08.01.2015
Methods of social control
In the age of ‘colour-blindness’, what accounts for the targeting of blacks by police? Jim Creegan critiques a recent influential book
Since my last article,1 the focus of the conflict sparked by police killings of unarmed black civilians has shifted away from Ferguson, Missouri, to New York City. The news from here is dominated less at the moment by street protests against police tactics than by the backlash against the protests being led by the Fraternal Order of Police, the largest of the unions that claim to speak for the city’s 35,000-member force, known as the NYPD.
On December 20, Ismaaiyl Brinsley, a 28-year-old black man, approached the passenger window of a parked police car in one of Brooklyn’s most dangerous neighbourhoods, and fired a 9-millimeter pistol point-blank at the heads of its two occupants. One of the slain policemen was Latino, the other a Chinese immigrant. The assassin then ran into a nearby underground station, where he shot and killed himself. Brinsley had earlier left a message on Instagram that read: “I’m putting wings on pigs today. They take one of ours, let’s take two of theirs.” The message was hashtagged ‘Michael Brown’ and ‘Eric Garner’, the two men whose shooting by police had sparked the recent wave of national protest. Earlier the same day, the killer had taken a bus to New York from Baltimore, where he had just shot his girlfriend in the abdomen, non-fatally as it turned out. Brinsley had a prior record of 19 arrests, one for firing upon a woman’s car in Atlanta. He had been under psychiatric care at one point in his life, and had attempted to hang himself a year ago. He had apparently never participated in any of the demonstrations against police violence.
But the fact that the murders were obviously the act of an apolitical and mentally disturbed individual did not prevent the police union from attempting to pin the blame on New York’s left-of-centre Democratic mayor, Bill de Blasio. According to Patrick Lynch, the head of the police union, “There is blood on many hands … those that incited violence on the streets under the guise of protest, that tried to tear down what New York police officers did every day. That blood on the hands starts on the steps of City Hall, in the office of the mayor.” The union chief was angry because de Blasio had appeared months earlier at a press conference on police policy flanked by the reverend Al Sharpton, a Democratic Party loyalist, who is also a self-appointed black spokesman and a critic of the NYPD. Lynch was chagrined in addition by the fact that the mayor had permitted those demonstrating against police abuse a wider latitude on the streets than marchers were allowed under the previous city administration. But what probably rankled most was de Blasio’s remark, shortly after the killing of Eric Garner, that he, like so many black and Latino parents, had had to warn his biracial, teenaged son (the mayor’s wife is black) to be wary of the police in public.
When, on the night of the shootings, de Blasio appeared at the hospital where the bodies of the two slain officers lay, the cops on duty turned their backs on him. Some showed him their backs again when he spoke at the funerals of the two murdered lawmen. Since then, police-issued summonses for traffic violations, as well as minor criminal offences, have decreased by 90% compared to January of last year, and arrests for major felonies are 40% lower. Despite union denials, the police are obviously conducting an organised slowdown.
Perhaps the police are hoping by their inaction to bring about an uptick in the crime rate that would galvanise public sentiment in their favour, as a police protest had over two decades before. In 1992, 10,000 off-duty cops staged a virtual riot on the steps of City Hall against the black Democratic mayor, David Dinkins, perceived as anti-police and indulgent toward criminals. Rudi Giuliani, a public prosecutor with a tough-guy reputation, was there to urge on the beer-swilling law-and-order mob. He was swept into office the following year on the crest of a crime rate that had reached all-time highs, and a growing perception that things were spinning out of control in a city that is not only the country’s largest, but, with London, a principal hub of international finance capital. Giuliani’s election inaugurated an uninterrupted 20-year Republican municipal reign, during which more cops were put on the street, armed with the enhanced powers that led to the sense of impunity which they feel is under threat today.
But the cops may be overplaying their hand. The New York of today is one of the safest cities in the country, with murders and violent crimes less frequent now than at any time since the early 60s. Much of Manhattan, even parts of its famous Harlem ghetto, as well as many neighbourhoods in the outer boroughs, have since morphed into stylish, high-rent districts, whose boutique-lined streets are friendly walkways for the yuppies and tourists who form the most visible part of the daytime urban population. Affluent New Yorkers are much less nervous about crime than in the 80s and 90s, and thus less likely to rally behind a law-and-order demagogue.
Yet the memory of the older, grimy New York, with its crumbling infrastructure and undercurrents of menace, has not entirely disappeared. Many are subliminally aware that the drug dealers, homeless persons and aggressive beggars who intruded so rudely upon the horizons of respectable residents 25 years ago have not vanished because they have found good jobs or decent housing. They still subsist somewhere in the margins - out of sight, but not quite out of mind. Even de Blasio and his supporters cannot escape the suspicion that the city’s transformation is due at least in part to the police-prison regime pioneered on both local and national levels by many who now denounce him. For this reason he is reluctant to tamper with the regime in any but superficial ways. He fears a return of the repressed; he fears that, with any weakening of the police apparatus, those now rendered invisible could once more begin to make an unsettling appearance on the streets. And anyone deemed responsible for opening the floodgates could all too easily meet the fate of de Blasio’s last liberal predecessor.
Police-prison regime
No one maps the contours of the current police-prison regime better than the black law professor, Michelle Alexander, in her influential book, The new Jim Crow: mass incarceration in the age of color blindness. We shall therefore analyse that regime by summarising portions of the book’s contents, as well as by criticising its explanatory framework.
Alexanderargues that the contemporary American penal system has a lot less to do with apprehending and punishing criminals than exerting control over broad swathes of the minority population, with the so-called war on drugs as its principal instrument. A glance at some statistics bears her out. Over the past 30 years, the prison population has soared from about 300,000 to 2.3 million. The US now has the highest incarceration rate in the world, 10 times larger on average than that of other advanced western countries. Less than half the inmates of federal and state prisons, taken together, are serving time for violent crimes. Drug offences constitute the largest single crime of those now locked away. Between 1990 and 2011, violent crime per 100,000 of the population declined from over 700 to about 400, yet incarceration rates per 100,000 climbed to over 700 from about 450 during the same period. Although people of colour, mainly blacks and Latinos, constitute roughly 30% of the population, they make up more than 60% of the prison population. One in three black men can expect to acquire a criminal record in the course of his lifetime.
The road to prison begins on the streets of minority neighbourhoods. Starting in the early 90s, New York City became a pioneer in so-called zero-tolerance, or broken-windows, policing methods. This school of criminology argues that the enforcement of laws for petty street offences - like public drinking, urination and small-time drug dealing - is the key to preventing bigger crimes (just as fixing a single broken window is the first step in preventing the deterioration of an entire building or city block). The maintenance of an orderly public atmosphere will supposedly discourage potential criminals. Needless to say, the weight of such measures falls disproportionately upon homeless people and ghetto youth, whose cramped living quarters, lack of public recreational facilities and lack of spending money for cafes, pubs, etc make them far more likely to be passing their time al fresco.
And even if ghetto youth are not caught violating any laws they are likely to fall foul of a major concomitant of ‘zero tolerance’: New York’s infamous ‘stop and frisk’ procedures, imitated in many other cities. Under this policy, anyone can be thrown against a wall or made to lie spreadeagled and be searched on the mere suspicion that he has committed, or is likely to commit, a crime. Refusal to comply immediately and without hesitation can lead to arrest. In a number of notorious cases - Patrick Dorismund, Amadou Diallo, Sean Bell - and no doubt in many that never made the headlines, a cross word, a misunderstood gesture or an attempt to run away have been answered with bullets. But even instant compliance may not be enough. Possession of small amounts of marijuana is not a punishable offence under New York law, as long as it is not on public view. But the subject of a police search, having been ordered to empty pockets that happen to contain a joint, must place it on view, hence making himself liable to arrest. (Aggressive stop-and-frisk procedures were held by a federal judge to be unconstitutional; de Blasio has dropped the appeal to this ruling filed by his Republican predecessor, and promised to curtail the practice.)
Once charged, the prisoner finds himself facing a battery of draconian criminal penalties that were put into place, as reform attempts were increasingly abandoned from the 1970s to the 1990s and the War on Poverty was replaced by the War on Drugs. Whereas the maximum federal sentence for possession of drugs of any kind had been a year in prison, laws passed by Congress during the presidencies of Reagan and Bush the First introduced long mandatory sentences, even for first-time offenders. The possession of crack cocaine, used mostly by minorities, was penalised much more severely than possession of the drug in its powdered form, more commonly used by whites. But the principal toughening of the criminal code occurred not under a Republican administration, but under the Democratic presidency of Bill Clinton, whose nomination by his party represented the triumph of the ‘New Democrats’: pro-business, social programme-averse and ‘tough on crime’.
Clinton pushed for and signed into law the Crime Bill of 1994, the biggest such piece of legislation in US history. The bill greatly expanded the use of the death penalty, and introduced the ‘three-strikes-and-you’re out’ principle into federal law, making life sentences mandatory for the commission of certain repeated violent crimes and drug offences (three strikes refers to the number of times a batter in baseball can swing at the ball before being out). All discretion on the part of judges in such cases was removed. And the same president who abolished aid to families with dependent children allocated billions for the construction of prisons and the hiring of 100,000 new policemen. The bill set up boot camps for juvenile offenders and eliminated government grants for inmate education.
Two years later a second piece of legislation, the Anti-terrorism and Effective Death Penalty Act, made it well-nigh impossible to seek relief from state-imposed death sentences in federal courts. Similar ‘three-strikes’ laws were passed in many states. Particularly notorious was a California statute mandating a life sentence even if the ‘three strikes’ consisted of misdemeanours like possession of small amounts of drugs. The US Supreme Court has consistently rejected almost every challenge to these inflexible and cruel laws.
Michelle Alexander cites cases in which mandatory sentencing was denounced even by Reagan judicial appointees. One such judge, William W Schwarzer, was “not known as a light sentencer”. She writes:
Thus it was that everyone in his San Francisco courtroom watched in stunned silence as Schwarzer, known for his stoic demeanour, choked with tears as he anguished over sentencing Richard Anderson, a first offender Oakland longshoreman, to 10 years in prison without parole for what appeared to be a minor mistake in judgment in having given a ride to a drug dealer for a meeting with an undercover agent.2
Long mandatory sentences are not the only consequence of such laws. They also give prosecutors increased plea-bargaining leverage, allowing them to pressure prisoners to forego their right to a trial, even if innocent, and plead guilty to lesser offences under threat of being convicted of greater ones, carrying long compulsory prison terms.
Nor does the inmate stop paying for his/her alleged crimes after leaving prison. Ex-convicts face discrimination in hiring, are often deemed ineligible for low-cost federal housing and are effectively barred from voting in many states. They must wear the felon’s brand for the rest of their lives. The penal system seems almost designed to encourage recidivism. Having once entered under the control of the courts and the prisons in their youth, many black and brown people can never escape.
Contradictions
In The new Jim Crow, Michelle Alexander rightly traces the origins of the new penal regime to the criminalisation of black people that became the stock in trade of politicians and media hacks during the backlash against the civil rights movement that began in the 1970s. It is, however, when it comes to explaining the institutional basis for the regime that she runs into contradictions.
As the title of her book makes clear, the Ohio State law professor and former Supreme Court clerk has set herself a double task: on the one hand, she argues that the web of enforcement practices and laws that entangles minorities is a latter-day incarnation of the racial caste system that has always existed in America - a new form of the infamous southern Jim Crow apparatus of repressive laws and lynch-mob terror that kept black people at the bottom of the heap in the former Confederacy for a century after the civil war. Only instead of branding black people as inferior by the colour of their skin, the current system of mass incarceration performs the same function of stigmatising and separating them from the rest of society with the seemingly race-neutral label of ‘criminal’ and ‘felon’. On the other hand, she attempts to explain how this system has managed to reassert itself despite the fact that its individual agents may be free of any strong animus toward blacks: ie, despite the fact that it is colour-blind.
In myview, Alexander never quite succeeds in accomplishing this dual task. She does recognise the efficacy for elites of diverting the potential anger of the white working and lower middle classes toward the existing order into resentment against minorities. But such resentment must be there in the first place in order to be stoked. What is its basis? And is it essential to the functioning of the new Jim Crow?
Alexander’s answers to these questions are not to be found on the surface, but rather stem from assumptions lodged deeply in the interstices of her argument. Why, for instance, are minorities disproportionately victimised by anti-drug laws that are supposed to be applied even-handedly? Alexander explains:
… The first stage is the roundup. Vast numbers of people are swept into the criminal justice system by the police, who conduct drug operations primarily in poor communities of colour ... they are rewarded … for rounding up as many people as possible, and they operate unconstrained by constitutional rules of procedure that once were considered inviolate … Because there is no meaningful check on the exercise of police discretion, racial biases are granted free rein [emphasis added]. In fact, police are allowed to rely on race as a factor in selecting whom to stop and search (even though people of color are no more likely to be guilty of drug crimes than whites) - effectively guaranteeing that those who are swept into the system are primarily black and brown (p185).
So it would seem that higher authorities, in their zeal to prosecute the war on drugs, are willing to give wide discretion to police, who are driven by racial animus, and that it is, in fact, this animus that is at bottom responsible for the grossly unequal enforcement of laws. This seems to contradict her earlier claim that the new Jim Crow, unlike the old, has the effect of victimising blacks even in the absence of active racial bias.
Yet, in another passage, the author seems to be making the opposite case: that the old and new Jim Crow are alike in that neither depends upon race hatred. She suggests that both are colour-blind because they are based upon what she calls racial indifference:
All racial caste systems, not just mass incarceration, have been supported by racial indifference. As noted earlier, many whites during the Jim Crow era believed that African Americans were intellectually and morally inferior. They meant blacks no harm, but believed that segregation was a sensible system for managing a society comprised of fundamentally different and unequal people ....
The notion that racial caste systems are necessarily predicated on a desire to harm other racial groups, and that racial hostility is the essence of racism, is fundamentally misguided (p203).
The above reasoning is absurd on its face. Alexander may just as well argue that the Nazis hated Jews because they held in all good conscience that the latter were moneylenders by nature, and were responsible for stabbing Germany in the back during World War I. Abstract racist beliefs have a way of turning very quickly into murderous hatred, once races deemed inferior give any indication of their humanity, which, being human, they unavoidably do.
Alexander is at her best when describing the current system of unequal justice, and pointing out its glaring inequities. Her attempts to explain it, however, are weak and inconsistent. She essentially views American racism as a static and ahistorical phenomenon. It is for her fundamentally a question of white attitudes. Despite half-hearted attempts to account for it sociologically, the ‘new Jim Crow’ is seen as the latest permutation of American society’s unchanging - and ultimately mysterious - determination to degrade and subjugate black people. The word ‘bias’ occurs throughout the book; the word ‘capitalism’ never. But, as we shall now see, her central historical analogy is greatly overdrawn.
Old v new
The old Jim Crow was supported by the racial ideology that grew up to rationalise slavery. One dilemma for the southern ruling class was that slavery was expanding at the very time when big slaveholders were among those proclaiming human equality to the world in their struggle for the independence of the American colonies. The same hand - that of Thomas Jefferson - that wrote the Declaration of Independence, with its ringing assertion that “all men are created equal”, also penned advertisements for runaway slaves.
Another dilemma was that the majority of southern whites were not slaveholders, but poor and middling farmers. Slavery could only be reconciled with doctrines of equality by portraying African-descended people as an inferior subspecies; and poor southerners could only be reconciled to the prevailing class system, and prevented from making common cause with slaves, by the belief that they, along with their social betters, belonged to an inherently superior race. Though born in the south, notions of white racial solidarity did not end at the Mason-Dixon line separating north from south, and are far from extinct in the country today. But the position of black people has greatly evolved, especially during the past half century.
As James Forman, a critic of Alexander and other writers of similar views, points out, classical white racism demanded a strict line of demarcation:
Just as Jim Crow treated similarly situated whites and blacks differently, it treated differently situated blacks similarly. An essential quality of Jim Crow was its uniform and demeaning treatment of all blacks. Jim Crow was designed to ensure the separation, disenfranchisement, and political and economic subordination of all black Americans.3
In addition to being freed from formal segregation and enfranchised in the last 50 years, the black population has also experienced a growing class differentiation. Many have benefited from government and university affirmative-action policies, which, while constantly challenged and curtailed, have not been completely abolished. Forman cites statistics to demonstrate the dramatic rise of the black middle class:
… in 1967 only 2% of black households earned more than $100,000; today, 10% of black families earn that amount. Going down the income scale from upper middle class to middle class, we also see robust growth. Since 1967, the percentage of black households earning more than $75,000 a year has more than tripled, from 5% to 18% today. The percentage earning $50,000 or more has doubled - from 17% in 1967 to 33% today … The educational attainment numbers reveal a similar pattern. In 1967, 4% of the black population over the age of 25 had a four-year college degree; today 20% do.4
It is not the newly arisen black middle class - one member of which was elected president - that is the target of the current regime of police intimidation and mass incarceration, although its members are sometimes caught in the dragnet. It is rather directed toward those whose class status has not changed, or worsened, and who, because of this country’s long history of racial oppression, find themselves represented disproportionately among low-wage workers and the unemployed. Society has relegated this segment of the population to a semi-lumpenised ghetto existence which is, in fact, characterised, if not by greater drug use, certainly by higher rates of both petty and violent crime than found in most white communities.
For their part, the white middle and working classes have no doubt lost more to the gigantic financial swindles of recent years than to muggings and burglaries. But neither are they likely to run into a CEO or hedge fund manager on a dimly lit street. White-collar criminals pose no immediate threat to their physical safety or possessions. Their lingering fear is one basis for wide support for a strong police presence not only among white racists, but - though acknowledged somewhat less candidly - among white liberals as well, and, to a lesser but significant extent, among middle class and older blacks and Latinos.
However, the police-prison regime does not allow itself to become overly preoccupied with questions of individual guilt or innocence among people who do not count in society’s eyes. It rather works by the law of averages, harassing and imprisoning the guilty and innocent alike among a young male black and brown population deemed most likely to violate public order and commit street-level crimes. This is the basis of racial profiling, and of the racial stigma that all minority members continue to bear, regardless of who they are as individuals, merely by virtue of their skin colour and place of residence. The current police-prison regime is not the newest avatar of eternal race hatred. It is indeed buttressed by the traditional racism of many of its enforcers, but it is chiefly an expedient for social control of populations, for which the present capitalist economy has no place.
Alexander lists certain concrete measures for the amelioration of minority conditions: education, job training, public transportation and relocation assistance to help people move closer to suburban jobs. It is perhaps symptomatic of our times that she omits the one thing that could, more than any other, lift millions from poverty: the creation of decently paid government jobs. Alexander would probably welcome such an initiative, but it is so far removed from the present-day political thinking that it seems not even to have entered her mind.
There are many pressing social needs that government jobs could fill - the repair of decayed infrastructure, the creation of safe energy sources, the building of high-speed railway lines - and most of them need not be highly skilled. But, then again, who would want to work at Wal-Mart or McDonald’s for $8 an hour if such jobs became available. In addition to requiring additional tax revenue from the rich, any serious public works programme would play havoc with the entire low-wage service economy now in place. The Marxisant economist, Joan Robinson, once remarked that it would be hard to eliminate the ill effects of capitalism without abolishing capitalism itself.
But that is also the point of what Trotsky called transitional demands (among which public works are included) - demands that answer urgent mass needs, while at the same time pointing beyond capitalism. And the need for living-wage jobs has certainly become more urgent since 2008, as the present campaign of McDonalds and other fast-food workers for a $15-an-hour minimum wage attests.
Adding weight to the conclusion that hers is a discourse of attitudes rather than structures, Michelle Alexander ends The new Jim Crow with a pleafor the only thing she believes stands any chance of abolishing the punitive regime she so vividly depicts: greater compassion on the part of white people. We Marxists, on the other hand, are aware that few social transformations have ever occurred as a result of compassion. They are rather the products of social struggle. The struggle against racism will not be furthered by moral preaching, but by seeking points of common interest between white and minority components of the working class.
Perhaps the tens of thousands of mostly young white people that joined the recent protests over the killing of black men were partly animated by an abstract sense of fairness and social justice. Yet one cannot but suspect that the prospect of leaving university - if they were fortunate enough to attend - under mountains of debt to compete more fiercely for ever-fewer jobs at shrinking pay had something to do with their presence.
As the post-2008 realities sink in, the gap between racial realities narrows and the possibilities for inter-racial struggle could possibly become more than a noble wish.
Notes
1. ‘The cauldron boils over’ Weekly Worker December 18.
2. M Alexander The new Jim Crow: mass incarceration in the age of color blindness New York2010, p93.
3. J Forman Racial critiques of mass incarceration: beyond the new Jim Crow New Haven 2012, p131.