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Up with Chris Hayes, 10/30/2011
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The law was once a guarantor of a common set of
rules for all, but over the past 4 decades, the
principle of equality before the law has been
effectively abolished, replaced by a two-tiered system
of justice
 The two-tiered justice system vests political and
financial elites with immunity even for egregious
crimes while subjecting ordinary Americans to the
world’s largest and most merciless penal state

 e.g., War on Drugs, heightened immigration enforcement and
border security, heightened government surveillance and
secrecy in the name of the War on Terror
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
Race? Ethnicity?
Power? Wealth? Connections?

Greenwald suggests it’s about power

 There’s an elite-mass dichotomy
 Political and corporate elites have become exempt
from the rule of law in the United States
▪ And this elite immunity is justified on the basis of the
common good, ‘the system,’ ‘the institution,’ etc.
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
US has 5% of world population but 25% of its prison population

The New Jim Crow: Mass Incarceration in the Age of
Colorblindness (M. Alexander, 2010) and Slavery by Another
Name (D. Blackmon, 2008) argue mass incarceration of blacks
is parallel to enslavement and peonage laws


1 in 31 adults in US now in prison/jail or on probation/parole
Correctional control rates are stratified by gender, race &
geography (Pew Center on the States, “1 in 31,” 2008):
 1 in 18 men (5.5%) vs 1 in 89 women (1.1%)
 1 in 11 black adults (9.2%); 1 in 27 Hispanic adults (3.7%);1 in 45 white adults (2.2 %)
 Rates even higher in some neighborhoods: in one block-group of Detroit’s East Side,
for example, 1 in 7 adult men (14.3%) is under correctional control
 Georgia, where it’s 1 in 13 adults, leads the top 5 states that also include Idaho, Texas,
Massachusetts, Ohio and the District of Columbia
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Ch. 45, Jim Leitzel (2001)
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
Aggressive “quality of life” policing may be partly
responsible for both drop in crime and
improvements in public spaces since the 1990s –
but successes are tarnished by ongoing
controversy concerning the role of race in policing
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
Even if all abuses associated with race-based
policing could somehow be eliminated, racial
profiling would remain a bad idea

Race-based policing is counterproductive: it
leads to more crime, not less
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



Racial disparities in policing exist – since race is
used as one of the indicators in criminal profiling
In private behavior, our actions are often based
on group reputation - but good cops should not
behave as good private citizens do
Police should, in general, not use race as a basis
for deciding whom to watch, or after a crime,
whom to question or arrest on grounds of
suspicion
As in many other policy areas, the best longterm approach to crime control appears
counterproductive in short run
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Effective crime control in a democracy requires voluntary
cooperation between police & citizenry
 Volunteer cooperation requires trust
 Race-based policing undermines trust
 Reduced trust means lessened deterrence of crime, as
minorities become unwilling to report crime

 1/2 of serious crime in US is not reported
 Minority-police hostility creates unwillingness to testify at trials
and to convict defendants when serving on juries

Lack of cooperation brought on by racial disparities in
policing reduces criminal deterrence
 Also provides positive inducements to disobey law, prevents
well-behaving minority youths from distinguishing selves from
criminals, reducing incentive to be law-abiding
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

The problem isn’t “bad” or “racist” cops in an
otherwise workable system
“Pool of hostility” and generalized mistrust have
been created by long-term numerous
interactions b/w police & citizenry
 even “respectful” individual encounters are just a drop
in the bucket
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

Race-based policing may lead to parallel
stereotyping of the police as insensitive to
concerns of minorities, or as racist
Good and honest cops suffer the
consequences of generalized mistrust
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
Unconstrained individual incentives do not serve
society’s interests w/respect to public goods
 Taxes, therefore, are not voluntary


Citizen hostility toward police is a “public bad,”
and individual officers acting rationally, will
supply too much of it in the aggregate
Unconstrained individual incentives do not serve
society’s interests w/respect to “public bads”
either
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
But rejection of race-based policing will not
immediately reduce mistrust b/w police &
minority communities
 It’s built up over a long time
 Reducing “sea of hostility” will take time
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
“True racial profiling,” in which people are
targeted solely because of race or ethnicity, is
both illegal and immoral
destroys public trust
reduces police effectiveness

When officers follow leads and stop people,
they do use criminal profiling, but it is
profiling based on all actionable intelligence,
which includes race as one of many criteria
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
Dutta argues that recording every police-citizen
interaction would
 keep officers professional and greatly increase
conviction rates
 reduce expenses of the criminal justice system
 build trust in police-public relations

Officers have started using cop-cams,
purchasing them with their own funds
 officers realize the protection video recordings
provide against false complaints
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
Callahan & Anderson use racial profiling to
refer to the practice of stopping and inspecting
people who are passing through public
places—such as drivers on public highways or
pedestrians in airports or urban areas—where
the reason for the stop is a statistical profile of
the detainee's race or ethnicity
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Due to:
1) difficulty in policing victimless crimes in
general and the resulting need for intrusive
police techniques
2) greater relevance of this difficulty given the
intensification of the drug war since the 1980s
3) additional incentive that asset forfeiture laws
give police forces to seize money and property
from suspects
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
US Forest Service memo instructed park rangers at
Mendocino National Forest, CA:
"to develop probable cause for stop...if a vehicle stop is conducted
and no marijuana is located and the vehicle has Hispanics inside, at
a minimum we would like all individuals FI'd [field interrogated]."

76% of motorists stopped on 50-miles of I-95 by Maryland's
Special Traffic Interdiction Force were black (AP, 1995)
 Blacks are 25% of MD population, 20% of pop’n w/ driver's licenses

94% of the motorists stopped in one NJ town were minorities

Minorities are not only more likely to be stopped than whites,
but they are also often pressured to allow searches of their
vehicles, and they are more likely to allow such searches
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
asset forfeiture is the process by which property may be
forfeited to the US without judicial involvement
 Legal standards have been raised; “probable cause” not sufficient; require
“preponderance of the evidence" that the property was used in or is the product of
a crime

US DOJ reports:
"Collectively, local police departments received $490 mil. worth of cash, goods,
and property from drug asset forfeiture programs during fiscal 1997. Sheriffs'
depts had total receipts of $158 mil."
“This kind of money adds a major incentive to police
efforts to discover drug crimes.”
 An estimated $10.9 billion in assets were seized by
US Attorneys in forfeiture cases 1989-2009 (21 yrs)

 The annual growth rate averaged almost +20%
 Asset value seized in 2009 was 4 x’s greater than in 1989
[“Forfeiture Facts,” DrugWarFacts.org]
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

Case probability: race/ethnicity enters profile when
it’s relevant to a particular event(/crime)
Class probability: race/ethnicity enters profile based
on association with a class of events(/crimes), but
not relevant to a particular event
 Such investigations risk violating “equal protection”
 e.g., CA, MD, and NJ cases
▪ before having evidence of a particular crime, police set out
intending to investigate a high proportion of people of some
particular race, ethnic group, age group, or so on
▪ only justification is that by doing so, they increase their chances
of discovering some crimes
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

Statistical studies and anecdotal evidence show
that drug crimes are the almost exclusive focus
of investigation in racial profiling cases
Evidence of “laying out broad dragnets to see
what turns up”
 On basis of class probability
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Common understandings tend to associate terrorism
with certain groups a particular sets of beliefs
 But, according to many analysts, “Terrorism is a
political strategy, not a creed” (i.e., “asymmetrical
deployment of threats and violence against
enemies using means that fall outside the forms of
political struggle routinely operating within some
current regime” (Tilly, “Terror, Terrorism, Terrorists,” 2002)
  Therefore, ethnic or racial data should have no
place in generic terrorism profiling

,
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WikiLeaks/Julian Assange
cyber-terrorists?
Over a dozen peace activists in
Midwest targeted in FBI
investigation into “material support”
for terrorism
Anwar al-Awlaki
US-born Islamic lecturer of Yemeni descent who is said to have inspired
anti-Western terrorism in his online sermons; Al-Awlaki's “targeted killing”
was approved by President Obama, with the consent of the US National
Security Council. After an October 2011 drone strike, Al-Awlaki became
the first US citizen killed by the CIA in a targeted assassination.
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Ch. 43: Samuel Walker
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

Decriminalization of certain types of behavior
has long been a major item on the liberal
crime control agenda
The problem was the “overreach” of the
criminal law
 Covers too wide a range of human behavior
 Tends to express moralistic concerns of particular
groups offended by the behavior of others
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1)
2)
3)
4)
5)
6)
7)
Drunkenness
Narcotics and drug abuse
Gambling
Disorderly conduct and vagrancy
Abortion
Sexual behavior
Juvenile delinquency
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
Many of these laws are criminogenic, producing
crime through:
 Labeling
 Secondary deviance
 Creation of a “crime tariff”


Overly broad criminal statutes undermine respect
for the law (e.g., Prohibition) and overburden
criminal justice system
The laws violate individual rights
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
“With the possible exception of heroin policy,
decriminalization is simply irrelevant to the control of
robbery and burglary”
Placing decriminalization at center of crime control policy evades the
issue
 Conservatives focus on serious crime but tend to propose
unworkable solutions
 Liberals tend to shift the subject and talk about social reforms not
directly related to serious crime at all


One exception: the connection between heroin addiction
and crime is clear, although decriminalization is just one
possible alternative and its efficacy is not established
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