Using the Force:
How Police Impose Order
The power to search is among the most wide-ranging of police powers. The Fourth Amendment to the US Constitution places limits on what, who, where, when and how police can search. Chief among these is the requirement that before engaging in a search police must secure a warrant from a court, based on probable cause of criminal activity. But the reasonable suspicion, plain view, automobile, and hot pursuit exceptions, among others, extend unaccountable discretion to police regarding searches and thus make the Fourth Amendment all but irrelevant. In practice and in law the police have carte blanche to search your home or your car, your pockets or your backpack, your body cavities or your bank account. Indeed the search is a police power always in array. K-9s at the train station. Body scanners at the airport. Metal detectors at the high school. Drug tests at the workplace. In most cases, searches are conducted based on consent, another exception to the Fourth Amendment limit on unreasonable search and seizure. You can of course refuse to consent to a search, but then you can’t drive your car, go to school, collect a wage, or board a plane. Other exceptions to the limits placed on the power of police to search represent after-the-fact justifications of otherwise illegal police searches. Police simply assert powers the law denies them and then launch a “coordinated effort … to legitimate their actions by persuading judges, politicians and the public that what they were doing was necessary to curb crime.”1
Didier Fassin’s ethnography of urban policing in France demonstrates the ubiquity of the search as “the usual means [police enter] into contact with their public, whether or not a crime has been committed.”2 As in the US, there are legal limits to the power of French police to search suspects. “In theory, we have to follow strict rules,” an officer told Fassin, “but in practice, the Penal Procedure Code lets us do what we want.”3 One officer told Fassin police could “do what we want.” He wasn’t exaggerating: Police quite literally can search whatever and whomever and whenever they want because the limits that law places are not limits on searching per se but rather concern the admissibility of any evidence collected during a search. Police can break down your door, ransack your home, rough up your family, and seize your property. The only limit they might encounter is an after-the-fact consideration of the admissibility of the evidence police seized from you.
A search is a tool of intimidation. It is designed to remind a population that they are always at the mercy of police. And this is precisely why constant street searching of poor Black and Latino youth is at the heart of broken windows policing in the United States. Broken windows policing is the idea that police should use the power of search not to fight crime but to impose order. A judge may throw out any evidence collected, but she cannot go back in time and stop the search from ever happening in the first place. And this is the point of the stop and frisk search. It is not about crime-fighting or collecting evidence or investigating wrongdoing; it is about information. Search is surveillance and intelligence gathering. It is how the state develops knowledge about a population in order to put that information to work for all sorts of projects that often include those populations’ criminalization (see red squad). And search is a tool of intimidation. It is designed to remind a population that “they are at the mercy of police discretion.”4 The hassle and indignity of the stop and frisk search is designed to impose in its subjects what Fassin calls the “habit of humiliation.” When Fassin saw French middle class kids searched—a rare event—he noted how vocal and upset it made them. But when police searched poor, usually Muslim kids in the working-class banlieues that surround Paris, he saw a different reaction. The police search was part of everyday life. The young men knew the drill so they kept their heads down, spoke only when spoken to, and ignored the “abusive or racist comments and aggressive or humiliating treatment.”5 What they were to take away from that unequal encounter was fear, and that is the point.
Notes:
1 Neocleous, Mark, The Fabrication of Social Order: A Critical Theory of Police Power, Pluto, 2000, 97.
2 Fassin, Didier, Enforcing Order: An Ethnography of Urban Policing, Polity, 2013, 87.
3 Ibid., 91.
4 Ibid., 7.
5 Ibid., 87.
It is difficult to see patrolling as a concept. It seems merely to describe the most common police activity. Patrol officers drive patrol cars in order to patrol streets and neighborhoods. As a police practice, it is usually presented as something that merely takes place—a standard activity undertaken in a given territory based on a set of preexisting “facts on the ground.” There is crime, so police flood the area with patrol officers. Patrolling is what police do. It is self-evident and requires no explanation, and it magically elevates the level of public order wherever it is practiced.
But none of this is true. In the most famous study of police patrols, the Kansas City Patrol Experiment, researchers increased patrols in one area, eliminated patrols in another, and kept patrols at already-existing levels in a third. They found no difference in reported crime rates as a result of different patrol patterns.1 If this is true, why do police hold fast to the patrol? Perhaps it is because patrolling feeds the predatory hunger of police. Police are always out on the hunt and in pursuit, preying on neighborhoods and people, hunting dirtbags and checking for things out of place.
Despite what police may say, the patrol is not just a word that describes police activity, but a concept that explains the making of police power. The patrol asks us to consider the police as a set of activities, but we should instead understand the patrol as the way police know and name the world. Consider the origins of the word. It comes to us from the German Patrolle, or the French patrouille. To patrol, or patrouiller, means to tramp through the mud or, literally translated, to paddle in the dirty water. And so the police van is called the “paddy” wagon. The slave patrol and early police were called “paddy rollers.” The patrol, in other words, is not just a police tactic; it works to posit the disorder—the “muddy water” of a crime-infested neighborhood—through which policing justifies itself.
The concept of patrolling advances an idea of space as a set of fixed boundaries within which we find disorder in the absence of police. But what police call disorder does not exist independent of police knowledge of it. Patrol is as much about producing the unruly spaces that need police as it is about imposing order. So what then do we make of the patrol? The patrol should not be understood as a police strategy or tactic that merely responds to a set of seemingly independent, objective facts, such as crime. Rather it is through the concept of the patrol that the idea of disorder is given spatial form. It is through the patrol that certain neighborhoods come to be known to police as disorderly and in need of policing.
To say that the patrol gives spatial form to police power is to say that police produce space. What we think of as space is usually depicted as nothing more than a stage on which social life takes place. It is immutable and can be known absolutely. But space is not an empty vessel that comes to us fully formed; space is always political.2 And yet the most spatial of all police practices, the patrol, is depicted as apolitical. It is merely an effective tactic to establish order. This is how James Q. Wilson and George Kelling describe what the patrol officer does: “Drunks and addicts could sit on the stoops, but could not lie down. People could drink on side streets, but not at the main intersection. Bottles had to be in paper bags. Talking to, bothering, or begging from people waiting at the bus stop was strictly forbidden. If a dispute erupted between a businessman and a customer, the businessman was assumed to be right, especially if the customer was a stranger. If a stranger loitered, [the cop] would ask him if he had any means of support and what his business was; if he gave unsatisfactory answers, he was sent on his way.”3 Patrolling, in other words, is a story about private property. How it is made, how it is defended, and how it comes to be so taken for granted that no discussion of its politics is even necessary.
The concept of the police patrol is a politics of space disguised as an apolitical, compulsory activity that must happen without question. The police patrol gives us the world we live in. This is among the reasons it is so difficult to talk about police. The concept of the patrol evacuates political content from any discussion of police and replaces it with a story of police as indispensable.
Notes:
1 Kelling, George L., et al., “The Kansas City Preventive Patrol Experiment,” Police Foundation, 1974.
2 Lefebvre, Henri, The Production of Space, Oxford, 1991.
3 Wilson, James Q. and George L. Kelling, “Broken Windows,” Critical Issues in Policing: Contemporary Readings (1982), 395–407.
The beat generally refers to a limited, geographical area in which a cop is assigned to patrol, either by horse, bike, cruiser, or on foot. To be on duty is to be on the beat. The image of the beat cop or the neighborhood cop is among the most powerful organizing and legitimizing images of policing. The fantasy that there was once a friendly neighborhood cop who knew everyone’s name and helped keep the peace while on the beat is the fairytale ideal against which policing in any present moment is always compared. The beat cop is the mythical hero of order who once worked in the idyllic natural condition of policing to which reformers always demand a return. This Disneyland discourse of policing emerged alongside broken windows and community policing as a powerful narrative in the 1980s and 1990s.
The fable of the beat cop places its moral lesson in a geographic logic of racial capitalism. It depicts the truths of capitalism—racism, poverty, and police violence—as unrelated to capitalism and instead a problem located in the ghetto, and tied to the problem of a criminality usually related to Blackness, Brownness, and Indigeneity. It depicts the solution to the problems of the capitalist city as hidden somewhere in the noble, selfless past of the police. And so it must be the cop, who must emerge from his cruiser, who must swing the nightstick anew, who must return to the beat, who is our great white hope, who will restore order. Consider how police reformers tell the fairytale:
In the 1970s, American cities felt the consequences of the flight of white families (and others who could afford it) to the suburbs. This flight was in part a reaction to mounting center-city crime … Downtowns of many American cities became visibly populated by “street people” of ambiguous origin and vaguely threatening demeanor. “Urban campers” appeared with their cardboard tents in parks and underpasses all over the country. Many street people were apparently mentally disturbed. Where they came from and their actual numbers were subjects of considerable controversy. Some turned to aggressive panhandling while others scrounged through dumpsters for foot. They were attracted by the public facilities and relative safety of downtowns or commercial strips and transportation hubs, and gravitated toward areas where food, shelter and social services were available. This upset area residents and merchants who depended on attracting shopper, and they demanded that something be done about it. Police inevitably were on the front line in dealing with them.1
This is a story of the city told in the passive voice. No one is to blame but the poor who remain. And look! There is the savior, the beat cop. And consider what the story says about what that beat cop is supposed to already know about the city, about crime, and about the job of policing. First, the cop is to understand that the problem of urban crime finds its origins in white flight. In other words, when white people left, crime arrived. Or better yet, the presence of crime is the absence of white people. Next, the homeless and desperately poor are to be understood as of “ambiguous origin,” which is a way of saying that the poor always come from somewhere else, and this means of course that they never belong where they are. They exist independent of the forces and conditions that created the category “homeless.” And lastly, all of this threatens commerce, which is what makes it a police problem.
And the solution is the beat. Walking a beat “enables [the cop] to learn about the area and its problems and to become familiar with local hot spots and alternating cycles of troublesome and trouble-free times of day. The reconfiguration also allows them to focus their attention on area residents and issues that concern them specifically.”2 So the beat allows the cop to “learn about the area,” but the parable of the beat already has a plot and a cast of characters. There are the “urban campers,” many of whom are “mentally disturbed.” They are an enemy presence. They have infiltrated a city in which they don’t belong. It is the beat cop who will wage a war “on the front line” to remove them. And there are the shopkeepers, desperate for police protection in a city suddenly without enough white people. And there are the Black and Brown people who live in the former white neighborhoods, which are now called “hot spots,” which must be patrolled by the beat cop.
And the point of all this, the point of the beat, is to “take back the streets.” The beat seeks to restore order to the city by removing the homeless, by policing the poor, and by targeting Black and Brown people. Without resistance, the beat will make the city white again. Just you wait and see.
Notes:
1 Skogan, Wesley G., et al., On the Beat: Police and Community Problem Solving, Westview Press, 1999, 10–11.
2 Ibid., 58.
The special ability police claim in solving crime through investigation is celebrated as among their most important activities. The investigative power of the police is where the criminal justice system begins. Investigation conjures images of grizzled detectives stalking criminal perps and suspects, chasing down leads and sniffing out clues; or scientific crime scene investigators combing through crime scenes, collecting DNA samples and piecing together evidence. But this is merely a Hollywood fantasy that police are happy to cultivate. Investigation rarely leads to arrest, much less conviction. Most arrests require no investigation whatsoever. Cops don’t solve crime, informants do. A suspect, if one is arrested, is most often arrested on the scene of a crime. Frequently a victim or an eyewitness identifies a suspect. This accounts for around 80 percent of all arrests. This leaves 20 percent of “initially unsolved cases” in which, according to a Rand corporation study, investigators play no predominant role.1 Most “unsolved” cases were eventually “solved,” if at all, by passersby or by a witness. In other words, cops “solve” crime randomly, not systematically, and usually during a traffic stop, at a checkpoint, or during a stop and frisk.
Forget about crime scene investigation. Special units scour crime scenes for fingerprints and hair samples, conduct ballistics analyses of weapons, and take photographs of everyone and everything. The proliferation of science and technology-driven policing, however, has little effect. This is partly because forensic science is not science. The National Academy of Sciences concluded that the basic procedures behind forensic science are not meaningfully scientific.2 Fingerprints are not unique. Bite marks do not match an individual’s dental characteristics in any scientifically reliable way. Ballistics analyses of weapons cannot systematically match bullets fired from specific weapons. Hair samples do not place an individual at a crime scene. According to the Innocence Project, 60 percent of people exonerated of crimes by DNA evidence were originally convicted of those crimes based on testimony from, and evidence collected by, police forensic scientists.3 And even when DNA evidence is collected, it does not follow that police will conduct an investigation. Few police departments devote sufficient resources to manage DNA evidence. In New Mexico, more than 5,000 sexual assault evidence kits, some dating back to the 1980s, languish in police department evidence rooms, untested and unused in criminal investigation.4 Nearly 7,000 rape kits sit in evidence rooms in Houston, 12,000 in Memphis, 11,000 in Detroit, and 17,000 in Manhattan.5
The fantasy of the CSI unit and the clever detective hot on the trail serves an important function. It extends an authority and gravitas to an otherwise futile and insignificant enterprise. Police rely on this fantasy and trade on its authority whenever they put an innocent person in jail based on a “scientific” investigation.
Notes:
1 Greenwood, Peter, “The Rand Criminal Investigation Study: Its Findings and Impacts to Date,” Rand Corporation, July, 1979.
2 Edwards, H. and C. Gotsonis, “Strengthening Forensic Science in the United States: A Path Forward,” Statement before the United State Senate Committee on the Judiciary, 2009.
3 Jones, Jonathan, “Forensic Tools: What’s Reliable and What’s Not-So-Scientific,” Frontline, April 17, 2012.
4 Gallagher, Mike, “NM’s Stunning ‘Rape Kit’ Backlog,” Albuquerque Journal, November 15, 2015.
5 Graham, David, “Rapists Go Free While Rape Kits Go Untested,” Atlantic, February 24, 2015.
Discretion is the legal authority extended to police to decide what should be done in a particular situation. It refers to the police powers in general: where to patrol, when to use force, who to arrest, who to kill or let live. Considered this way, discretion is just another word for enforcement, one that recognizes the limits of law’s reach. After all, what does it matter if law declares an act unlawful, unless there are police standing by and ready to enforce it? Discretion proposes a view of police as the specialized means to a predefined legal end.
The concept of discretion, however, does more than merely depict police as a means to an end. The concept includes an implicit assumption that the enforcement of law requires special knowledge, skills, and experience. You may know the law, but who knows how to enforce it? Police, we’re told. That’s who. Thus discretion is two things at once. It is a legal concept that limits the police powers to only those actions that enforce a predetermined law. But it also extends to police the unlimited choice of how to do this. This is why there is little a cop can do that the law won’t find lawful as long as a cop does it while pursuing the ends of good order. And since only police possess the specialized skill and knowledge necessary to defend order, only police can define discretion. Indeed, courts have consistently refused to define police discretion, since to define discretion would be to limit the power of police.1 Moreover, part of this reasoning is premised on the idea that there cannot be predetermined, universal codes for handling “police situations,” and therefore police are granted nearly unlimited discretion to best handle an incident.
Discretion, then, is the key to understanding the police power as an executive power, and cops as “petty sovereigns” or “everyday executives.” Contrary to liberal thought that sees police in liberal democracies as accountable to law, police power is never meant to be restricted by law, and it is the category of discretion that makes this apparent. Rather, police power is the routine application of what John Locke called the prerogative, or the executive power of the sovereign to be free from legal constraints. This is based on the sovereign claim as the sole authority regarding what constitutes an emergency and threat to “the public good.” Cops have nearly unlimited discretionary power to decide who or what is a threat or emergency and what is the most appropriate or necessary method of response. Even legal concepts such as probable cause and reasonable suspicion, which claim to limit discretion, actually license police intervention. The folk wisdom that police can always find a reason to stop you rings true, especially for those most subjected to the police power.
It is because of discretion that a cop can shoot and kill a twelve-year-old boy on a playground while the boy plays with a toy gun and the law calls that “reasonable under the circumstances.” It is because of discretion that a grand jury will refuse to indict a cop who chokes a man to death on the street because the man was selling cigarettes. Discretion does not limit police violence, it justifies police violence as always violence for legal ends. This is true because, as Walter Benjamin explains, discretion comes “with the simultaneous authority to decide these ends itself within wide limits.”2 And as Benjamin makes clear, “The assertion that the ends of police violence are always identical or even connected to those of general law is entirely untrue.”3 In the authority to choose how to enforce security is an authority to make law itself.
Discretion is often depicted as something cops use or apply, but it is more accurate to depict discretion as a concept that police construct and defend. The concept of discretion serves an important political purpose. It limits any consideration of police to individual cops who enforce the law. There is no institution; there are only cops in uniform. Discretion brings the cop into focus while leaving police obscured. This makes any problems with police always only problems of individuals. There may be bad apples, there may be instances of police brutality, but this has nothing to do with police, we’re told. This is why discretion has to be understood as a logic of the state, and not merely something individual cops use. Discretion reserves for police an enormous and totalizing authority. Consider the implication. Law establishes what is unlawful in the present and gives to police the authority to choose how to enforce the law in the future. Discretion is law’s justification today of police violence tomorrow.
Notes:
1 Dubber, Markus, The Police Power: Patriarchy and the Foundations of American Government, Columbia University Press, 2005.
2 Benjamin, Walter, “Critique of Violence,” in Reflections: Essays, Aphorisms, Autobiographical Writings, 1978, 286.
3 Ibid., 287.
Predictive policing refers to the use of computer algorithms based on multivariate geospatial data to model or predict criminal activity. As a theory it fits within what is known as “intelligence-led policing,” a mode of policing based on the analysis of quantitative geospatial data, such as CompStat.
Advocates of predictive policing claim that it is scientific, and therefore an objective and unbiased way to fight crime. Its origins are usually found in the 2008 efforts of former Boston, New York and Los Angeles police chief William Bratton who, along with a number of federal agencies, inaugurated a series of symposia on the use of predictive analytics in policing. But efforts to use quantitative geospatial data to map and predict crime go back much further. Predictability emerged in the US as a guiding principle of parole and probation during the 1930s and 1940s, and from there spread into other sectors. And computer software and hardware firms such as Esri and IBM have been developing crime prediction programs since the 1990s. One of the most popular programs currently in use, PredPol, is based on algorithms developed by a research team that includes computer scientists, anthropologists and mathematicians. PredPol, which has raised millions of dollars in venture capital since its launch in 2012, includes advisors from the CIA’s venture capital firm, In-Q-Tel, and is in use by dozens of US police departments, including in Los Angeles and Atlanta.1 Its proponents celebrate it as a “magical” mode of law enforcement they describe as “sci-fi” or “crystal ball” policing.
PredPol’s algorithms predict crime based on the idea that criminal activity and seismic activity share similar patterns. PredPol co-founder George Mohler, a professor of mathematics at Santa Clara University, argues that earthquakes are usually followed by aftershocks. These are “clustering patterns” that Mohler’s algorithms assume are true also of crime. Mohler claims crime is always followed by what we might call aftercrimes, and further, that research in criminology demonstrates that crime is like a virus that spreads like a contagion. In other words, if crime patterns behave like earthquakes or viruses, then predictive policing deserves the same scientific status as seismology and epidemiology.
The rhetorical purpose of PredPol’s claims to science serves a very specific legal effect. At the heart of legal challenges to the police practice of stop and frisk, for example, is skepticism of police claims to prediction. In other words, it is the belief that it is racial profiling, and not knowledge of future crimes, that determines who police choose to stop and frisk. Predictive policing, however, provides seemingly objective data for police to engage in those same practices but in a manner that appears free from racial profiling.
Predictive policing exposes the liberal state’s desire for knowledge and intelligence of not merely the past, but the future. We might also reverse this and say predictive policing helps to illuminate a fundamental state anxiety: the fear of not knowing or the fear of the unknown. Predictive policing, then, demonstrates the ways police power tries to predict the future out of the fear of the unknown, and so it shouldn’t be a surprise that predictive policing locates the violence of the future in the poor of the present.
Notes:
1 Bond-Graham, Darwin and Ali Winston, “All Tomorrow’s Crimes: The Future of Policing Looks a Lot Like Good Branding,” San Francisco Weekly, October 20, 2013.
CompStat, which combines the words “computer” and “statistics,” has nothing to do with computers or statistics. It is a neologism that describes a police management philosophy that prescribes the aggressive policing of the poor, usually people of color, as a way to establish order.
CompStat began as a police reform measure in New York City under William Bratton in 1994. This is how Bratton described the purpose and outcome of CompStat: “We can all celebrate the fact that due to our collective efforts, crime has been significantly reduced on both sides of the Atlantic. Our insistence that ‘Cops Count’ is supported by the fact that when properly led, well trained and sufficiently equipped, the police can modify the behavior of the criminal element in our communities. Beyond the saving of lives and the reduction of crime and its victims, we can also appropriately take credit for helping to inject new quality-of-life initiatives into our inner cities, for spurring economic development and for returning large tracts of the urban landscape to the law abiding.”1
We could rewrite Bratton’s statement as follows: Crime rates accurately describe the behavior of criminals. Police violence deters this behavior. And this produces order, which is understood as the spatial and social exclusion of the poor from the city through arrest and incarceration in order to reserve the city for those with economic means.
The whole premise of CompStat begins with the idea that crime rates map criminal behavior and that a drop in crime rates is the miraculous accomplishment of police management. This is claimed as the central success of CompStat, and it’s how Bratton became a media darling. He was depicted on the cover of Time magazine in a 1996 story that credited him for a dramatic drop in crime in New York: “The drop became a giddy double-digit affair, plunging farther and faster than it has done anywhere else in the country, faster than any cultural or demographic trend could explain. For two years, crime has declined in all 76 precincts.”2 Crime rates, as Bratton and Time understand them, are an objective representation of illegal activity. The more illegal activity in a given area, the more arrests in that area, and therefore the higher the crime rate in that area.
Bratton developed CompStat as a way to implement and institutionalize broken windows policing, which assumes that crime is a function of urban disorder characterized by general lawlessness. In order to create order, police must oppose all forms of “lawlessness,” especially the most trivial. CompStat borrowed the broken windows focus on minor crimes, such as jaywalking, littering, public urination, graffiti, and the like, in order to focus police activity around practices designed to enhance what police call “quality of life.” This approach assumes that a relationship exists between these minor crimes and more serious ones. Thus CompStat takes credit for any measurable “reduction” in crime rates as a function of the “lawfulness” produced by the deterrent effect of intensified police power directed at the poor.
This is a self-serving premise. Most crime rate statistics are based largely on police arrests, and thus crime rates are a depiction of police behavior, not criminal behavior. Proponents of broken windows policing might reluctantly agree with this statement, but argue that since the police only arrest those they suspect of having committed a crime, crime rates still serve as a useful measure of illegal activity. But police arrest or don’t arrest, patrol or don’t patrol, target for stop and frisk or don’t target for stop and frisk, always at their own discretion. These are choices by individual police officers, choices that become enforced and monitored by CompStat command and control procedures. Command and control is not just about crime, but about making cops more efficient and prone to make arrests, since they are often judged based on how many people they stop and frisk or pull over and arrest. Individual officer discretion must be understood as always caught within a larger matrix of command and control, and hence the individual actions of cops are always really collective, coordinated actions that result in the very patterns CompStat seeks to impose: some people get arrested and some do not, some groups get targeted and some do not, some neighborhoods come under scrutiny and some do not. This is not about order per se; this is an effort to impose “a new moral order on the poor.”3 Therefore it is not accurate to say that crime rates objectively reveal criminal activity; rather, it is only accurate to say that crime rates describe the social and spatial patterns of the police.
In addition, “crime rates” have a long and notorious history in the promulgation of racist public policy. In the 1960s, Republicans and southern Democrats explained their opposition to the 1964 Civil Rights Act in the rising “crime rates” that they said followed Black civil rights struggles.4 “Violent crime rates in the nation’s biggest cities,” according to historian Khalil Gibran Muhammad, “are generally understood as a reflection of the presence and behavior of the black men, women, and children who live there.”5 Crime rates, in other words, reflect racialized patterns of policing, often called stop-and-frisk or quality-of-life policing, which describe the primary approach of CompStat. Police focus their activities in predominately Black and Brown neighborhoods, which results in high arrest rates compared to predominantly white neighborhoods, which reinforces the idea that Black and Brown neighborhoods harbor criminal elements, which conflates Blackness and criminality, which under CompStat leads to even more intensified policing that results in arrest and incarceration, which serves the interests of private capital, which creates the conditions for gentrification. CompStat is policing as capitalist urban redevelopment.
The logic of CompStat was transported to Iraq by the US Army and renamed TERRORSTAT. Broken windows policing is thus a mode of counterinsurgency warfare. Like military counterinsurgency or domestic community policing, CompStat seeks to legitimize police power by penetrating every aspect of life in the city. And since what CompStat claims as its focus—a drop in hypothetical future crime based on some vague relationship to quality of life—nothing, no activity, is ever beyond the police purview. CompStat is policing as domestic, urban counterinsurgency.
Notes:
1 Bratton, William J. and Sean W. Malinowski, “Police Performance Management in Practice: Taking COMPSTAT to the Next Level,” Policing 2:3 (2008), 259.
2 Lacayo, Richard, “Crime: Law and Order,” Time, January 15, 1996.
3 Vitale, Alex and Brian Jordan Jefferson, “The Emergence of Command and Control Policing in Neoliberal New York,” in Camp, Jordan and Christina Heatherton, eds., Policing the Planet: Why the Policing Crisis Led to Black Lives Matter, Verso, 2016, 158.
4 Murakawa, Naomi, “The Origins of the Carceral Crisis: Racial Order as ‘Law and Order’ in Postwar American Politics,” in Lowndes, Joseph, Julie Novkov and Dorian Warren, eds., Race and American Political Development, Routledge, 2008.
5 Muhammad, Khalil Gibran, The Condemnation of Blackness, Harvard University Press, 2010, 1.
Ghetto might come to us from the Italian “borgh-etto,” meaning little town, or it might refer to the Venetian “ghèto,” meaning foundry. Whatever its origins, the geography makes sense since we find the first ghetto in Venice in the early sixteenth century. For much of its first few hundred years, a ghetto referred always to a forced enclosure of Jewish people. The ghetto was the home of Jews who were expelled from England in the thirteenth century, and then banished to heavily policed districts in Rome by Pope Pius IV. The Jewish ghetto, in other words, was a place of internment. High walls and Christian guards defined the Venetian ghetto. A ghetto is a spatial enclosure, enforced by the state, designed to control the movement of a specific population.
The Jewish ghetto was an outdoor prison, later perfected by the Nazis. But contemporary use of the word ghetto is generally stripped of this carceral character. A ghetto is just a slum, a place where poor people choose to live. There are no Christian guards closing the gates each night. But this usage conceals the physical coercion and spatial control at the heart of ghetto. In much of the world, the ghetto is a space of social control for poor people. Post-slavery urbanity for Black people in the United States, particularly in Northern cities, was defined by social and spatial exclusion. The idea that the Black ghetto was a neighborhood of choice based on racial and class affinity, and not a function of brute force and an engine of dispossession, is “segregationist nostalgia [that] ignores the actual conditions endured by the people living there—vermin and arson, for instance—and ignores the fact that the old ghetto was premised on denying black people privileges enjoyed by white Americans.”1
Police patrol a district. Police work a beat. Police use force. And the force police use depends on the space they patrol. It is not enough to say that through police the state extends its power over a given territory. The police powers fabricate order because the police powers produce space. The ghetto perfectly illustrates the spatial effects of police power. Just as there could be no Jewish ghetto without Christian guards or Nazi planners and military personnel, there can be no Black ghetto without police. But police ask us to understand this quite differently. Police, we’re told, don’t make the ghetto; police patrol crime-infested neighborhoods. But space isn’t just inhabited; it is made. It is carried out. Thus to say that policing is a territorial logic is not merely to say that the police powers occur in and across space, but rather it is to say that police carry out police practices—arrest, the use force, stop and frisk—in ways that literally make space. Police make and remake the ghetto through racial profiling, which requires spatial profiling. Police identify people who appear out of place and thus become suspicious to police, and this requires more police, more patrols, more surveillance. Police make and remake the ghetto through broken windows policing, which imagines a space constantly at risk by dangerous people in dangerous places. “The only way to police a ghetto,” James Baldwin wrote, “is to be oppressive.”2
Baldwin wrote that the Black residents of Harlem didn’t hate the ghetto because of “disorder” and didn’t look to police to rescue them from “crime.” The “very presence [of police in Harlem] is an insult, and it would be, even if they spent their entire day feeding gumdrops to children. They represent the force of the white world, and that world’s real intentions are, simply, for that world’s criminal profit and ease, to keep the black man corralled up here, in his place. The badge, the gun in the holster, and the swinging club make vivid what will happen should his rebellion become overt.”3 The ghetto, the favela, the shantytown is a prison, and cops are the prison guards.
Notes:
1 Coates, Ta-Nehisi, “The Case for Reparations,” Atlantic, June 2014.
2 Baldwin, James, “Fifth Avenue, Uptown,” Esquire, July, 1960.
3 Ibid.
Police play a fundamental role in making urban space. Police manage the organized displacement of poor people in order to make way for low-income artists, students and hipsters, followed by more affluent white renters, homeowners, and commercial investors. For commercial developers, city planners and politicians, gentrification is the transformation of “blighted” urban space. It is progress because what was once “abandoned” to the poor is now reserved for the affluent. Gentrification increases property values and profits for landlords and local elites. The urban poor who are systematically evicted from their neighborhoods know that gentrification is not progress. Gentrification is revanchist urbanism: the exacting of revenge against urban undesirables—the homeless, petty criminals, prostitutes, drug users, street youth, and squatters—who stand in the way of a world of privilege and luxury, also known as the investment-backed expectations of real estate speculators. The word gentrification comes from the idea of “the gentry,” or the landowning classes. Gentrification is always about the transformation of land use, ownership and the city in the image of the wealthy.
Gentrification, as Neil Smith writes, “portends a class conquest of the city” with appeals for “taking back the streets” in the name of “urban redevelopment” or “reinvestment” in communities that have historically experienced disinvestment in good paying jobs and social infrastructure.1 Although bohemians looking for cheaper rents are often blamed for gentrification, this view mistakes gentrification as only about the individual preferences for particular places of new residents. Rather, gentrification is a geopolitical and geo-economic process of capital, and not merely people, moving back to the city. Gentrification, then, is capital on the move, and must be understood as a process of uneven development that begins with disinvestment. The historical process of white flight from urban spaces to suburbia, and the disinvestment that followed, including decades of intensive policing of the ghetto, produced the conditions for capital’s return: the revanchist city. This revanchist gentrification by capital activates, and is activated by, classed and racialized scripts of degeneracy, often through colonial mythologies of the “Wild West frontier,” of “cowboys and Indians,” and of courageous but innocent “pioneers” occupying savage spaces. Gentrification becomes a project of civilization, with police often leading the charge by “cleaning up” public space to secure capital investments and private property by the forced removal of poor people and activists. The violence of economies and the economies of violence animate this spatialization of class interests.
Gentrification is always propped up with racialized violence. Police are the armed agents that make so-called revitalization possible in the first place. You can’t have gentrification without police, and zero tolerance and broken windows policing have been at the forefront. Gentrification needs cops because capitalism needs cops. There is perhaps no better example than gentrification to highlight the productive nature of police power. That is, if police power is fundamentally about the fabrication of capitalist order, gentrification provides the grounded site where this is most visible and obvious.2 The raid, sweep, arrest, eviction, patrol, and police beatings and killings are key weapons of gentrification that make possible the art galleries, yoga studios, gastropubs, and posh bars and restaurants frequented by affluent customers. When rent and property taxes rise, who is called to evict the poor family? Cops. When affluent consumers complain about panhandlers, who is called to evict the disorderly person from the sidewalk? Cops. Who patrols the revitalized area, keeping a close eye on the burgeoning business fronts? Cops. The policing of gentrification is at once repressive and productive—the violence of police is the violence of building order.
Notes:
1 Smith, Neil, The New Urban Frontier: Gentrification and the Revanchist City, Routledge, 1996, 25.
2 Neocleous, Mark, The Fabrication of Social Order: A Critical Theory of Police Power, Pluto Press, 2000.
The phrase “broken windows” in the context of policing refers to a theory of social order first developed by James Q. Wilson and George L. Kelling in a 1982 Atlantic Monthly article in which they depicted “improperly maintained buildings, and broken windows on buildings and cars” as signs of social disruption that, unless addressed, gave implicit license to criminal activity. “Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.”1 For Wilson and Kelling, one broken window in one building on one street threatens the very fabric of social order and civility.
This theory of broken windows today justifies all manner of aggressive police tactics targeting the poor, often masquerading under the name of community policing. The proponents of broken windows argue that the theory is based on a series of axiomatic statements that go without saying—or should at least go without question—and provide the rationale for the intensive, aggressive policing that has become known as broken windows. These axioms could be defined as follows:
Axiom #1: Crime and disorder are “inextricably linked,” according to Wilson and Kelling, and therefore signs of disorder such as broken windows signal a “breakdown of community controls,” which leads to an increase in crime.
Axiom #2: Even if the disorder of broken windows does not lead to an increase in crime, residents will think it has and will “modify their behavior accordingly. They will use the streets less often, and when on the streets will stay apart from their fellows, moving with averted eyes, silent lips, and hurried steps.”2
Axiom #3: Broken windows will result in an increase in crime or a decline in civic life, and either way we will find a deterioration in quality of life, what we will call “urban decay,” a condition defined by despair and incivility not dissimilar to previous eras but distinct today because police no longer engage in the maintenance of order and instead focus entirely on crime fighting. In an earlier period, police would impose order in a community “sometimes violently, on behalf of the community. Young toughs were roughed up, people were arrested ‘on suspicion’ or for vagrancy, and prostitutes and petty thieves were routed.”3 But the shift from the maintenance of order to law enforcement has left a vacuum.
Axiom #4: Everyone desires order, and order in the city is defined by the values of the community, which are enforced by police. “The citizen who fears the ill-smelling drunk, the rowdy teenager, or the importuning beggar is not merely expressing his distaste for unseemly behavior; he is also giving voice to a bit of folk wisdom that happens to be a correct generalization—namely, that serious street crime flourishes in areas in which disorderly behavior goes unchecked.”4
Axiom #5: And finally, society “wants an officer to have the legal tools to remove undesirable persons from a neighborhood when informal efforts to preserve order in the streets have failed.”5
These five axioms are less a theory of broken windows policing than a version of conservative morality imposed by police on the poor—the “importuning beggars” and “prostitutes and petty thieves” who by their very presence threaten the bourgeois order broken windows policing seeks to create. As axiomatic statements, they offer a Hobbesian theory of human nature in which uncivilized, selfish impulses drive behavior. People only behave properly when in the presence of an authoritarian police force, and the threat of violent retaliation that police represent. Broken windows theory is consistent with all conservative social theory in that it is shot through with a wistful nostalgia for an imagined past in which people knew their place and cops did their job. And police of course must focus on the poor because, like most conservatives, Wilson and Kelling are “deeply skeptical of the ability of the poor to manage themselves in a civil manner” and so they blame “the moral failings of poor, mostly non-white communities” for everything “wrong” with the city.6 To the conservative, there is no such thing as poverty, there are only the poor, who individually break windows and collectively produce disorder through their various and many moral failings. They turn tricks, beg for dimes, break windows and frighten the affluent.
Broken windows theory finds the origins of disorder in the 1960s, which to Wilson and Kelling was not the era of civil rights struggle, but a decade of rising crime that flooded American cities with a great wave of disorder. This is why conservative social theory relies on law and order. Broken windows theory despises the impolite subject and sends police out into the streets to punish them.
William Bratton, a former police chief in Boston, New York and Los Angeles, was among the most prominent leaders to subscribe to broken windows policing. It was Bratton who brought zero tolerance to the theory. No infraction, no matter how trivial, must go unpunished. Crack down on jaywalking and littering, goes the theory, or watch the murder rate increase.
Broken windows policing reveals the police as not merely coercive and repressive, but productive in that police seek to manufacture a very specific kind of order—one where cities are populated by families and married couples who maintain property, hold down jobs, own homes and raise polite children. It is an order that demands how a place should look, describes what kind of people belong, and targets those who must be excluded. The behaviors that wage labor permits—shopping for groceries, paying your mortgage, buying a ticket to the zoo—are admired. The behaviors that poverty imposes—sex work, panhandling, street vending—are pathologized and policed. The protagonists of broken windows policing are the shopkeepers and taxpayers and property owners whose labor and consumption is productive. They are depicted as cowering in fear from the antagonists of broken windows policing: the woman walking the street, the man selling single cigarettes, and the homeless vet asking for a dollar. Broken windows theory asks us to fear them, teaches us to loathe them.
But this is all just a scam. Broken windows is a street hustle. Bratton and his crowd have us in a game of three-card monte and we keep picking the wrong card, the one depicting a fearful, respectable homeowner, and an earnest property tax payer sweeping broken glass from a stoop. But broken windows policing is not about them; that’s just the card they want us to pick. The card they keep palming—the “money card”—is the one that depicts the investment banker, the mortgage broker, and the real estate speculator, who have big plans and investment-backed expectations, but only if broken windows policing can remove the poor. So Wilson and Kelling keep dealing the cards, and Bratton plays the shill, and we’re the mark.
Notes:
1 Wilson, James Q. and George L. Kelling, “Broken Windows,” in Durham, Roger G. and Geoffrey P. Alpert, eds., Critical Issues in Policing: Contemporary Readings, Waveland Press, 2015, 457.
2 Ibid., 458.
3 Ibid., 460.
4 Ibid., 461.
5 Ibid., 464.
6 Vitale, Alex and Brian Jordan Jefferson, “The Emergence of Command and Control Policing in Neoliberal New York,” in Camp, Jordan and Christina Heatherton, eds., Policing the Planet: Why the Policing Crisis Led to Black Lives Matter, Verso Books, 2016, 158–9.
The vagrant is the enemy of police. The police forever hunt the vagrant, see the vagrant everywhere. The police power and the vagrant are bound together, each unthinkable without the other, and it is the intertwined problems of poverty and labor that binds them together. Vagrancy is a crime of status. It is a crime to be a vagrant and police define who and what one is.1 The vagrant is a problem for police not necessarily because of his or her actions or for being guilty of a crime, but first and foremost for being poor. The policing of vagabondage, then, provides an exemplar of the police power’s administration and criminalization of poverty under capitalism.
In sixteenth- and seventeenth- century England, vagrancy laws emerged as a response to various social disruptions. The most significant of these was the growing landless class of uprooted people that emerged from a crumbling feudal order. Thousands upon thousands of “vagrants,” and people in other associated categories such as “beggars,” “paupers,” “prostitutes,” and “gypsies,” were subjected to intensive legal and state intervention. As the peasant class broke their feudal chains to become “free” to sell their labor for a wage on the new market economy, they found themselves subjected to what Marx famously called the “bloody legislation against vagabondage”:
On the one hand, these men, suddenly dragged from their accustomed mode of life, could not immediately adapt themselves to the discipline of their new condition. They were turned in massive quantities into beggars, robbers and vagabonds … hence at the end of the fifteenth and during the whole of the sixteenth centuries, a bloody legislation against vagabondage was enforced throughout Western Europe. The fathers of the present working class were chastised for their enforced transformation into vagabonds and paupers.2
This bloody legislation was part and parcel of the violence of primitive accumulation, and key to this dispossession was the police power, understood as a broad state logic that predated the police as such but remained operative once this institution formed. The central mandate of the police power was to fabricate a general state of prosperity by administering a social order of private property, wage labor, and capital accumulation. Vagabondage was a fundamental threat to these things. The hunting and capturing of vagrants across Europe, we might say, was the “founding act” of police power, and vagrancy would continue to be a central object of police pursuit in essentially every historical stage of the police.3
Vagrants were said to be “masterless men” because they were idle, lazy, wandering, lawless and dangerous. Vagrants are defined in essence by what they are said to lack. But vagrants are not merely isolated individuals. The vagrant has always been understood as a class of the poor, defined by those who refuse to regularly work for a consistent wage even though they are able.
As understood by political and cultural elites at the time, vagrancy was a grave disorder threatening the nascent capitalist order. Vagrants, then, were not merely ordinary criminals that needed some regulation. This growing class of masterless men became the primary enemy in the social war to secure capitalist accumulation, and it was the entire state apparatus of laws such as the Poor Law, workhouses, police, and jails that were charged with mastering the masterless. Vagrancy laws and police statutes were pacification laws, impositions of work to be enforced by police power, to compel subjects to work, which is to say to produce not merely docile citizens, but docile, rational, and obedient workers.
The problem of vagrancy also played a crucial role in the policing and criminalization of freed slaves in the years after chattel slavery was abolished. Freed slaves found themselves freed from slave labor only to sell their labor on the free market. Like the vagrants of Western Europe they found themselves subjected to a version of bloody legislation called the Black Codes. These laws and ordinances were specifically designed, as W. E. B. Du Bois wrote in Black Reconstruction, “to make Negroes slaves in everything but name.”
Yet, in the face of this, the Black Codes were deliberately designed to take advantage of every misfortune of the Negro. Negroes were liable to a slave trade under the guise of vagrancy and apprenticeship laws; to make the best labor contracts, Negroes must leave the old plantations and seek better terms; but if caught wandering in search of work, and thus unemployed and without a home, this was vagrancy, and the victim could be whipped and sold into slavery.3
As Du Bois makes clear, the mandate of the Black Codes such as curfew and vagrancy laws was to keep freedmen in an exploitive wage relationship that would maintain their condition of poverty and, for many, slavery in all but name. From the slave patrol came the nascent police force armed with the newly formed vagrancy laws and Black Codes. At times vagrancy laws were not overtly racial, but their application was first and foremost racist as they directly assisted in the political economy of convict leasing and the larger legal order of Jim Crow.
In postwar America during the 1950s and 1960s, vagrancy was a widely used police justification to intervene in the lives of not only the poor, but of those people identified by police as civil rights or anti-war activists, working-class queers, and immigrants. The police use of vagrancy law was not isolated to urban geography, as rural police also often resorted to it. When police sought a nearly foolproof justification to arrest virtually anyone, they found it in vagrancy. Eventually, the Supreme Court struck down vagrancy laws in the early 1970s, at least on the surface. But the broad discretionary powers of police were sustained.
Vagrancy, vagrants, and vagabondage are not commonly used terms in popular culture or legal doctrine today, but the figure of the vagrant remains a prime object of police power under different names. Police identify people as vagrant-like objects through a very telling vocabulary: the “suspicious person” or “panhandler” or “inebriate,” among other terms. Indeed, a central lesson of vagrancy is that vagrancy remains an indispensable police category largely by its vagueness and mutability. Wherever there is police power there will be some criminalized vagrant-like character living outside the wage relation or in search of it. And vagrants are never simply vagrants; they are always merging with other transgressive figures, such as those who cross national borders in search of work. The migrant-as-criminal who is policed as a criminal due only to the status of the migrant-as-migrant must also be seen as belonging to the history of vagrant policing. The modern-day vagrants are also those unemployed workers who have been “laid off” due to capital flight overseas or the austerity of “budget cuts.” Or the homeless populations on Skid Row or the destitute loiterers on street corners. Or the prostitutes walking the streets and the hitchhikers wandering the highways. The day laborers and squeegee men of the urban city are also modern-day vagrants. Florida rent-a-cop George Zimmerman deemed Trayvon Martin a threat partly due to his appearing a vagrant as the seventeen-year-old Martin walked through a gated community while wearing a modern day symbol of vagrant thuggery, the hoodie. As long as police haunt urban space, there will be the specter of the vagrant.
Notes:
1 Beir, A. L., Masterless Men: The Vagrancy Problem in England 1560–1640, Methuen, 1985, xxii.
2 Marx, Karl, Capital: A Critique of Political Economy, Vol. 1, Ben Fowkes, trans., Penguin, 1976, 896.
3 Chamayou, Grégoire, Manhunts: A Philosophical History, Princeton University Press, 2012.
4 Du Bois, W. E. B., Black Reconstruction in America 1860–1880, Harcourt, Brace and Company, 1935, 67.
Police interrogation is confession-taking. The practice is the single most important factor in police criminal investigations. “Prosecutors make significant charging decisions, plea bargaining moves, arguments to juries, and sometimes even sentencing recommendations based on confession evidence alone.”1 The most widely used police interrogation training manual explains that taking confessions is so important that the “prosecution may even secure a conviction on the basis of an oral, unwritten, or unrecorded confession with very little corroborating evidence.”2
And it happens entirely behind closed doors, hidden from view, in windowless interrogation rooms called “the box” where police “exercise and mystify their power.”3 Police confession-taking is openly organized around duplicity and deception. Police create an oppressive atmosphere in the interrogation room in order to carefully stage a drama designed to foreclose any alternative to confession. Police are trained to lie, to deceive, to trick, to play on your greatest fear and your deepest shame. The 1931 Wickersham commission, a federal investigation into police practices, noted that “the inflicting of pain, physical or mental, to extract confessions or statements … is widespread throughout the country.” Police reformer August Vollmer, the author of the Wickersham report, wrote a preface to a 1940 interrogation manual that taught police to use emotional manipulation and deception. The police interrogator lies in order to produce the “truth.”
A sixteen-year-old confessed to police of the murder of William Gaitan in Los Angeles in 2011, but video evidence placed him miles from the killing.4 A fourteen-year-old boy, later proven innocent, initially confessed to police of the murder of his twelve-year-old sister in 1998 after police convinced him that he did it but just couldn’t remember the act. According to the Innocence Project more than 25 percent of people exonerated of crimes for which they were convicted initially confessed to the crime during a police interrogation.
Given the uncertainty surrounding confessions and the duplicity of police, what explains the overwhelming legal importance placed on confessions by prosecutors, juries, and judges? How can confessions be simultaneously unreliable and beyond legal reproach? Police training manuals explain that the confidence in confessions lies in the public trust invested in police. This may be true, but not for the reasons police imagine. The police are a “confession-taking” power, and this is a power with a long political history. The obligatory practice of Christian confession, which first began in the thirteenth century, gave rise to the act of confession as a permanent feature of modern life. Michel Foucault considered confession “one of the West’s most highly valued techniques for producing truth.” As he argued:
The confession has spread its effects far and wide. It plays a part in justice, medicine, education, family relationships, and love relations, in the most ordinary affairs of everyday life, and in the most solemn rites; one confesses one’s crimes, one’s sins, one’s thoughts and desires, one’s illnesses and troubles; one goes about telling, with the greatest precision, whatever is most difficult to tell. One confesses in public and in private, to one’s parents, one’s educators, one’s doctor, to those one loves; one admits to oneself, in pleasure and in pain, things it would be impossible to tell to anyone else, the things people write books about. One confesses—or is forced to confess. When it is not spontaneous or dictated by some internal imperative, the confession is wrung from a person by violence or threat; it is driven from its hiding place in the soul, or extracted from the body.5
It is through confession, we learn, that the authentic version of oneself comes into view. “Tell me the truth of yourself so I can know you,” we are told. Whether extracted by priest or police, a confession is imagined as always an unmasking, a revealing of a hidden truth. When finally released by confession and captured by police, truth is established. There is no recanting. There cannot be because it is the only real thing we know about you. From religious confession emerges the pious; from police confession emerges the criminal.
Police confession-taking is not limited to the interrogation room. We are always confessing, because police are always interrogating. All communication between cop and citizen is an interrogation. The stop and frisk on the street (“What are you doing here?”), the traffic cop (“Do you know why I pulled you over”?). Community policing, for example, means constant interrogation: walking the neighborhood, visiting schools, playing midnight basketball with kids, asking how things are going.
Police interrogation is a pursuit, a manhunt, and the prey is the true you. But what can “true” mean when we learn that deception and violence, or the threat of violence, lies at the heart of police confession-taking? It means that confession-taking is not about truth-seeking, it is about power.
Foucault called confession “the effect of a power that constrains us.”6 Sometimes that constraint takes the form of a handcuff to a hot radiator. This is how Jon Burge tortured confessions out of hundreds of Black men in Chicago from 1972 until 1991. Burge, a Chicago Police Department detective, first learned the principles of confession-taking in the US Army while serving in Vietnam and brought this practice with him to Chicago where he ran a squad of detectives who routinely took suspects into basement interrogation rooms and beat them with phone books and poked them with cattle prods (see Taser). They attached wires coming from small hand-crank generators to the faces and genitals of their victims and electrocuted them. They burned them with cigarettes, beat them with their fists, and water-boarded them before waterboarding had a name. This is the truth of interrogation.
Notes:
1 Leo, Richard A., Police Interrogation and American Justice, Harvard University Press, 2008, 3.
2 Inbau, F. E., J. E. Reid and J. P. Buckley, Criminal Interrogation and Confessions, Williams & Wilkins, 1986, 176.
3 Leo, Richard A., “Miranda’s Revenge: Police Interrogation as a Confidence Game,” Law and Society Review 30:2, 1996, 261.
4 Elinson, Zusha, “False Confessions Dog Teens,” Wall Street Journal, September 8, 2013.
5 Foucault, Michel, History of Sexuality, Volume 1: An Introduction, Pantheon, 1978, 59.
6 Ibid., 60.
The phrase “good cop, bad cop” usually refers to a police interrogation tactic in which two police officers, one acting kindly and one more harshly, interrogate a suspect. The threat of violence by the bad cop toward the suspect is intended to generate fear as a way to secure a confession from the suspect. The role of the good cop in this drama is to impress upon the suspect the need to confess as the only way to avoid the violence of the bad cop.
“Good cop, bad cop” is a staple set piece in the police procedurals common on US television. It is compelling because it relies on two widely held views of police. The first is the belief common among police and their allies and even by most police critics and reformers that everything bad about police—police corruption and misconduct—is always a result of the isolated act of a bad apple. It is the bad cop who uses excessive force, who lies under oath (see testilying), and who plants evidence (see throw-down weapon), and therefore police reform is always an effort either to purge the police of the bad cop or to expel the bad behavior from the bad cop through improved training, supervision, or increased surveillance.
Second, it is the appeal to and promise of the mythical good cop that gives this drama its feel-good character. For police reformers, the good cop is the default category of the police officer. Like children from the womb, all cops leave the police academy as good cops. This is why police reformers always respond to criticisms of police violence by calling for community policing, which just means more police.
But the theatrical power of “good cop, bad cop” comes not from a tension within the police. There is a third character in the interrogation room drama, and it is law itself. The bad cop is bad only because law, particularly its due process guarantees and the rights it extends to the accused, are depicted as standing between police and truth. In other words, what is bad in police is depicted as something rotten in law. This displacement serves as the rationale for all kinds of routine police acts, such as beating confessions out of suspects. Police corruption can only be understood from this vantage point as situational. The bad cop in the interrogation room is merely playing a bad cop. This is how police apologists depict themselves as realists and demand reforms that always include an expansion of the criminal justice system. More cops, more prosecutors, tougher criminal penalties, stricter bail standards. And these arguments win the day because the “good cop, bad cop” scenario structures popular conceptions of police as crime fighters and justice-seekers. But it pays to remember that the good cop is not a stand-in for good policing. Rather the good cop is merely a trope of police reform—perhaps the central trope—that works to seduce us into seeing the world as disorderly and police as the only antidote. “There is no greater fiction than the media version of a good cop.”1
“Good cop, bad cop” is melodrama and it is meant for all of us. But we are not the audience. We are the suspect sitting in the interrogation room. And the good cop of police reform tells us that we have only two choices: we either let them get tough on crime or we risk unleashing the bad cop. “Don’t you see?” we’re told. We have only ourselves to blame, not police.
Notes:
1 Lovell, Jarret S., Good Cop, Bad Cop: Mass Media and the Cycle of Police Reform, Criminal Justice Press, 2003, 42.
At the heart of police powers lies a predatory animus. Police pursuit is a hunting power. Everyone who has ever been arrested has been hunted. Nine million people worldwide, as of 2016, live lives behind bars, in cages, behind prison walls. Before any of them were incarcerated, they were hunted.
The power to arrest and detain requires first a hunt. The power of investigation and interrogation requires first a hunt. The power to use force, including lethal force, requires first a hunt. This power of pursuit is a “cynegetic power,” as Grégoire Chamayou describes it, which “developed largely outside the judicial framework that now justifies it.” This is because “police, as a power of pursuit, does not deal with legal subjects but rather with bodies in movement, bodies that escape and that it must catch. Bodies that pass and that it must intercept.”1 The purpose of pursuit is not to enforce the law, but to catch the prey.
Police pursuit, in other words, does not follow or enforce law. It necessarily exceeds it. In pursuit, police have the discretion to violate law. Police pursuit includes enticement and entrapment: bait cars to catch car thieves, hand-to-hand drug sales to catch drug dealers. The hunt, the pursuit, is depicted as an instrument of law, but it is more accurate to say that law serves the police hunt. Law makes an exception for hot pursuit, which allows police to privilege their hunt over your safety. According the National Highway Traffic Safety Administration, police pursuit resulted in 2,654 fatal crashes between 1994 and 2002, which involved 3,965 vehicles and killed 3,146 people. Of those killed, more than a thousand were bystanders to the hunt.2 The police hunt includes a prey, and it might require a sacrifice.
There is nothing police do outside the hunt. Community policing and police reform are pacification hunts. The police helicopter is called the “heavenly prowl car.” The military Predator drone hunts for prey. Police hunt their human prey in cars and helicopters with weapons and dogs (see K-9)and this makes the police hunt more animal than lawful. A deer hunt and a police hunt both end with a trophy shot: the cop posing with his prey is like the hunter holding his dead deer. We see this in the famous photo of Chicago police officers Timothy McDermott and Jerome Finnigan kneeling beside a Black suspect, posing for a photo. They hold rifles and grin broadly. Between them, on the ground, lies their prey, a Black man held to the floor, his “tongue dangling from his open mouth, antlers fixed to his head.”3 This is the trophy shot that follows pursuit, a picture of domination and, often, death that celebrates the police hunt.
Notes:
1 Chamayou, Grégoire, Manhunts: A Philosophical History, Princeton University Press, 2012, 90.
2 Rivara, Frederick P. and Chris D. Mack, “Motor Vehicle Crash Deaths Related to Police Pursuits in the United States,” Injury Prevention 10:2 (2004), 93–5.
3 Linnemann, Travis, “Proof of Death: Police Power and the Visual Economies of Seizure, Accumulation and Trophy,” Theoretical Criminology 21:1 (2016), 14.
There is revolutionary potential in a crowd. It is always the crowd that threatens the order that police so methodically keep. Cops are scared of crowds.
We can trace the story of the crowd and the fear it gives police to multiple origins. In the United States the specter of slave collectives and rebellions in the eighteenth and nineteenth centuries stoked fear in the hearts of plantation owners and slave overseers. The slave patrol, the first police in the Carolinas and Virginia, ruthlessly patrolled outside plantations and frequently searched slave quarters for evidence of planned rebellions and collectives. In Europe it was the Paris Commune of 1871 and the lasting obsession it left among reactionary political thinkers and police with crowds and the threat they posed to bourgeois order. The reactionary French sociologist Gustave Le Bon called the years that followed the Commune the “Era of Crowds.” The energy of the Commune and the power of the crowd aimed “to utterly destroy society as it now exists, with a view to making it hark back to that primitive communism which was the normal condition of all human groups before the dawn of civilization. Limitations of the hours of labour, the nationalization of the mines, railways, factories, and the soil, the equal distribution of all products, the elimination of all the upper classes for the benefit of the popular classes, etc., such are these claims.”1 Consider the power and potential Le Bon places in crowds. Only crowds—crowds of escaped slaves or the working class—have the power to upend an entire social order. The “purely destructive nature” of the crowd threatens bourgeois privilege, and it is that privilege that Le Bon calls “civilization” against the crowd.
To police, the potential disorder of a crowd makes it always a threat, always loaded with revolutionary possibility. Le Bon describes a crowd as having a collective mentality. In the crowd people are suddenly put “in possession of a sort of collective mind which makes them feel, think, and act in a manner quite different from that in which each individual of them would feel.”2 Le Bon sees in a crowd a kind of “hypnotic order,” and therefore the crowd is always dangerous to bourgeois order. It is in the crowd that a new view of society can emerge, one in which the otherwise stable social forms of capitalism suddenly appear fragile, and egalitarian alternatives might appear possible. It is in the crowd that Le Bon sees the specter haunting Europe. But Le Bon is quick to note that a crowd could be conservative as well. There is no inherent political content to the crowd. Ideas work through a crowd like a contagion and compel people into unpredictable action. According to Le Bon, a person in a crowd is “under the influence of a suggestion, he will undertake the accomplishment of certain acts with irresistible impetuosity.”3 This is the classical view of crowd psychology, one in which crowds are always irrational and dangerous. It is a view that has influenced fascists, commercial advertisers, US presidents and, of course, police—all those who have sought to harness the potential of crowds, or to destroy it.
Le Bon wrote the playbook for police crowd control. Even the peaceful crowd, according to Le Bon, has the capacity for sudden and revolutionary violence. Thus police confront a crowd always with overwhelming force. It is the crowd’s possibility of violence, an idea that comes from Le Bon, that police point to in order to legitimize crowd control tactics. Consider the way a police “anti-riot operations guide” begins first with a fear of the unpredictability of the crowd: “Demonstrations and civil unrests can range from simple, non-violent protests addressing specific issues to events, which turn into a full-scale riot … Agitators and criminal infiltrators within a crowd can lead to the eruption of violence.” To police, the crowd is always about to explode. “With tensions high, it takes just a small (sometimes seemingly insignificant) incident, rumor, or act of injustice to ignite certain groups within a crowd to start a riot, and violent acts.”4 To the police a crowd is a riot about to happen. And so police use force indiscriminately against the crowd, which produces exactly the chaos and disorder that police attribute to the crowd, which in turn rationalizes an expansion and constant escalation of police violence.
But Le Bon also made clear that while crowds are “difficult to govern”, there is always a “ringleader or agitator.” And so police hunt in the crowd, constantly in pursuit. Consider the testimony of Adrian Jones, a police consultant and “expert” on civil disturbances, when called to testify before the House Un-American Activities Committee in 1967:
HUAC: What countermeasures would you suggest based on your studies during the crowd phase?
Jones: This is a very important time. If counter-measures fail during this phase a riot will ensue. If countermeasures are successful, there will be no riot. One of the basic objectives is either to disperse the crowd or to bring the crowd under control, to maintain contact with the leaders, and possibly to give the dissidents some sort of outlet. For example, let them state their grievances, try to use the leaders in order to control the crowd. Another countermeasure that can be taken during this specific time is to prepare and station riot-control forces to handle any situation, to utilize a clear show of force, to arrest agitators if there are legal grounds, and to identify the riot leaders and to remove them if possible.
HUAC: What about the actual riot or civil disturbance phase?
Jones: Once this particular phase is started, it is very difficult to avoid the use of the force of the state. This force is sometimes applied through batons, riot-control formations, police dogs, and chemical munitions. The procedure of the United States Army is to first use a show of force; then to use riot-control formations; then to consider the use of streams of water; then the use of chemical agents; then fire by selected marksmen; and finally, under very extreme conditions, full fire power.5
Along with “full fire power” comes another option. The crowd can be manipulated. Le Bon reminds police that a crowd is imbued with an “excessive suggestibility.” Instead of hunting “ringleaders,” police can use red squads to infiltrate the crowd with agents provocateurs. At an anti-war demonstration on the campus of the University of Alabama in 1970, an undercover cop set fire to a campus building and threw firebombs at police. It was entirely the actions of the agent provocateur that police used to justify a crackdown on all protest and arrest 150 people. In December 2014, “an undercover California Highway Patrol officer who was attempting to infiltrate a demonstration against police brutality in Oakland pulled a gun on the protesters after he and his partner were outed and the partner was attacked.” According to eyewitnesses, both officers were inciting protesters to “acts of vandalism.”6
There is a great irony here. Mainstream social psychology rejects Gustave Le Bon’s theories of the crowd, in particular his claim of a collective mind, his notion of a hypnotized order, and his metaphoric use of contagion to explain the crowd’s behavior. None of this is true, they say. But when the crowd is made up of police, it seems always true. Against the protest, any imagined individuality of police dissolves into the collective police mind. Each riot-helmeted cop looks like every other nightstick-wielding cop, each tear gas–firing cop behaves just like every other flak-jacketed cop. As though hypnotized, the police crowd moves in swarms, attacks in waves, disperses and reassembles according to some invisible force. Police gas protesters in the face who are sitting in a circle. Police beat protesters with truncheons who are following commands. It is not “discipline” or “training” that determines the behavior of police in the crowd, but rather the logic of police—of force—fueled by unlimited power, fueled by the crowd.
Notes:
1 Le Bon, Gustave, The Crowd: A Study of the Popular Mind, Fischer, 1897, 9.
2 Ibid., 15.
3 Ibid., 18.
4 Hunsicker, A., Behind the Shield: Anti-Riot Operations Guide, Universal Publishers, 2011, 40.
5 Testimony of Adrian Jones, “Subversive Influences in Riots, Looting, and Burning,” House Un-American Activities Committee, October/November 1967.
6 Ho, Vivian, “Undercover CHP Officer Pulls Gun at Oakland Protest after Outing,” San Francisco Chronicle, December 11, 2014.
Police brutality is the most commonly used expression to discuss police violence. Although rarely noted, the phrase itself speaks to a certain animalization of police power: the etymological root of brutality is “brute” which in turn evokes an uncivilized, savage beast.
Hence referring to police violence as a form of brutality is at once an identification of the violence of police with an animalistic quality, an uncivilized, beastly violence. The irony here is that the police institution has historically framed itself as the supreme instantiation of civilization. Historically, the term civilization was once synonymous with police—to police is to civilize, to polish or make polite (note the etymological links with police) the uncivilized and impolite brutes threatening white bourgeois order.1
More specifically, the charge of police brutality is usually an allegation of excessive violence, or violence that is illegal, or outside of the rule of law, or at least beyond publicly acceptable police practice. Importantly, most cases of so-called police brutality—such as beating a person of color while handcuffed or shooting an unarmed homeless person—are most often determined by internal investigation or by the judicial system to be legal. This fact highlights the pitfalls of the term, since what commonly goes by police brutality works to demarcate between acceptable and unacceptable state violence, and therefore simultaneously works to legitimate all sorts of police violence that might not be deemed excessive or illegal. The problem with police brutality, then, is the way this phrase often works to obscure attention on the normal, routine, and everyday forms of police violence that are internal to the police mandate. Police brutality, as a way to understand police, risks normalizing all sorts of racialized, classed, and gendered legal terror.
Arrest is a euphemism for captivity, a term that codifies and dresses up in juridical language a mode of legal violence via bodily capture. The Oxford English Dictionary defines arrest as “To capture, seize, lay hold upon, or apprehend by legal authority” and “to restrain a man of his liberty, obliging him to be obedient to the law.” To be arrested is to be captured, to be caught and deprived of bodily autonomy (that is, liberty and freedom), however temporarily or prolonged captivity might last. Arrest as not only a mode of state violence, but an initial and primary site of incarceration.
The United States leads the world in rates of incarceration, with nearly 2.5 million people forced into cages called prisons and jails. And they are first forced there by police arrest. You cannot put people into cages without first sending out police to hunt and capture them via the powers of arrest. The entire violence of prison and jail is initiated by the hunting powers of police, a power of pursuit that often culminates in the captivity of arrest. Hunting always precedes caging.
Arrest is commonly understood as a cop arresting a person—an individual—but individual arrests are never isolated incidents. The United States of America might as well be called the United States of Arrest, given that at least since 1980 anywhere from 10 to 15 million people are arrested each year. The result is that today there are approximately 70 million people with arrest records, even though most are not arrested for a serious crime and most are never indicted or charged.
It should not come as a surprise that not all demographic groups are hunted and captured at the same rate. Racial minorities are overrepresented in arrest numbers, and this is a primary factor contributing to the overrepresentation of people of color in prisons and jails, with Black people the most likely to be officially held captive. Police in the St. Louis suburb of Ferguson, Missouri, which came under scrutiny following the police murder of Michael Brown in 2014, almost exclusively arrest Black people. In addition, out of the 21,000 town residents in 2014, 16,000 had active arrest warrants, meaning only 5,000 residents of Ferguson were not fugitives from police power.
Arrest statistics are important not only for the way they mark the racialization of capture, but also, according to the scholar Kahlil Gibran Muhammad, for the way they operate as a racist ideology that “proves” Black inferiority or criminality.2 The fact of arrest has come to represent the fact of Black criminality. Of course, this is circular: arrest = crime = arrest. What is so often missed is the politics of criminalization, or the ways that arrest statistics are not an accurate marker of racialized criminality but are instead a marker of racialized criminalization projects. Put another way: arrest statistics tell us little about the true or objective nature of crime across demographics. More than anything, arrest statistics tell us very little about criminals, and a hell of a lot more about police. They tell us who police prefer to hunt and capture and what parts of a city are the preferred hunting grounds.
The United States is a nation of captives and has always been a nation of captives, founded on the colonial practice of hunting, capturing, and caging Indigenous and African people. Arrest powers have always been central to these projects, eventually codified in the formal police powers granted to cops, with the hunt for vagrants a central part of this project. Arrest is one of the most normalized violences of the capitalist state, and once captured via arrest a criminal record is inevitably chronicled within the archives of the security state, haunting the captive throughout his or her life. Resisting arrest then requires a steadfast attention to not merely the sensational acts of police violence—police brutality or even what the Department of Justice calls justified shootings—but the normal and everyday violence of the capitalist state that is often misrecognized as something other than violence. This is also why a politics of abolition, which often focuses primarily on the cages of prison and jail, must endlessly work towards the abolition of arrest, the abolition of capture—the abolition of police.
Notes:
1 Neocleous, Mark, War Power, Police Power, Edinburgh University Press, 2014.
2 Muhammad, Khalil Gibran, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, Harvard University Press, 2010.
Plain view, or plain sight, refers to an exception to the requirement that police seek a search warrant before conducting a search. The Fourth Amendment protects against unreasonable searches and seizures by the state. Since People v. Marvin in 1934, the courts have defined a police search as “a prying into hidden places for that which is concealed.” Therefore police must first secure a warrant before engaging in a search. But if evidence of a crime is in plain view there is no need for an officer to first secure a warrant before conducting a search.
According to the plain view standard, you do not have an expectation of privacy on something that is in plain sight, which would make sense if plain view meant plain view, but it does not. Consider the case of Texas v. Brown. Police stopped a car at a traffic checkpoint. A traffic cop shined his flashlight into a vehicle and saw an opaque balloon in the back seat. This apparently raised the cop’s suspicion because balloons are sometimes used to ferry drugs, the officer later claimed. The driver opened the glove compartment to retrieve his driver’s license. As he did this, the officer aimed his flashlight into the glove compartment and saw vials of white powder (he claimed). The officer then arrested the driver on suspicion of drug possession and seized the vials and the opaque balloon resting on the backseat. The balloon was later found to contain heroin. But this is a violation of the plain view doctrine. The balloon was plainly visible, but the heroin was not. According to plain view, the officer cannot seize the balloon without a warrant. This is what the defendant’s lawyer argued in a suppression hearing. The judge denied the appeal and allowed the evidence for trial. The defendant was convicted of drug possession. The Texas Court of Criminal Appeals, however, disagreed and overturned the conviction based on the fact that the heroin in the balloon was not “immediately apparent” to the officer because it was not in plain view. The Supreme Court later reversed the decision by reinterpreting the plain view doctrine in a manner consistent with the way it was applied by the police officer. According to the Court, the officer claimed he had reasonable suspicion that the balloon contained heroin and therefore the search and seizure did not violate the unreasonableness standard. In other words, despite the fact that the heroin was not in plain sight, the courts declared the search and seizure legal according to the doctrine of plain view.1
What is the relationship of police to law? The standard view tells us that the police are an instrument of law, that police officers abide by and enforce the law. But the decision in Texas v. Brown, and others like it, suggests that the relationship should be understood in reverse. Law is an instrument of police. We are taught the law guides and limits police, but in fact it does quite the opposite. Law grants police cover for many practices after the fact. Consider the many doctrines of exception to the Fourth Amendment protection against unreasonable search and seizure by police:
Probable cause: in Utah v. Strieff the Supreme Court interpreted probable cause, a standard that purportedly limits police discretion to stop and search people, as permitting random stops. Police can stop you on the street for no reason, demand your identification for no reason, check you for outstanding warrants for no reason. And if a police officer finds a warrant, they now have a reason to search you. As Associate Justice Sonia Sotomayor explained in her dissent, the warrant search is among the most common ways for police to conduct warrantless searches. “The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.” And since “the Department of Justice recently reported that in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them,” the warrant search is a way for police to overcome any limit on police searches and seizures. As Satnam Choongh explains it, “The law does not recognise suspects as having a right not to be stopped, searched, arrested or detained without charge or trial. The law does not proclaim that suspects have an absolute right not to answer police questions, or that they have a right not to be man-handled by the police once arrested. Instead the law speaks primarily in terms of what the police can do to the suspect.”2
Reasonable suspicion: this standard allows police to stop and frisk people without a warrant if police have “specific and articulable facts” of a crime. According to the court in Floyd v. New York City, New York police based their aggressive stop and frisk policy “on criminal suspect data, of which race is a primary factor.” In other words, to police in New York, race establishes reasonable suspicion of crime. NYPD “carries out more stops where there are more black and Hispanic residents, even when other relevant variables are held constant.” NYPD cops “are more likely to stop blacks and Hispanics than whites within precincts and census tracts, even after controlling for other relevant variables.” NYPD is “more likely to use force against blacks and Hispanics than whites, after controlling for other relevant variables.” And finally, “NYPD officers stop blacks and Hispanics with less justification than whites.” And half of all stops lead to frisks, while only 1.5 percent of frisks reveal a weapon. And this is a practice that, according to law, conforms to the doctrine of reasonable suspicion that claims to protect people from unreasonable search and seizure.
Plain view, as with probable cause and reasonable suspicion, is not a legal doctrine that limits the police powers; it extends them. And this exposes a fundamental problem of police reform as a form of pushback against the police powers that relies almost exclusively on law. Reformists constantly seek to hold police accountable and they look to law and the courts to do this. But we know from legal and police history that law does not discipline or limit police. Law trails behind police, lingering in the wreckage, pointing out the broken bodies and the violated rights and explaining why it’s all perfectly legal. The only thing in plain view is the fact that police do not follow law; law follows police.
Notes:
1 Texas v. Brown, 460 US 730 (1983).
2 Choong, Satnam, Policing as Social Discipline, Clarendon Press, 1997, 217.
Asset forfeiture refers to the confiscation of private property by the state. Police agencies seize assets generated in the course of criminal activity, such as the proceeds of arrests from War on Drugs policing. In the United States, county sheriff’s departments forcibly evict tenants and seize, and subsequently sell, foreclosed property. In addition, police often seize property used in the course of illegal activity, such as a car used to transport contraband of one sort or another. Property is often described as a kind of social relation, but it might also be understood as an ongoing police operation. According to the US Department of Justice, police in 2012 made nearly 9 million arrests for property crimes. And police also seize and acquire property via policing. Confiscated money or seized property is almost always used to expand police—to hire more cops, purchase more equipment, pay for more overtime. The practice of asset forfeiture is described as fairly recent and the logic offered for the practice is simple: criminals should not profit from their criminal activity; instead they should forfeit their right to the money they generate or the property they put to use in the course of their criminal activity.
There is however a longer history and deeper logic at work, and one that reveals the constitutive role of policing in the fabrication of a racialized and propertied order. Throughout the early twentieth century, the broad acceptance of eugenics in the United States influenced the way rights, including the right to own property became regulated by the state. Eugenics is usually thought of as a pseudoscience of race, but it should be understood instead as a racialized legal regime of property, or even better, a form of police power that prescribed limited rights to reproduce and own property and restricted these rights, via coercive enforcement, to only those deemed fit. The category of the “unfit” turned on the notion of “tainted” blood. Blood was considered a kind of property that marked one’s fitness for citizenship or one’s proclivity for crime. The “unfit” of eugenics were those defined through a categorical logic—idiot, moron, imbecile, etc.—applied to poor rural whites, Indigenous people, urban Black folk, and the imprisoned. The specter of the criminal haunting white bourgeois society frightened progressives and reactionaries alike. Crime was a sign of corrupted blood. The goal of good order, therefore, required a police force capable of extending its concern to, and authority over, life itself. Taking property, taking life.
In other words, the eugenic state determined it was illegal to inherit the property or genes of those deemed unfit. More than 60,000 men, women and children were sterilized against their will in the United States during the middle of the twentieth century. The Supreme Court in 1927 in Buck v. Bell upheld the right of states to engage in compulsory sterilization “for the protection and health of the state.” Writing for the majority, Oliver Wendell Holmes argued that “it is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”
The common practice of asset forfeiture suggests that eugenics remains a guiding logic of police power and a potent source of legal order in the US criminal justice system. Consider that in the United States, nearly one in every 2,000 people is sentenced to life in prison without the chance for parole. Black people constitute nearly 60 percent of all people sentenced to life in jail. That number reaches greater than 70 percent in federal prison.1 This is a state of affairs that follows perfectly from the logic of eugenics: crime is a genetic disposition associated with poverty and race, and thus the poor are stripped of their property and their ability to reproduce.
The link between race, poverty and asset forfeiture would perhaps be more obvious if it weren’t for the influence on the left of libertarian-derived critiques of asset forfeiture, a version which focuses almost exclusively on civil forfeiture. Libertarian groups such as the Cato Institute and the Charles Koch–funded Institute of Justice oppose civil asset forfeiture because of the threat they say it poses to individual liberty, which for them begins and ends with the right to own private property and the obligation of the state to defend that right. Given this position, one might ask how libertarian critiques of asset forfeiture could possibly ignore a history in which the state has stripped poor people of color of life and liberty. The answer lies in the distinction some libertarians make between criminal and civil asset forfeiture. Unlike criminal asset forfeiture, in which property is seized following a conviction and about which libertarians have no issue, civil asset forfeiture occurs even in the absence of a criminal charge. Thus it should not be a surprise that in 2010 the Institute for Justice would prepare a 123-page study condemning asset forfeiture but never once use the word “race.”2 This is because criminal asset forfeiture disproportionately affects poor people of color, and libertarians have no significant problem with this; however, the more recent rise among law enforcement agencies in the use of civil asset forfeiture now impacts corporations, and a white middle class, and this concerns libertarians.
The language of the libertarian critique of asset forfeiture relies on a familiar vocabulary. Evidence for forfeiture is “tainted.” The agencies who engage in these practices are “unfit.” And the frequency of seizure makes it “compulsory.” The libertarian critique of asset forfeiture comes to us in the register of eugenics, and thus the left’s embrace of this position, or of libertarian critiques of police more generally (see militarization), extends progressives’ long romance with eugenics in the fabrication of “good order” as a racial order.
Notes:
1 See Nellis, Ashley and Jean Chung, “Life Goes On: The Historic Rise in Life Sentences in America,” The Sentencing Project, 2013; and Murakawa, Naomi, The First Civil Right: How Liberals Built Prison America, Oxford University Press, 2014.
2 Williams, M., et al., Policing for Profit: The Abuse of Civil Asset Forfeiture, Institute for Justice, 2010.
Testilying is police slang, first coined by New York City police officers, that describes the common practice among police, often encouraged by prosecutors, of lying under oath, otherwise known as perjury. A 1994 investigation of the New York City Police Department by the Mollen Commission concluded that “in-court deception” was widespread among officers, calling it “the most common form of public corruption facing the criminal justice system.” It is more than merely corruption, however. Testilying is a form of police violence because it is a practice intended to incarcerate people innocent of charges against them.
Testilying most often occurs in drug and gun cases, particularly in areas police call crime-infested neighborhoods. These are cases in which arrests are based overwhelmingly on surveillance or confidential informants, and convictions depend almost entirely on police testimony. In studies of the practice, police have described testilying as an ethical grey area within which they believe they work. For example, a police officer will testify under oath that an arrest was based on information obtained from a confidential informant, when in fact there was no informant and therefore no probable cause for an arrest. Police officers do not consider this perjury, thus the word “testilying.” Their hands are tied, their argument goes, by a criminal justice system unwilling to give them the discretion they need to take “bad guys” off the street.
In other words, testilying is not legal, but police consider it justified when they do it because it gets them around burdensome rules of evidence so that they can “do their job.” Law enforcement officers knowingly engage in an illegal practice as a means to enforce the law. What should we make of this contradiction? One possibility is that it does not constitute a contradiction, but rather perjury, and that the violent incarceration of the defendant that follows, serves the central mandate of police: order. To say that order, and not law, is the central category of police is to say also that the rule of law, from the police perspective, is always a secondary or lesser concern than the mandate of fabricating order through the eradication of threats. In other words, the job of police is not to enforce the law or even necessarily follow the law, but rather to make social order itself.1
Therefore, testilying might in fact be a violation of law, but this doesn’t mean it is in violation of the principles of police. To suggest otherwise is to make the common mistake of assuming that police power first and foremost corresponds to legal accountability. One result of this error is the repeated calls to stop the practice by re-inserting the rule of law alongside administrative police reform. This argument assumes that testilying is a function of institutional incentives to “get the numbers” or “get tough.” But if this reformist argument is accepted, the solutions are largely administrative and legal: simply hold police legally accountable and/or remove the institutional incentive, and cops will no longer lie under oath. Interestingly, this logic validates the police justification of testilying by turning police into the victims of an apparently out-of-control system that either demands too much of them or hinders their ability to successfully carry out their job. It too easily and quickly understands testilying as police corruption instead of a practice that is consistent with the internal logic of police: order at all cost!
When law impedes the imperative for order, police ignore the former in the name of the latter, consistent with their political mandate. As Walter Benjamin argued, the police make their own law precisely because the law recognizes its own failures to compel its subjects to act normatively. When we speak of police discretion to lie under oath in order to take a person’s freedom, we are talking about the same decision-making authority that extends to the police the freedom to take a person’s life. But we are not talking about law or justice when we speak of such things.
Notes:
1 Neocleous, Mark, The Fabrication of Social Order: A Critical Theory of Police Power, Pluto Press, 2000.
Even though the word “cop” is perhaps the most common vernacular synonym for police officer, its origins are unclear. One common explanation is that police officers came to be known as “cops” due to their copper badges or helmets. Another suggests that cop is an acronym for “constable on patrol.” More likely, the word cop comes from the Middle French caper, meaning “to capture,” and from the Latin capere, meaning “to seize, to grasp.” In other words, the police officer might have become popularly known as a “copper” and then “cop” due to the arrest mandate of capturing and seizing people and their property.
This origin story of cop locates coercive power as the defining feature of police. Cops hunt humans and place them in captivity. It is likely that “cop” was developed by members of the dangerous classes as a derogatory name for police, later supplanted with a term like “pig”. Although today this negative connotation has been lost for the most part, the term “cop” is still often considered by police to be insufficiently deferential to their official authority. Hence “officer” is often thought to be more respectful and stately.
The phrase “to cop” also means “to steal.” Thus the word cop contains within it the specter of the criminal, specifically the “thief.” It gains meaning in relation to the transgressive subject, whether this is the suspect or fugitive or criminal. Cops and thieves not only imply each other, but actively resemble each other in ways the conventional wisdom of good guys versus bad guys refuses to acknowledge. And let’s not forget that some of the first iterations of the police officer were called “thief-takers,” or people hired to capture thieves by a process of “taking” to justice the criminal who had illegally taken someone else’s private property. Of course, confiscation tactics and asset forfeiture bring to mind official forms of cop thievery. Cops and crooks, thus, are always intertwined in a dynamic, mutually reinforcing relationship, which is popularly enacted in everything from Hollywood films to the popular children’s game cops and robbers, or to the reality show Cops and its famous theme song: “Bad boys, bad boys, watcha gonna do, watcha gonna do when they come for you?” As Grégoire Chamayou writes, “This is another great cinematic theme: the mirror relationship between the cop and the criminal, the secret affinity of hunter and hunted, who may go so far as to exchange faces.”1 This is not to say that cops are merely criminals in disguise, even if this is true some of the time. As Michael Taussig argues, “The point is that cops and thieves are erotically intertwined and that the thin blue line separating them is more like a veil in a striptease … What should hold us are the curious properties of the distinction uniting the criminal with the policeman, something Nietzsche, for one, made clear when he argued that the police are worse than the criminal because they do the same things, but in the name of Law.”2 This is why cops and police power constitute a much more difficult political problem than the “bad guys” that cops hate so much.
The drama of cops and robbers relies on an ambiguous status between the two figures while at the same time maintaining that there is a valid distinction. This is the political theater of the thin blue line when cops justify their own crossing of the line between good and evil while simultaneously insisting they are still on the good side of it. So even bad cops are first and foremost cops, not criminals, and the bad things cops do in their official capacity are always set in motion by the force of law, something not afforded the thief or the crook. Cops have badges, criminals don’t, and that distinction, or the way that distinction is produced, makes a world of difference. Or we can turn to a memorable scene in West Side Story: “Oh yeah, sure, it’s a free country and I ain’t got the right. But I got a badge. What do you got?”
Notes: