Читать книгу Our Enemies in Blue - Kristian Williams - Страница 8

And the police are simply the hired enemies of this population. They are present to keep the Negro in his place and to protect white business interests, and they have no other function.

—James Baldwin1

In the later nineteenth century, as political machines, industrialization, and the modern police reshaped urban society, politics in the South faced additional complexities in the aftermath of the Civil War. There, many of the trappings of machine politics were present—corruption, abuses of power, favoritism, and street brawls—but with a difference. The status of the newly freed Black population became the political question. The Republican Party, dominant following the war, developed a constituency among Black voters eager to assert themselves, and relied on the occupying Union army to suppress opposition. The Democratic Party aligned itself with disenfranchised Confederate veterans, deposed planters, former slave-owners, and the other reactionary remnants of the status quo ante, including many poor White people ideologically attached to the old order.2 The coercive force of the Democratic Party was embodied in secret terrorist societies and vigilante groups including the Black Cavalry, the Men of Justice, the Young Mens’ Democratic Clubs, the Knights of the White Camellia, and the Ku Klux Klan.3 As the Klan gained a prominence in 1868, it concentrated on discouraging Black voters, intimidating Republican candidates, and defeating proposed radical constitutions.4 But the Klan’s defense of White supremacy quickly expanded beyond such narrow political goals.

Reconstruction and Redemption: Who Won the War?

During Reconstruction, vigilante actions and policing were often indistinguishable. The Klan—which saw itself as a force for order, especially against Black criminality5—took up night-riding, at times in regular patrols. Its members stopped Black people on the roads, searched their homes, seized weapons and valuables, interrogated them about their voting plans, and often brutalized them.6 In many places, the Klan tot­ally regulated the social lives of the Black population, breaking up worship services, opposing the creation of Black schools (often with success), and establishing and enforcing a system of passes for Black workers.7

In less routine actions, White mobs sometimes attacked individual Black people, Black political assemblies, and White Republicans. These attacks often involved the police as participants, or even leaders. For example, in April 1866, after a crowd of African American Union Army veterans prevented the Memphis police from arresting two of their comrades, the cops led White mobs through the streets attacking Black people at random. Mounted squads headed by police rode through Black neighborhoods, beating anyone they found on the streets and setting fire to schools, churches, and homes. The attack lasted four days, until martial law was declared. Forty-six Black and two White people died; ninety-one houses, twelve schools, and four churches were burned.8

That July in New Orleans, the police led a military-style attack against a majority-Black convention of Union loyalists. On July 30, as the delegates gathered at the Mechanics Institute, crowds of White men collected on the streets, many cops and firefighters among them. As a procession of a hundred or so Black delegates approached the Mechanics Institute, a fight broke out. It is disputed what, precisely, led to the fight, but it is generally agreed that a White policeman fired the first shot. The delegates returned fire and hurried into the building. The mob, more than a thousand White people, surged in after them, breaking down doors, firing into the assembly hall, and clubbing those inside.9

A New Orleans Times reporter described the scene following the massacre:

Out of the Senate Chamber, once more in the cross passage, pass through the hall, here is the last step of the main stairway. Blood is on it. The white wall is smeared with blood in the track of what had been a live man’s shoulder leaning up against it. Blood on the next step. Blood marks higher up on the walls, blood and marks of sanguinary struggle from the top to the bottom.… A door opens outward on the stairway leading down into the vaults. The first thing noticed is a bloody handmark, blood-spots line the white walls on the side, and blood spots the steps.… It is with a sensation of sickening horror that you leave all the scenes and respectfully picking your way through cast off hats and shoes that are all over every floor of the building, find yourself in the open street, the sidewalk of which ran with blood.10

With the convention in ruins, the police led bands of White vigilantes around the city, beating any Black people they encountered and shooting at those who fled. The majority of the victims had no connection to the convention. At least thirty-eight people were killed, and many times that number wounded. Overwhelmingly, the victims were Black.11

That afternoon, bodies were piled into baggage cars. Many of the wounded were loaded in with the dead, and witnesses later swore to seeing police systematically shooting those who stirred.12 No one was prosecuted for the massacre, though a Congressional committee concluded that it had been planned by a group of police—mostly Confederate veterans.13 They were assisted by a Know-Nothing group called (appropriately) “the Thugs” and a vigilante regiment named “Hays’ Brigade,” acting under the leadership of police Sergeant Lucien Adams and Sheriff Harry T. Hays, respectively.14

These two examples, especially the Mechanics Institute massacre, illustrate the character of such attacks. As historian Melinda Hennessey explains,

The actions of whites in many of the Reconstruction riots … had less in common with mob rule than with the organized character of paramilitary units.… Antebellum militias and slave patrols gave southern whites experience in local military organization, and this trend continued in the locally based Confederate military units.15

White people adhered not only to the values of the slave system, but to its methods as well.

The central role of the police in these two disturbances was unfortunately typical of the period. In her comprehensive study of Reconstruction-era unrest, Hennessey finds, “In only three riots, including Mobile in 1867, Vicksburg in 1875, and Charleston in 1867, did the police or sheriff try to quell the disturbance, and in a third of the riots, the police or sheriff’s posse led the violence.”16 Examples of police-led violence include the election riots in Savannah in 1868, Baton Rouge in 1870, and Barbour County, Alabama, in 1874.17 Perhaps the starkest case occurred in Camilla, Georgia, where in 1868 Sheriff Munford J. Poore deputized the town’s entire adult White male population to prevent a Black political procession;18 a military investigation found that the sheriff made no effort to control the posse and “was a party to the wanton and unnecessary destruction of life which subsequently ensued.”19

Where legal authorities were not themselves complicit with the terrorists, they found themselves among the terrorized; they were powerless to stop Klan activity, prosecute offenders, protect their own constituents, or, in some cases, defend themselves. For officers sincere in their duties, the situation was desperate. In Warren County, Georgia, Sheriff John C. Norris faced constant harassment for his efforts to enforce the law; eventually he was crippled in a Klan ambush. The weakness of his position might be indicated by the fact that, though he could identify his attackers, he did not press charges.20 The impotence of local authorities was particularly felt in areas where they were dependent on the national government for their power. As the federal authorities became increasingly reluctant to insert themselves—especially militarily—into local affairs, city and county officials were left vulnerable. Sheriff Joseph P. Doyle of Madison County, Alabama, worried, “I have nobody to protect me.”21

When Klan-type violence occurred, arrests were unusual, prosecutions rare, and convictions almost unknown. The attitudes (and sometimes, involvement) of police officers and sheriffs certainly impeded the enforcement of the law, but this was only one of many obstacles standing in the way of convictions. Prosecutors were unwilling to press such cases, and magistrates were often glad to dismiss them. Klansmen frequently dominated juries—including grand juries and coroners’ juries. Witnesses and victims, like Sheriff Norris, were intimidated and refused to testify, while Klan members were eager to swear false alibis on one another’s behalf.22

The law, when it did oppose Klan activity, did so in times and places where the Klan was politically weak. As Allen Trelease notes:

Wherever Union men were numerous and sufficiently well organized to sustain the local authorities … [Arkansas Governor Powell] Clayton encouraged sheriffs to mobilize them as posses, and they were used to good effect. Thus the sheriff of Carroll County managed to quell the small-scale terror there, even if he failed to catch the criminals. In Fulton County, where the governor had to send in reinforcements from other counties and make use of Monk’s Missouri volunteers, the policy contributed to a mutual escalation but was ultimately successful.23

Even then, the usual form of conflict was not open warfare or even vigorous enforcement of the law, but a kind of rivalry or dual power. The police and the Klan became counterbalancing forces rather than outright antagonists. Under such conditions, police may have limited the Klan’s worst atrocities, but they did little to protect Black people from routine abuse and intimidation.24 Likewise, the Klan, while not usually driving the sheriff out of town or making good on their threats against him, limited the scope of his authority and greatly restricted his agenda (especially where the sheriff was a Republican). In Homer, Louisiana, the sheriff gave up policing whole areas of the parish where the Klan was strongest.25 One Texas sheriff found it impossible to raise a posse against Klan activity; White citizens told him derisively to “Call on your nigger friends.”26

But usually, law enforcement agents were unwilling to move against the Klan, even when they were backed by federal military force.27 And they were almost never willing to avail themselves of the one source of power that may have been most readily mobilized against Klan activity—the Black population. Even when faced with widespread lawlessness, White officials proved unwilling to arm and rally their Black constituency.28 It may be that they worried such a move would create a panic among Whites and provoke further violence, or it may be that they feared creating a Black resistance that they could not then control.29 Whatever the reasons, the result was disastrous for African Americans.

As renegade states were reincorporated into the Union and the federal commitment to Reconstruction waned, Black people were returned to something very much like their previous status. When Democrats attained control of state legislatures and local governments, they passed a series of “Black Codes” designed to regulate the former slaves and reconstitute the system of White supremacy—based not on the private institution of slavery, but on publicly established segregation.30 Black people were, whether by law, custom, or Klan intimidation, commonly forbidden to own land, run businesses, work on railroads, change employers, travel, or vote.31 Those convicted of crimes, even nominal offenses such as “vagrancy,”32 could be imprisoned and returned to involuntary servitude, leased to wealthy Whites to work in their fields, factories, or mines.33 This was termed, in the parlance of Southern Whites, “Redemption.” For Black people, it was more like damnation.

Slave Patrols Revisited

During the Reconstruction period, the line between legal and extra-legal authority became extremely hazy. The Klan took on criminal violence in the defense of an archaic view of law and order, and the local authorities were either incapable or unwilling to challenge them. In many cases, the police were actually complicit with Klan violence, and it seemed that the two organizations pursued the same ends, sometimes using the same means. These common features were not arrived at by chance. Both the police and the Klan were adaptations of an earlier and deeply entrenched Southern institution—the slave patrols.34 As Sally Hadden recounts:

In the new regime of Reconstruction, Southern whites were forced to adopt laws and policing methods that appeared racially unbiased, but they relied upon practices derived from slave patrols and their old laws that had traditionally targeted blacks for violence. To resolve this apparent contradiction, the more random and ruthless aspects of slave patrolling passed into the hands of vigilante groups like the Klan.… Meanwhile, policemen in Southern towns continued to carry out those aspects of urban slave patrolling that seemed race-neutral but that in reality were applied selectively. Police saw that nightly curfews and vagrancy laws kept blacks off city streets, just as patrollers had done in the colonial and antebellum eras.35

The slave patrols helped form the character of both the police and the Klan. Like the slave patrols, the Klan was organized locally, operated mostly at night, drew its members from every class of White society, enforced a pass system and curfew, broke up Black social gatherings and meetings, searched homes, seized weapons, and enforced its demands through violence and intimidation.36 A former slave, J.T. Tims, remarked, “There wasn’t no difference between the patrols and the Ku Klux that I know of. If th’d ketch you, they all would whip you.”37

As a part of this same tradition, racial minorities (especially Black people) became the objects of police control,38 the targets of brutality, and the victims of neglect.39 Perhaps the clearest inheritance from this tradition is the racial characterization of criminality—the criminalizing of people of color, and Black people especially. Presently understood in terms of “profiling,” the practice is much older than the current controversy. Under slavery, “Bondsmen could easily be distinguished by their race and thus became easy and immediate targets of racial brutality.”40 The only thing new about racial profiling is the term, which makes prejudicial harassment seem procedural, technical, even scientific.

Profiles and Prejudice

One critic of racial profiling, David Harris, defines the concept in terms of more general police techniques. He writes:

Racial profiling grew out of a law enforcement tactic called criminal profiling.

Criminal profiling has come into increasing use over the last twenty years, not just as a way to solve particular crimes police know about but also as a way to predict who may be involved in as-yet-undiscovered crimes, especially drug offenses. Criminal profiling is designed to help police spot criminals by developing sets of personal and behavioral characteristics associated with particular offenses. By comparing individuals they observe with profiles, officers should have a better basis for deciding which people to treat as suspects. Officers may see no direct evidence of crime, but they can rely on noncriminal but observable characteristics associated with crime to decide whether someone seems suspicious and therefore deserving of greater police scrutiny.

When these characteristics include race or ethnicity as a factor in predicting crimes, criminal profiling can become racial profiling. Racial profiling is a crime-fighting strategy—a government policy that treats African Americans, Latinos, and members of other minority groups as criminal suspects on the assumption that doing so will increase the odds of catching criminals.41

Harris is right that racial profiling is a subset of criminal profiling, but he has the genealogy reversed. As we saw in previous chapters, long before the police used high-discretion tactics and vice laws to regulate the lives of the immigrant working class, their predecessors in law enforcement were using race as the sole factor directing their activities. Harris overlooks a crucial feature of this history: both the slave patrols and the laws they enforced existed for the express purpose of controlling the Black population. There was no pretense of racial neutrality, and so there was less concern with the abstract aim of controlling “crime” than with the very concrete task of controlling Black people. Black people were, in a sense, criminalized—but more importantly, they were permanently deemed objects for control.

As cities industrialized, White workers formed another troublesome group. Efforts to control these new “dangerous classes” were more legalistic and impartial (in form, if not in application) than those directed against the slaves. Laws against vagrancy, gambling, prostitution, loitering, cursing, and drinking (the nineteenth-century equivalent of our current war on drugs) brought the habits of the poor into the jurisdiction of the police, and the police directed their suspicions accordingly. Thus, contrary to Harris’s account, racial profiling gave birth to the broader category of “criminal profiling”—not the other way around.

What may distinguish our contemporary notion of “profiling” from simple prejudice is the idea that suspicious characteristics can somehow be scientifically identified and formulated into a general type in order to rationally direct police suspicions. It is the war on drugs that has most recently popularized profiling, initially because of the work of Florida Highway Patrol officer, and later Volusia County sheriff, Bob Vogel. Vogel formulated a list of “cumulative similarities” that he used in deciding whether to search a vehicle. These included factors like demeanor, discrepancies in the vehicle’s paperwork, over-cautious driving, the model of the car, and the time of the trip. In the mid-1980s, after Vogel made several particularly impressive arrests, the DEA adopted similar techniques in its training of local law enforcement.42

The scientific basis of Vogel’s system is questionable—his “cumulative similarities” were based on a sample of thirty cases—and its application even more worrisome.43 While Vogel claims that race was never a factor in his approach, his deputies’ behavior tells a different story.44 Black people and Latinos represented 5 percent of the drivers on the roads his department patrolled. But according to a review of 148 hours of videotape from cameras mounted in squad cars, minorities made up 70 percent of the people stopped and 80 percent of those searched. Of the 1,100 drivers appearing on the tapes, only nine were issued tickets.45

Likewise, under “Operation Pipeline” the DEA told the police not to consider race as a factor, while continuously referencing the race of suspected drug dealers.46 Pipeline emphasized the use of pretext stops and “consent” searches (that is, searches lacking probable cause).47 The results were predictable. According to a 1999 report by the California legislature’s Task Force on Government Oversight, two-thirds of those stopped as part of Operation Pipeline were Latinos. The report noted the systematic nature of this bias:

It should be emphasized that this program has been conducted with the support of CHP [California Highway Patrol] management. Individual officers involved in these operations and training programs have been carrying out what they perceived to be the policy of the CHP, the Department of Justice, and the Deukmejian and Wilson Administrations. Thus we are not faced with “rogue” officers or individual, isolated instances of wrongdoing. The officers involved in these operations have been told repeatedly by their supervisors that they were doing their jobs exactly right.48

By 2000, the DEA had trained over 25,000 cops working for more than 300 agencies in forty-eight states.49

The Flawed Logic of Racial Profiling

The theoretical groundwork for racial profiling was in place long before the DEA popularized its current form. Writing in the middle of the twentieth century, LAPD Chief of Police William H. Parker defended the police saturation of minority neighborhoods. His views anticipate those supporting the use of other race-based police tactics. They are worth quoting at length:

Deployment is often heaviest in so-called minority sections of the city. The reason is statistical—it is a fact that certain racial groups, at the present time, commit a disproportionate share of the total crime. Let me make one point clear in that regard—a competent police administrator is fully aware of the multiple conditions which create this problem. There is no inherent physical or mental weakness in any racial stock which tends its [sic] toward crime. But—and this is a “but” which must be borne constantly in mind—police field deployment is not social agency activity. In deploying to suppress crime, we are not interested in why a certain group tends toward crime, we are interested in maintaining order. The fact that the group would not be a crime problem under different socio-economic conditions and might not be a crime problem tomorrow, does not alter today’s tactical necessities. Police deployment is concerned with effect, not cause.…

At the present time, race, color, and creed are useful statistical and tactical devices. So are age groupings, sex, and employment. If persons of one occupation, for some reason, commit more theft than average, then increased police attention is given to persons of that occupation. Discrimination is not a factor there. If persons of Mexican, Negro, or Anglo-Saxon ancestry, for some reason, contribute heavily to other forms of crime, police deployment must take that into account. From an ethnological point of view, Negro, Mexican, and Anglo-Saxon are unscientific breakdowns; they are a fiction. From a police point of view, they are a useful fiction and should be used as long as they remain useful.

The demand that the police cease to consider race, color, and creed is an unrealistic demand. Identification is a police tool, not a police attitude. If traffic violations run heavily in favor of lavender colored automobiles, you may be certain, whatever the sociological reasons for that condition, we would give lavender automobiles more than average attention. And if these vehicles were predominantly found in one area of the city, we would give that area more than average attention.50

These remarks clearly outline the logic of racial profiling, and reflect the flaws of such logic. Parker tries to deny police bias by relocating it from the individual to the institutional level; he then defends institutional bias by denying individual prejudice. He also attempts to justify institutionalized racism by casting it in “statistical” terms. Hence, we’re reassured that race-based police tactics are not based on “a police attitude” or on a belief in the inherent criminality of people of color, while at the same time we are urged to accept practices designed to target specific populations.

Parker explains unequal police attention with reference to variations in crime rates among different groups. No evidence is offered concerning these variations, but they are said to be the product of unidentified “multiple conditions,” which we are informed are not the business of the police. The possibility that policing may preserve or contribute to these “socio-economic conditions” is not discussed, though the function of policing is identified as “maintaining order.”

Put differently, Parker tries to justify the police department’s discrimination with reference to other discrimination. If this line of reasoning is accepted, then so long as an overall system of White supremacy exists, no particular aspect of it can be faulted. Landlords could justify discrimination in housing, or bankers in lending, just by noting that “the reason is statistical,” that “for some reason” unemployment is higher among “certain racial groups.” Employers could justify discrimination in hiring by explaining that, statistically speaking, certain groups tend to be less qualified. And so on. The moral and political faults of such reasoning are obvious, but there is a logical fallacy as well. An individual’s ability to pay the rent, to perform a job, or to obey the law, cannot be judged on the basis of the statistical performance of a group to which she belongs.51

In the end, Parker’s argument is circular; the premises assume the conclusion. It calls for intensive scrutiny of people of color based on a “disproportionate share of the total crime” committed by them. And how do we know they commit more crimes? Because of their contact with the criminal justice system, obviously!52 David Harris explains the problem simply:

In the case of consensual crimes such as drug activity and weapons offenses, arrest and incarceration rates are particularly poor measures of criminal activity. They are much better measures of law enforcement activity.… Arrest statistics tell us that police arrest disproportionate numbers of African American males for drug crimes. This reflects decisions made by someone in the police department—the chief, lieutenants, street-level supervisors, or even individual officers themselves—to concentrate enforcement activity on these individuals.53

While admitting that the very categories of race are “unscientific” and “a fiction,” Parker argues that race is a “useful fiction” and so should be maintained. But we should ask, useful for what? Presumably for identifying criminals, or rather—for identifying suspects. That is, race is a “useful fiction” for delineating groups of people to be treated as suspects by the police.

The analogy to the color of the car implies that the use of race as an indicator is something of an accident. Of course, it is nothing of the sort.54 It is more paradigmatic than fortuitous, a matter of design rather than happenstance. Race—unlike car color—is used as a profiling tool because society as a whole uses race as a marker of privilege or privation. And according to Parker’s theory, race-based tactics are useful in crime control for just that reason.

Color by Numbers

Today’s law enforcement administrators still seek to justify police practices by appealing to racist conceptions of crime and criminality. In 1999, the New Jersey Attorney General’s office issued a report showing that during the two previous years (1997 and 1998), 40 percent of motorists stopped on the New Jersey Turnpike and 80 percent of those searched were minorities. According to Carl Williams, the superintendent of the New Jersey state police, that’s because “The drug problem is mostly cocaine and marijuana. It is most likely a minority group that’s involved with that.”55

Studies in other states reveal a common pattern. Following a 1995 lawsuit, the Maryland State Police were required to keep data on every traffic stop that led to a search. Temple University’s John Lamberth analyzed the data from 1995 and 1996. He found that while Black people represent 17 percent of Maryland’s driving population and can be observed to drive no differently than White people, 72 percent of those stopped and searched were Black. Fully one-half of the Maryland State Police traffic officers stopped Black people in at least 80 percent of their stops. One officer stopped Blacks in 95 percent of his stops, and two only stopped Black people.56

Likewise, a 1999 Ohio state legislator’s review of 1996 and 1997 court records revealed that Black drivers in Akron were 2.04 times as likely as all other drivers to receive tickets. In Toledo, they were 2.02 times as likely; and in Columbus and Dayton, 1.8 times.57 Researchers with North Carolina State University found that in 1998, Black people were 68 percent more likely than White people to be searched by the North Carolina Highway Patrol.58 The Boston Globe analyzed 764,065 traffic tickets from the period April 2001 to November 2002 and found that Black people and Latinos were ticketed at a rate twice that of their portion of the Massachusetts population. And once ticketed, Blacks were 50 percent more likely than Whites to have their cars searched.59 The LAPD’s statistics from July to November 2002 show that Black motorists were stopped at rates far outstripping their portion of the local population: 18 percent of the drivers pulled over were Black, while Black people make up only 10.9 percent of the city’s populace. Of those pulled over, Black people and Latinos were significantly more likely to be removed from the car than were White drivers: 22 percent of Black people and 22 percent of Latinos were removed from the vehicle, as opposed to 7 percent of White people. And once out of their cars, Blacks and Latinos were more likely to be searched: 85 percent of Black people and 84 percent of Latinos were searched, as compared to 71 percent of White people.60

In Omaha, Nebraska, during the year 2011, Blacks represented 21.6 percent of traffic stops, but only 12.2 percent of the local population. They were almost three times as likely to be searched as Whites (2 percent of Black stops, as opposed to 0.7 percent of White). In Lincoln, Blacks were 3.3 percent of the population, but 7.7 percent of the drivers stopped by police; and they were searched more than twice as often as Whites (3.5 and 1.7 percent, respectively). Hispanics in Lincoln were not particularly likely to be pulled over (5 percent of population, 4.6 percent of traffic stops), but they were searched with disproportionate frequency (2.7 percent, Hispanic drivers; 1.7 percent, White drivers). The Nebraska State Patrol (NSP) pulled over Blacks and Hispanics at rates below their share of the population, but searched both groups more frequently than Whites (1.4 percent for Black and Hispanic drivers; 0.8 percent for White drivers).61

Interestingly, Native Americans were stopped below their population level in Omaha and Lincoln, and above it in State Patrol stops (1.1 percent of stops; 0.8 percent of state population), but all three agencies searched them at much higher rates than any other group. Native Americans were searched by the NSP 2.9 percent of the time (almost twice the rate of Blacks and Hispanics, and more than three times the rate of Whites). They were searched by police in Omaha in 4.2 percent of traffic stops (more than twice the rate of Blacks, and six times the rate of Whites). And they were searched by the Lincoln police in an astonishing 7.1 percent of stops (twice as often as Blacks, more than two-and-a-half times as often as Hispanics, and more than four times as often was Whites). Similar disparities were apparent in the arrests that sometimes follow from traffic stops. The State Patrol arrested 1.8 percent of the White drivers they stopped, 3.7 percent of Hispanics, 4 percent of African Americans, and 5.7 percent of Native Americans. The Lincoln police arrested 0.8 percent of Whites, 2.1 percent of Hispanics, 4.1 percent of Blacks, and 9.7 percent of Native Americans. The handcuff-happy Omaha police, meanwhile, arrested 11.9 percent of Whites, 23.9 percent of Hispanics, 29.8 percent of Blacks, and 31.4 percent of the Native American drivers they stopped.62

Nationally, the most recent Justice Department study found that in 2011, “Relatively more black drivers (13%) than white (10%) and Hispanic (10%) drivers were pulled over,”63 and Blacks (7 percent) and Hispanics (6 percent) were ticketed at a higher rate than whites (5 percent). More telling, cops were also twice as likely to end the stop without taking further action—writing a ticket, or even issuing a warning—if the driver was Black (2 percent) than if he or she was White or Hispanic (1 percent each), suggesting that Blacks are more subject to arbitrary pretext stops. Likewise, while police only searched 2 percent of White drivers, they searched 6 percent of Blacks and 7 percent of Hispanics.64

The studies show that people of color are more likely than White people to be pulled over, removed from the car, and searched. But they reveal something else as well: Race is useless as an indicator of criminality. While Blacks and Latinos accounted for 78 percent of those searched at the south end of the New Jersey Turnpike during the year 2000, evidence was more reliably found by searching White people: 25 percent of White people searched had contraband, as compared to 13 percent of Black people and 5 percent of Latinos. According to the North Carolina study, 26 percent of those Black people searched and 33 percent of the White people searched were found to possess contraband.65 In Massachusetts, 16 percent of White people searched were found to possess drugs, as compared to 12 percent of Black people and 10 percent of Latinos.66

In Portland, in 2011, African Americans were the subject of 11.8 percent of all traffic stops and 19.5 percent of all pedestrian stops, though they are only 6.3 percent of the local population. They were searched in 12.6 percent of these stops, which is 3.7 times the rate at which White people were searched. Latinos were stopped at a rate below their portion of the population (6.2 percent of traffic and 6 percent of pedestrian stops, as opposed to 9.2 percent of the census total), but they were searched 8 percent of the time (2.7 times the White rate). Again, police were more likely to find contraband on Whites (42.7 percent of searches) than Blacks (30.5 percent) or Latinos (29.8 percent).67

Crackdown in Seattle

Of course, these biases aren’t limited to traffic and pedestrian stops. In her study of drug arrests in Seattle over a four-month period in 2005 and 2006, University of Washington sociologist Katherine Beckett found that, though Blacks represent only 8 percent of the city’s population, they make up 67 percent of drug arrests. This placed the arrest rate (per 100,000 population) for Blacks at 13.6 times that of Whites, and the arrest rate for selling drugs at 21 times that for whites.68 Even adjusting for different patterns of consuming and distributing narcotics, the disparity remains: Depending on the source, empirical studies suggest that Blacks represent between 11 and 28 percent of Seattle’s drug consumers and between 14 and 28 percent of the city’s drug dealers.69 Direct observation of outdoor drug markets in the Downtown and Capital Hill areas support these estimates: African Americans were 33.3 percent of sellers observed Downtown and 9.1 percent in Capitol Hill, but represented 85.3 and 27.2 percent of arrests in these areas, respectively. In other words, Blacks delivering drugs in Capital Hill were 3.9 times more likely to be arrested, and those Downtown were 13.6 times more likely than “whites engaged in the same behavior in the same geographic area” during the same period of time.70

Beckett’s study considers, tests, and eliminates a variety of possible explanations for the disparity, including different rates of drug use and participation in the drug economy, higher arrest rates for outdoor sales, the geographic concentration of enforcement activity in the Downtown area, and the police focus on crack cocaine.71 Of these, only crack was a statistically significant factor. Of all the city’s drug arrests, 72.9 percent were for crack, and 73.4 percent of those arrested for crack were African American.72 Thus, if one recalculates leaving out crack-related arrests, the Black rate drops from 21 times the White rate to a more modest 2.8.73 This correlation offers some support to the idea that the excessive focus on crack is driving the disproportionate arrest rate.

But then the question arises, why the focus on crack? Looking at data concerning the frequency of crack sales, calls to police reporting drug dealers, public health considerations, and gun violence, Beckett could find no rational reason for the crack obsession.74 She concludes: “Although colorblind on its face, the focus on crack cocaine does not appear to be a function of race-neutral considerations, and continues to produce an extraordinarily high degree of racial disparity in Seattle drug arrests.” She also notes that “it is not possible” to rule out the theory that “the SPD’s focus on black suspects explains the preponderance of crack cocaine arrests,” rather than the other way around.75 In fact, even just looking at crack cases, Blacks are still over-represented, making up 72.9 percent of arrests but (according to drug user surveys) 49.4 percent of dealers.76

Whichever comes first—the focus on Blacks or the focus on crack—it amounts to much the same thing. The result is a disproportionate number of African Americans in police custody. And the impulse behind each approach turns out to be a racist one. In an earlier study, looking at arrests from 1999 to 2001, Beckett drew a sharp conclusion: “the focus on crack,” like the overrepresentation of people of color among those arrested, “reflect[s] a racialized conception of ‘the drug problem.’” The obsession with “the drug most strongly associated with ‘blackness’ suggests that law enforcement policies and practices are predicated on the assumption that the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.’”77 A kind of double profiling takes place. By virtue of their association, the drug is racialized and Blacks are criminalized.

Stop and Frisk: Racial Profiling on Trial

On April 20, 2007, as David Floyd was walking home, three New York police officers approached and asked, “Excuse me, may I speak with you?” Floyd stopped, and the officers demanded to see his ID. He gave it to them, and then, though he explicitly told them he did not consent to a search, they patted him down and looked in his pockets. Finding nothing of interest, they gave him back his driver’s license, warned him to get it updated, and left.78 On the spectrum of police encounters, this incident hardly registers. It was completely banal, entirely routine, the sort of thing that happens all of the time—which is precisely the point.

Between January 2004 and July 2012, the New York City police made 4.4 million stops just like David Floyd’s. In 52 percent of those stops, they frisked the subject; 8 percent of those 2.3 million searches were more extensive—opening jackets, looking in pockets. Eighty-six percent of searches, like Floyd’s, produced no contraband. Also like David Floyd, 52 percent of the people stopped were Black.79

That’s more than twice the African American portion of the local population (23 percent). Altogether, 90 percent of those stopped were people of color. (Hispanics, at 31 percent, were the second-largest group; New York City’s population is 29 percent Hispanic.) Weapons—which are nominally the point of this exercise—were discovered in just 1.5 percent of searches. And as we’ve seen elsewhere, they were more often found on Whites: 1.4 percent of Whites had weapons, while 1.1 percent of Hispanics and 1 percent of Blacks did. Whites were more likely to be carrying drugs or other contraband as well: 2.3 percent, compared to 1.8 percent of Blacks and 1.7 percent of Hispanics. On the other hand, police report using force more often against people of color: in 24 percent of Hispanic stops, 23 percent of Black stops, and 17 percent of White stops. Put differently, Blacks were 30 percent more likely than Whites to have force used against them, and Hispanics were 9 percent more likely.80

Six percent of these stops led to arrest, and another 6 percent led to citations.81 The arrest and citation rates were actually 8 percent lower for Blacks than for Whites (and lower still in majority-Black neighborhoods), suggesting (as a court later found) “that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.”82 However, when accused of the same offenses, Blacks were 30 percent more likely than Whites to be arrested rather than cited.83 The most common charges were public consumption of alcohol and disorderly conduct (both violations, the legal equivalent of a parking ticket), and 42 percent of the citations were later dismissed.84

The most common cause for arrest was possession of marijuana, which is troubling for separate reasons: Marijuana has been decriminalized in New York; simple possession is treated as a violation unless it is in public view. In many of these cases, the “public view” only occurred because of the search. Police order a suspect to empty his pockets, the joint that was in his jacket is now in his hand, and a violation-level charge becomes a misdemeanor. The search, in other words, literally produces the crime.85

David Floyd, along with eleven other people—all Blacks and Hispanics—sued. They argued that in nineteen separate incidents they had been unfairly targeted because of their race and searched without any legal justification, thus violating their rights under the Fourth and Fourteenth Amendments to the U.S. Constitution.86

In the spring of 2013, over the course of a nine-week trial, the City of New York and the New York Police Department tried to defend their “stop and frisk” policy. They argued that the focus on Blacks and Hispanics was justified because “blacks and Hispanics account for a disproportionate share of … crime perpetrators.”87 One of the City’s expert witnesses testified:

Obviously, if particular racial or ethnic groups in New York participate in crime at a rate disproportionate to their share of the population, we would expect officers to conduct … stops for such groups at rates higher than each group’s respective share of the City’s population.88

The judge, Shira Scheindlin, was unsparing in her assessment of the City’s case:

The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population. But this reasoning is flawed because the stopped population is overwhelmingly innocent—not criminal.… [T]here is no basis for assuming that the racial distribution of stopped pedestrians will resemble the racial distribution of the local criminal population if the people stopped are not criminals.…

If the police are stopping people in a race-neutral way, the racial composition of the innocent people stopped should more or less mirror the racial composition of the areas where they are stopped, all things being equal.89

She goes on to argue that even if one demographic group or another is more involved with criminal activity, it in no way follows that innocent people from the same group are more likely to behave suspiciously, giving police grounds to stop them. The use of race as a proxy, it seems, has been substituted for the legal standard of reasonable suspicion and led the police to search for suspects “from the pool of non-criminals not exhibiting suspicious behavior”90—which is, very nearly, the definition of racial profiling. As Judge Scheindlin explains, “To say that black people in general are somehow more suspicious-looking, or criminal in appearance, than white people is not a race-neutral explanation for racial disparities in NYPD stops: it is itself a racially biased explanation.” In other words, “Rather than a defense against the charge of racial profiling, … this reasoning is a defense of racial profiling.”91

Judge Scheindlin ruled that nine of the nineteen stops discussed in court were unconstitutional and, of the remaining ten, five involved unconstitutional searches.92 Moreover, she found that, at an absolute minimum, the police had engaged in 200,000 stops that fail the test of constitutionality.93 She blamed police leaders for their “deliberate indifference” to the rights of minorities, noted the pressure they put on their subordinates to aggressively stop and search people of color, and pointed to shortcomings in record-keeping, supervision, training, and discipline.94 She did not, however, order an end to the stop-and-frisk per se, but only prescribed policy reforms and increased monitoring to change how it is done.95 Such half-measures may reduce the scale of the practice, but they will not stop the police from viewing people of color with suspicion, arbitrarily stopping them, rifling through their pockets, arresting them—and worse.

Consequences of Profiling

On February 4, 1999, a twenty-two-year-old West African immigrant named Amadou Diallo was killed by New York City police officers while standing in front of his own home. Four cops—Sean Carrol, Edward McMellon, Kenneth Boss, and Richard Murphy—fired a total of ­forty-one shots. Nineteen hit him. Diallo was unarmed, and had committed no crime.96 He was simply in the wrong place at the wrong time, and Black.

Stephen Worth, a lawyer for the Patrolman’s Benevolent Association, explained the shooting: “He is acting strange, he fits the rapist’s description in a generic way.… The reason they are shooting him is they think he has a gun.”97 Worth refused to elaborate on Diallo’s “strange” behavior, the “description” he matched, or why the police would think he was armed. But witnesses later helped to fit the shooting into a broader pattern; they told the Village Voice that earlier in the evening the same officers—members of the elite Street Crimes Unit—were stopping and searching numerous Black men, seemingly at random. Such behavior fit the unit’s established modus operandi. In 1997 and 1998 the Street Crimes Unit stopped and searched 45,000 men, mostly Blacks and Latinos; it made 9,000 arrests.98

Amadou Diallo was not a criminal. He was not, in any real sense, a suspect. He matched a “generic” description. He fit the profile. He was a young Black man, and that was enough. He became, quite literally, a target. The police gunned him down as he stood in his doorway. They fired forty-one shots.

Diallo’s shooting represents only one cost of racial profiling—the losses calculated in terms of bodies, bullet holes, scars, and stitches. But there are other victims, other costs, counted in years, marked off in cell blocks, ringed with razor wire.99 Race-based policing contributes to the overrepresentation of minorities (especially Black people) at every stage of the criminal legal process. Statistics from mid-sized cities across the country show startling disparities in the drug arrest rates for Whites and Blacks.

If we look specifically at the rates for drug sales (excluding marijuana), the gap is even more striking:

Arrest leads to court, and court leads to prison, and the disparities continue at each step.102 According to the Bureau of Justice Statistics, at the end of 2010 there were 2,226,832 people in jail or prison in the United States, another 4,887,900 on probation or parole—for a total of 7.1 million in some way under the supervision of the correctional authorities. That means that 3 percent of adults were under correctional supervision, including 1 in 48 on probation or parole and 1 in 104 in jail or prison. Put differently: almost 1 percent of the adult population is behind bars (962 per 100,000).103 Of those, in 2010, Blacks were 13 percent of the national population but 40 percent of the prison population; Hispanics were 16 percent of the U.S. population and 19 percent in prison; and Whites were 64 percent nationally, but only 39 percent carcerally.104 For every 100,000 Black women in the U.S., 260 were in prison; for every 100,000 Latina women, 133; for White women, 91. More startling still, for every 100,000 Black men, 4,347 were in prison; for Latino men, 1,775; for White men, 678.105 Doing the math, we see that Black women are almost three times as likely to go to prison as White women (2.8): Latina women are almost half again as likely (1.45). Black men are 6.4 times as likely to be imprisoned as White men, and Hispanic men nearly three times as likely (2.6). By some estimates, one in every three Black men will go to jail at some point in his life.106

Taken together, the numbers on police stops, searches, arrests, and incarceration, show a persistent bias in the criminal legal system, one neither explained nor justified by any considerations related to crime. The evidence absolutely contradicts the idea that racial profiling is useful in getting drugs, or guns, or criminals, off the streets. If we insist on viewing the police as crime-fighters, profiling can only be seen as a mistake, a persistent disaster. But if we suspend or surrender this noble view of police work, and look instead at the actual consequences of what the cops do, profiling does make a certain kind of sense; it follows a sinister logic. Racial profiling is not about crime at all; it’s about controlling people of color.

Racial profiling doesn’t only label certain groups as the objects of official control, it also limits the mobility of people of color, and thus restricts their access to resources and opportunities. Harris notes:

It may cause many people of color to plan their driving and travel routes in certain ways, to take (or not take) particular jobs.… They may simply stay out of places and neighborhoods where they will “stand out”—where police may feel they don’t “belong”.… [And thus,] these tactics help to reinforce existing segregation in housing and employment.107

Race-based policing, and especially the fear of Black criminality, has a more subtle function as well—maintaining the ideological basis of White unity and indirectly controlling the political allegiances of White people. While people of color are the targets of racial profiling, there are actually two audiences. Profiling serves to humiliate and threaten those who are targeted; even when it does not lead to criminal sanctioning, it serves as a not-very-subtle reminder of their “place.” And it helps to align White people with the power structure by convincing them that the state protects them from purportedly criminal people of color.108

In all these respects, police and prisons have replaced patrols and plantations as the means by which White society maintains its dominance over Black people.109

Racial Lines, National Borders

Of course the racial politics of policing are not simply Black and White. Over the last two decades immigration, like crime, has increasingly served as a coded proxy for race, a way of talking about it without saying it. Immigration enforcement, then, has operated as an ostensibly color-blind means of maintaining White supremacy, which has directed police attention toward those groups with a sizeable proportion of immigrants—the Latino community most of all.110

Until the mid-1990s immigration was treated as a strictly federal matter. Aside from notifying the Immigration and Naturalization Service when taking foreign nationals into custody, local and state police had little role to play in enforcement. In the last two decades, and especially since the terrorist attacks of September 11, 2001, local cops have increasingly been enlisted—sometimes eagerly, sometimes over their objections—to enforce immigration law.111 The new police duties came as a result of several major shifts occurring simultaneously, or in quick succession. Border enforcement has been increasingly militarized, incorporating the use of helicopters and drones, and sometimes involving marines and Army Special Forces.112 At the same time many immigration violations, which had previously been treated as administrative or civil matters, have now been criminalized; and the remaining administrative elements have become increasingly punitive.113 Enforcement has also come to focus more and more on the interior of the country, in cities and farm towns far from the border.114

The implications for civil liberties have been serious, and bad: Because immigration has historically been an administrative and civil (rather than criminal) matter, it has weaker safeguards and suspects enjoy fewer rights. For example, the courts have been more flexible in search and seizure requirements and often allow illegally obtained evidence to be presented in deportation hearings; Homeland Security’s Immigration and Customs Enforcement (ICE) has thus been aggressive in testing the limits of the Fourth Amendment, a habit that police will likely carry with them into criminal investigations as well. Police may also take advantage of the lower standards and decide to treat immigration enforcement as a cover for criminal investigations, using ICE databases, civil warrants, and immigration holds for other purposes.115

Police involvement began in earnest in 2002, when Florida entered into an agreement with the federal authorities under which local cops would be trained and deputized as immigration officers. Such arrangements had been authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, but the provision, section 287(g), had never been used before. Soon others followed suit—Alabama in 2003, six more jurisdictions over the next three years; by 2013, thirty-five agencies in eighteen states had some 287(g) agreement.116 At the same time, other federally-driven programs, such as the Criminal Alien Program and Secure Communities, have greatly increased the flow of information between agencies. When local police make an arrest, they now run the suspect’s fingerprints, not only through federal criminal databases, but immigration databases as well.117 In the first year of the Secure Communities program’s implementation in California, it resulted in 19,109 deportations, 25 percent of which occurred without a conviction.118

All of that has meant a great deal more scrutiny on the Latino community, including checkpoints, neighborhood sweeps, and workplace raids—as well as armed vigilante patrols along the U.S./Mexico border.119 Undoubtedly the man who has personified the worst of these practices—or, as he would have it, the “toughest”—is Sheriff Joe Arpaio of Maricopa County, Arizona. Arpaio, who has served as sheriff since 1993, has always courted controversy and regularly shrugged off concerns about constitutionality. He first came to national notice when he erected an outdoor tent city to hold the county’s prisoners and subjected them to a host of petty deprivations—no cigarettes, no coffee, no movies, no pornography, no hot lunches, no salt. He instituted chain gangs (even for juvenile offenders), dressed inmates in cartoonish black-and-white striped uniforms, and outfitted everything in the men’s prisons—towels, sheets, underwear, handcuffs—in ­Pepto-Bismol pink.120 (Ostensibly the pink was to deter theft, but Arpaio admits “there was the matter of embarrassing the prisoners.”)121 His jail guards, meanwhile, gained a reputation for strapping inmates into restraint chairs and torturing them with tasers.122

Beginning in 2006, Sheriff Joe (as he likes to be called) turned his attention to immigration. He started arresting immigrants as co-conspirators in human trafficking. He led deputies, as well as his 3,000-strong volunteer posse, on raids of workplaces looking for undocumented immigrants—including an after-hours raid to arrest the cleaning staff at the Mesa City Hall. It’s always the staff, too; in only three cases has he arrested their White employers. And in the City Hall case, the workers turned out to be legal residents. Sometimes his raids target entire towns, as when deputies besieged the hamlet of Guadalupe with mounted patrols, a mobile command center, and helicopter coverage for two days in 2008.123

A 2012 Justice Department investigation found that in Maricopa County “Latino drivers were between four to nine times more likely to be stopped than similarly situated non-Latino drivers,” with 20 percent of traffic stops failing to meet the legal standard of reasonable suspicion. It represented, in the estimation of one consultant, “the most egregious racial profiling in the United States.”124 The Justice Department also expressed concern about the “pervasive culture of discriminatory bias” in the sheriff’s office, including not just racial profiling, but racial slurs and racist jokes.125

Phoenix Mayor Phil Gordon was blunt in expressing his views on Arpaio:

The sheriff’s method is to profile people with brown skin and to ignore the civil rights we should all be enjoying. It is unconstitutional and wrong.… Citizens are being stopped because they are brown. Immigrants here quite legally, carrying their paperwork, are detained.… These stories have nothing to do with green cards. They have everything to do with brown skin. They were about racism and nothing else.126

Of course, it’s not just Arpaio.127 Police across Arizona search Blacks and Latinos more than twice as often as Whites, and search Native Americans three times as often. Likewise, in 2006, two thirds of the law enforcement agencies in Texas reported searching the vehicles of Latino drivers at a higher rate than those of Whites; more than a quarter searched Latinos at twice the rate of Whites.128 Racial profiling—blessed by the Supreme Court129—is an inevitable result of proactive immigrant-hunting. As Nancy Morawetz and Alina Das observed, writing for the Police Foundation:

Local officers will not be able to “observe” an immigration violation the way they might observe a violation of criminal law. Under such circumstances, there is a serious risk that the grounds for suspicion will in fact be nothing more than a series of assumptions that begin with a profile about people who speak another language or have a particular racial or ethnic profile.… Such tactics may well be ingrained in certain federal immigration enforcement efforts.130

Raymond Dolourtch, a St. Louis attorney, describes a pattern he has seen in recent cases: Police pull over Latino drivers, usually on some pretext. Since undocumented immigrants cannot apply for a driver’s license, they will be arrested for operating a vehicle without one. In jail, then, police will run their prints and check their status—leading to criminal charges or deportation.131 In towns like Waukegan, Illinois and Rogers, Arkansas, police set up checkpoints for the same purpose.132 Obviously traffic safety is just a pretext in these operations, a seemingly race-neutral rationale for rounding up members of a target population. But then, some Rogers cops have dispensed with the pretext altogether, asking people directly about their status without making an arrest.133 Likewise, in Irving, Texas, once the jail started reporting to ICE, the police began arresting greater numbers of Hispanics for low-level public order offenses.134

The Department of Homeland Security (which manages both Immigration and Customs Enforcement and Customs and Border Protection) captured 517,000 foreign nationals in 2010, 83 percent from Mexico. Of those half-million visitors, 363,000 were held in jail while waiting for a hearing.135 That same year, 29,016 were charged with immigration violations in federal court (twelve times the 1994 level, 2,453);136 and immigration violations accounted for 12 percent of the federal prison population—approximately 260,000 people.137 Additionally, 387,000 immigrants were deported under a judicial order, and another 476,000 were “returned” without a hearing.138

The result is that immigrants are increasingly isolated, fearful, and powerless.139 That is likely part of the point. As Christian Parenti argues, American capitalism needs a steady supply of immigrant labor, but it needs it cheap. By criminalizing the workers, the state helps to keep them uncertain, uneasy, disorganized, and docile. The attack on immigrants, therefore, is both “[p]olitically…an organic expression of nativist hostility and a very useful, rational system of elite-inspired class control”—“the primary product” of which “is … fear.”140