protect citizens but to enforce legal codes that order society for the benefit of property owners (that will likely make a poor person’s life more difficult). Add to the brew, the over militarization of our police force (do we really need armored tanks on civilian streets?) and the fact that most police officer shootings are investigated by the police departments themselves and it shouldn’t be too difficult to understand how deeply dysfunctional the whole shebang is. I had one friend suggest that, given the stress our minority communities are under, it was surprising incidents like Dallas hadn’t happened more frequently.

But they haven’t– and perhaps that’s a testimony to what many police departments are coming to recognize—the necessity for retraining and community engagement. In fact, it’s a sad irony that the Dallas Police department has done an exceptional job in just this area. It’s obvious that Police Chief David Brown –whose own life is rife with personal tragedy—is dedicated to a community outreach program. Just hours before the killings began last Thursday night in Dallas, his officers took time to chat with protesters, even taking selfies with them.

“We saw police officers shaking hands and giving high fives and hugging people and being really in the moment with us,” demonstrator Sharay Santora said.

But then the shooting began, and, as if granted permission, police departments like those in Baton Rouge quickly reverted to form and began arresting activists on private property without cause or due process, much less warrants. In fact, they arrested the individual who provided video evidence of the Alton Sterling shooting. All of this should tell us that police forces in this country are as diverse as their leaders and the communities that they serve. Our own city, Richmond, Virginia, much like Dallas, has done excellent work in reaching out to the various communities here—including, surprisingly, the LGBT community. So it’s not hopeless, but no one solution will fit all the municipalities across the nation, and maybe one of the questions we should be asking is how well our expectations of police service match the reality? After all, as Chief Brown has noted, “Every societal failure, we put it off on the cops to solve”

But then the shooting began, and, as if granted permission, police departments like those in Baton Rouge quickly reverted to form and began arresting activists on private property without cause or due process, much less warrants. In fact, they arrested the individual who provided video evidence of the Alton Sterling shooting

Many of our poor neighborhoods have a nearly round the clock police presence—from squad cars anyhow. Police appear, write up infractions, and arrest vagrants, keep an eye on shifty characters, “gangbangers” and the like. They do what they are trained to do. But the result isn’t a working society. The result, as I suggested in the beginning of this essay, is a carceral state.

Right now, if you are an Afro-American male, your odds of being in jail at some point in your life are 1 in 3. I doubt this is because 1 in 3 Afro-American males are genetically predisposed to periodic episodes of violence and criminal behavior. More likely, it has to do with the incredible dearth of job prospects made infinitely worse by a rap sheet and applying while black.

Police officers can’t solve that problem. They aren’t social workers or teachers or medical service personnel, as Brown correctly points out—but the nature of the system we have put in place allows all the problems of our society to flow downward to the cop on the beat whose one job is to enforce the law, but who we mistakenly believe can somehow catch all the detritus of a dysfunctional system and keep it working.

In Michel Foucault’s famous work, Discipline and Punishment, the ruling metaphor is society as a vast prison; a kind of panoptic nightmare—a word derived from Jeremy Bentham’s famous panopticon which was a prison designed so that every cell is view-able from a raised central location, like a watchtower plunked into the middle of a cell block. The point was to understand and react to the behavior of the individuals in the surrounding cells so as to control them. But even at this rudimentary level we are failing, for it’s obvious we don’t understand the individuals caught in our system and we aren’t really controlling behavior, we’re merely holding them in our prison cells precisely because we don’t know what else to do with them.

You can’t fix a mental health problem with an AR-10, any more than you can fix homelessness with a traffic citation, or drug abuse with an armored vehicle, or unemployment with a prison cell.

Our criminal justice system is trying to repair something it simply isn’t equipped to mend. You can’t fix a mental health problem with an AR-10, any more than you can fix homelessness with a traffic citation, or drug abuse with an armored vehicle, or unemployment with a prison cell. Perhaps if we, as a society, decided that the carceral state was a bad idea; if we decided, instead, to fund jobs programs and provide secure housing for those in need, if, indeed, we provided drug treatment programs instead of felony convictions we might resolve many problems before they become statistics. We can tinker with police community outreach, provide stricter guidelines for engagement and the use of force and institute better ways of policing the police (oh, please let us have a uniform standard for conduct and an external agencies that review police shooting across the nation), but in the end the panacea we are looking for won’t come from a guy or gal on the beat– with or without a gun. They will come from providing adequate resources to all our public workers,  developing jobs programs and training for individuals from all walks of life, and from our own personal engagement with the community in which we live. Maybe it’s time to stop looking to the police to solve the problems of our deeply dysfunctional system. Rather, we should restructure the system so we don’t need the police—or not nearly as much. Maybe it’s time we all signed up.

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