The Militarization of the Police
by Steve Martinot ocf.berkeley.edu
The acquittal of the four officers who shot Amadou Diallo in the Bronx highlights its character as ritualistic murder. The sanctity of the police was not the sole meaning of that acquittal; it also constituted a more general approbation that rendered the killing itself unpunishible.
Narratively, the ritual unfolds as follows. The victim is seen by four hunters from their car. They get out, guns drawn. When one of them gives the signal (by performing the word "gun"), they opened fire. Nothing else transpires. The vestal victim is taken aback, takes a step backward into a vestibule, seeking only to identify himself, and dies. The ritual is performed in public. People are on the street, or looking out their apartment windows. And afterwards, incantations woven from rehearsed explanations are used to cloak the ritual's completion. First, he fit the profile of a rapist; second, this gave probable cause to assume he was armed and dangerous; third, in the absence of an attitude of obeiscence, he was assumed to be reaching for a gun. The police are carefully trained these days in the performance of this ritual through computer simulation exercises -- as pilots train with flight simulation programs. The jury adjudges the ritual authentically performed by acquitting. And its jury-sanctified meaning is confirmed the day following adquittal when another unarmed black man is shot to death by the police a few blocks from the Diallo scene. Though some in government express dismay, official satisfaction at the acquittal of Diallo's killers seemlessly becomes a vilification of the second victim, whose killers remain uncharged.
The political term for this is "impunity;" "impunity" names a hyper-political context in which the act (police shoots man) stands above both the police and the legal prohibition against murder. It is characteristic of military operations, and armies of occupation. And in urban areas, a form of militarization of police practices has taken place through an increasing deployment of technology, rhetoric, and tactics germaine to the military. Between traditional administration and new technologies of assault, the hyper-political space of impunity opens, transforming the organization of the judiciary, and society as a whole.
In his book Lockdown America, Christian Parenti gives an overview of the development of this militarization of police departments throughout the US.[1] He traces its growth from special detective branches, urban red squads, and tactical crowd control units to the eventual adoption of advanced weaponry, information technologies, aggressive military postures, SWAT teams, no-knock search and seizure procedures, and zero-tolerance ideologies. Many aspects of this development are adapted by-products of the Vietnam War, a war obsessed with anti-civilian tactics and technologies. They have been given national coordination and ideological uniformity through the Law Enforcement Assistance Act of 1973. And they have now become integral to the growth of prison populations, and the vast increase in construction, privatization, and industrialization of prisons (what has come to be called the prison-industrial complex).
Indeed, the fact that the US now has the largest prison population in the world, in both absolute and per capita terms, suggests the degree to which militarized policies are transforming judicial machinery, and even carpet-bombing various aspects of the Bill of Rights. And can ask what it means that a nation which prides itself on being "democratic" sees fit to lock more of its citizens behind bars than any other nation? One of the first elements of an answer would entail noticing that the highest rates of incarceration are reserved for black and brown people, who are swept into court systems and jails at rates 5 to 8 times their ratio to the total population. (LA,57ff) Fully 80% of the present prison population in the US is people of color. And two-thirds of them have been convicted of victimless, non-violent crimes. The proponderence of black and brown prisoners does not mean that whites do not commit crimes; it means that a judicial process is at work that has effectively decriminalized white crime. That is, the confluence of a hyper-criminalization of black or brown people with a decriminalization of whites constitutes a racialization of crime itself.
Parenti argues that the augmentation of police forces and prisons was a response to a classical Marxian over-accumulation crisis in the 1970s. The economy got caught between a profit squeeze and a strong labor movement, and sought to reassert political control. (LA,32) But he goes no further than such an historical materialist explanation; viz. that police repression was only to stem the economic crisis and return political control to a hierarchy whose domination had been temporarily eroded by social movements. He doesn't go behind the stories he provides, the many histories of abusive police operation, to excavate their inherent meanings. The social meaning of police power cannot be gleaned from endless stories of police abuse. Anecdotal accounts may represent the flavor of police operations, (LA,111) but they fragment it in their specificity. They leave unarticulated the general ideological irrelevance to the police of their victim's rights, citizenship, or humanity, as well as the question of recourse, or police brutality as a "crime problem" in its own right. Parenti simply projects that a resolution will eventually emerge from the inevitable overflow of "abuses of power" into the white middle class, threatening the veneer of "safety and security" that power is supposed to provide the mainstream. But more is at stake than that.
Profiling
Let us begin with the notion of profiling. The most familiar form is the traffic stop (made inordinately against people of color). A young black man driving a car may be stopped because the police claim he fits the profile of a car thief; thus they check registration, question the motorist, and search the car. But profiling involves more than traffic stops. People of color will be followed in department stores while whites are not. There is redlining of black or brown neighborhoods by banks, the withholding of loans, higher mortgage rates for people of color. People are refused jobs on the basis of color; a young person (of color) attempting to get a factory job has little chance of getting hired if the factory management deems his address to be in the wrong neighborhood. In sum, the operation of profiles rhetorically symbolizing high business risk or the probability of criminal activity have perfused the society. And because the profile, which outlines alleged characteristics by which a person becomes suspect, relies on visual recognition, it is per force of a racial or racializing nature.
A profiled traffic stop is one made on suspicion rather than a perceived violation. The motorist is thus detained while the police try to find something with which to charge him/her. It thus constitutes a form of harassment. When people of color are followed in department stores, it is also a form of harassment. The harassment is gratuitous because the profile is circular in construction; it is based on data that those who profile, whether the police, the banks, or department store security, have generated for themselves. That is, the preponderence of stops made of people profiled becomes an automatic data-filled rationalization for future profiled stops. When a person is deemed to fit the profile of an undesirable or overly risky business prospect, it is the profile that defines them as undesirable or risky. Its racialization is also circular. Because it functions through visual perceptions in the moment of a difference in appearance, it can only rely on a difference from what is not profiled, not noticed; that is, the profile exists only because the police have decided for themselves that others will not be profiled. In short, it is self-defining and self-referential. The origin of the profile lies in the act of profiling rather than in the situation or population profiled.
Though profiling clearly constitutes a form of discrimination, it does not constitute law enforcement. In fact, it is the very inverse of law enforcement. In law enforcement, a crime is discovered, and the police then look for a suspect who might possibly have committed it. Profiling means that a "suspect" is discovered, and the police then look for a crime that the person might have possibly committed. In the first case, a criminal act is committed and the police try to apprehend the criminal. In the second, the police commit an act of suspicion, and a person finds him/herself apprehended. That is, a person commits a crime in the first, while in the second, the police commit an act of criminalization. (LA,54) Profiling thus violates the tenets of law enforcement by making the police the active agent in the criminalization of a person. (This process would be impossible without the vast structure of "victimless crimes" that has been incorporated into the legal structure.) Law enforcement addresses people's acts in their particularity, and attempts to maintain order on a case by case basis, while profiling focuses on people themselves through a process of visual generalization, and disrupts social order and peace by introducing an atmosphere of aggressive harassment into it.
But generalizations of people never have their source in the people generalized, only in those doing the generalizing. A generalization cannot be empirical, because people always present themselves only as individuals. To see an individual as an example of a generalization means that one already has the generalization in mind in order to see the individual as exemplifying it. That is, one has already accepted the generalization, prior to the encounter. The act of generalization occurs in advance; that is, its social origin lies with those who generalize, rather than those it purports to be about. It is brought to individuals and imposed upon them from that social "elsewhere." And finally, all generalization contains a negative connotation because it assumes the social power to generalize others, to give them a negative valuation as generalizable.
It is precisely in this sense, as an already generalized visual procedure of noticing, that profiling assumes the appearance of being "reasonable," a valid way of doing things within a hierarchically racialized society, a society that prioritizes the noticing of race. Indeed, the structure of profiling is structurally analogous to racialization. Racialization begins as a generalization of individuals through some visual or conceptual aspect defined for them socially by others to be of notice, on which a negative valuation can be imposed, and which can then be used to attack or inferiorize those individuals in some fashion.
And like racialization, it produces a social division between those who are profiled and thereby criminalized, and those who are not -- a system of social categorizations invented and imposed by those who make the generalizations. To the extent that white crime is decriminalized because whites are not profiled, whiteness is given a different social as well as juridical meaning. Profiling thus conscripts crime in general into service as an instrument of social re-racialization. Thus, though judicially illegitimate, profiling appears socially natural.
Probable Cause
The legal concept that rationalizes police profiling and legitimates it is "probable cause." "Probable cause" is a rhetorical device that allows warrantless search or arrest by a police officer. It signifies that a cop has decided there is "cause to suspect a crime" is taking place, or has taken place. That a man "fits" the profile of a suspect being sought gives "probably cause" to stop and search the person. (LA,115) Should a man run away upon seeing the police, it provides probable cause for the police to think he is guilty of something, and therefore can be chased, shot, or stopped by other means, searched, beaten, and arrested. Rodney King's sin, for which he was tortured on a roadway in Los Angeles, was fleeing a traffic stop because he was afraid of what the police would do to him. "Probable cause" does not legitimize social aggression or brutality by the police, but it rhetorically provides the space for them.[2]
A profile provides the content for "probable cause," identifying in advance what aspects of appearance or behavior will warrant stopping a person. Anything that can be criminalized through profiling (in addition to race) -- for instance, clothing, hand codes, modes of socializing (hanging out), group dynamics, as well as hair style, age, and other elements of personal self-presentation within groups -- can then be used as probable cause. Many black social clubs, for instance, which provide a place of socializing off the street for black people, have been closed temporarily or permanently in US cities on this basis.
The conjunction of profiling and probable cause as routine procedures imply that the harassment and detaining of persons have become primary for the police over the maintenance of peace and security of social space. Social space gets divided into those areas disturbed by police actions, and those areas not. A hierarchy of social categorizations then emerges that reflects the various degrees of profiling to which people are subjected (young black motorists are "more" profiled than elderly black motorists, though both are profiled for traffic stops, while white middle class motorists are not profiled). The peace and security of "social space" becomes stratified hierarchically between those sectors whose peace is disturbed and those outside the profile who are left in peace. In effect, the actions of "peace officers" becomes, through the invocation of "probable cause," a disturbance of the peace of those they profile. In rhetorically addressing an alleged crime problem, the police become a crime problem.
It should be pointed out that this is not a sociological argument. Not every black motorist is stopped, nor are all white motorists treated with respect. What is being described here are the routine structures the police have available, and the social logic they reveal -- that is, the effect it has on people's social consciousness. Because racial profiling has become a social issue, most black people now think in terms of being stopped, whether they are or not, while most white people think of profiling as a sensible way of dealing with a "crime problem."
Ultimately, the ever-present potential for the disruption of social space becomes a low-intensity mode of social aggression by the state. The social stratification this aggression produces then signifies the varying degrees of personal liberty people are to be allowed. (LA,122) Individual liberty then becomes a political "commodity," a "public good" that can be transferred, taken from some and given to others, through shifts in the profiles. Some are allowed their freedom of behavior, and others are not because they as persons are criminalized before the fact.
Ultimately, under an ethos of profiling, the criminalization of behavior becomes a social norm. This extends institutionally, beyond police operations. When Mumia Abu-Jamal attempted to defend himself in a Pennsylvania courtroom, his conduct and behavior were used to rule him out of order, and to deprive him of this constitutional right. Judge Sabo claimed, during jury selection procedures, that Mumia's demeanor and his hair style (he wore dredlocks) scared one of the jurors. The constitution does not say a person must act a particular way to have access to guaranteed rights. But the judge ignored that in this instance (and such instances are legion), setting his personal standard of behavior above the non-negotiability of the highest law.[3]
The power of those in certain administrative positions to arbitrarily criminalize behavior reduces personhood to something that must fit a template in order to be given legal recognition or status in civil society, to not be rendered outside social legitimacy on sight. This constitutes a second dimension of social stratification through profiling. The institutional criminalization of behavior (in court or elsewhere) is not the prior condition for the legitimacy of profiling; the criminalization of behavior is itself a form of institutionalized profiling. They both reflect a common source. Relying on visual procedure and generalization, which they themselves then generalize, they both manifest the most fundamental operation of racism and its structures of racialization. They constitute two degrees of access to the law, two forms of legal status, two forms of being human for whites and people of color. Beyond constitutionality, both profiling and the criminalization of behavior become acceptible to American jurisprudence and to the social mainstream through that jurisprudence because they are well precedented in its historical structures of racialization, and are thus culturally familiar.
A third dimension of cultural familiarity, which attaches to profiling and probable cause, is the notion of guilt by association. The criminalization of teenagers in the name of street gang management, for instance, is based on it. In California, under current juvenile crime statutes, if one associates with others who belong to what the police have labelled (with neither a hearing nor accountability) a criminal street gang, one commits a crime. Clothing, gestures, hand codes, colors, etc. get listed as signs signifying gang status, and therefore guilt -- by association. Under such a statute, it is not what a person does, nor even who they are, but who or what they are associated with by others (the police) that comes under judicial control. Guilt by association criminalizes social connections, that is, it attributes criminality to an individual through his/her relations to others or to certain concepts. In effect, it extends profiling, which already constitutes a form of guilt by association in the sense that the police associate a particular appearance with a prior concept of what that appearance will mean before having been observed. The apriori guilt established by an act of association (and guilt by association is always apriori) may be unconstitutional because it deems an individual guilty until proven innocent, but in terms of police procedure, this has not been an obstacle.[4]
Like profiling, guilt by association is self-referential. In the case of street gang policing, it constitutes a unilateral police evaluation of individuals and social groups arbitrarily associated by the police to a description (of behavior or socializing, etc.) assumed criminal by the police themselves (in effect, extra-legally). This circularity has indeed been written into the law (in the California Juvenal Crime statute, for instance), insofar as it gives the police the responsibility to compile the data and generate the list of behaviors that will be considered criminal. Such a criminalization or derogation of behavior does not weigh the criminality of a specific action against a juridical standard of comportment; rather, it is the imposition upon a person of a prior evaluation of how a person or action already does not correspond with a prior standard of comportment, and is thus criminal. Guilt by association is the transformation of an extra-legal standard of comportment into a legal standard (without legislation) by the police. In effect, an individual is profiled because (behaviorally) deemed guilty by association with respect to the prior extra-legal standard that is brought to bear by an administrative (or police) agent, and guilty in advance because guilty by association with the profile. And this ethos extends socially (as culturally "familiar") to the mainstream paradigm that deems an individual placed under arrest as guilty in advance because placed under arrest, that is, guilty by association with judicial processing.
A Law Unto Themselves
What we have collated here are a number of juridical concepts that manifest themselves on the street in the person of the police as arbitrary and gratuitous procedure. Profiling, probable cause, and a generalized paradigm of guilt by association become the engine of police activity and aggressiveness toward certain racialized "target populations." Like generalization, they do not emerge from the individuals subjected to them; they are imposed on people from an institutional and political source that lies elsewhere. Because they generalize people, they not only parallel the structure of racialization, they continue it as an "ideology" that extends its aggression.
"Probable cause" signifies that, in any police situation, all the authority of the law can be brought to bear on a targetted individual through the person of the cop and the cop's self-involvement in that situation. Once detained, any police directive must be obeyed by the person detained. "Disobeying an officer" is a crime. In other words, once detained, any police directive translates into law. Refusal or resistance to a directive subjects a person to possible arrest, punishment (such as beating), or both. Thus, the police have the ability to create legal standards for street encounters through probable cause that then have the weight of actual law. That is, the police directive constitutes a cop's ability to make law in the moment. Having been profiled (criminalized), thus noticed (generalized), and stopped (absorbed into the judicial system), a person is confronted by another (the police), all of whose directives translate directly into law. The person detained is thus subjected to two systems of law, the legislated law and the law the police can make arbitrarily in the form of directives.
This gives the police the ability to transform a person under suspicion (already profiled) into a de facto criminal at will. The cop has but to find a directive that an individual will resist simply out of self-respect, a sense of dignity or justice, or a feeling that the directive is extreme and unwarranted. Such a stance will be construed as disobedience, and be cause for arrest, the use of painful restraints, torture with pepper spray, and charges of resisting arrest. If the officer choses to beat the person, the person can then be charged with assaulting the officer since the judicial presumption is that an officer will use violence to make an arrest only in self-defense. The cop's use of violence becomes presumed evidence that the cop was threatened or assaulted.
Thus an individual not only becomes captive to the legal system through the cop's noticing and profiling but, in being constrained to absolute obedience, can be criminalized and subjected to arrest in fact for defense of his/her dignity, self-respect, or sense of justice. Defense of one's humanity or self-respect can also be construed as an actual assault on the law if the officer decides to assault that self-respect violently. This goes beyond the mere criminalization of behavior that it relies on; it constitutes the ability to criminalize a person's personhood and sense of justice itself.
Thus, profiling and its attendant aggressiveness imply that the police have arrogated to themselves the power to determine who will be human, whose self-respect will be respected, whose autonomy and independence will go unpunished, and whose not. While the overt nature of this self-arrogation of power is a demand for obedience, its overall political import is a demand for obeisence. Obeisence differs from obedience in the same way profiling differs from law enforcement. In obedience, one stands as a person in relation to that which one obeys; in obeisence, one abandons one's standing as a person to the transcendent meaning of an icon or concept to which one must abject oneself. In disobedience, one only criminalizes oneself; non-obeisence becomes a criminalized status imposed gratuitously by the institution that demands obeisence.
This returns us to the question of impunity. "Impunity" is not simply a result of police departments offering internal solidarity to those officers who act with brutality or criminalize people. It names the hyper-political context in which the police not only stands above both police regulations and legal prohibitions against torture or murder, but become a law unto themselves, to which they can demand obeisence. It names the power given the police, authorized through the concept of "probable cause," to brutalize or dehumanize a person at will, without accountability. This means that the person subjected to that power has no recourse, neither in the moment nor through judicial procedure. A demand for recourse in the moment (for instance, an explanation or discussion of the situation) will be construed as criminal resistance and punished;[5] an insistence on due process after the fact will crash against the presumptions of the profile and probable cause. In other words, impunity is a system that extends both the juridical structure and the internal solidarity of police departments beyond that entire system simply standing up for its members' "excesses" out of organizational esprit de corps. A police department is duty-bound, prior to considerations of "solidarity," to affirm the impunity of each officer because "impunity" becomes the form "upholding the law" takes under the paradigm of profiling; and "upholding the law" is their sworn function. Because criminalization occurs in advance, both police accountability and judicial recourse by its victim are foreclosed by this sense of "duty." Not only can each officer make law in the moment to suit himself, but the police as a whole become a law unto themselves.
Once impunity becomes routine, as it has, the law itself ceases. Insofar as the law is, by definition, that to which all people are responsible, the ability of the police to make law in the moment without accountability means that the police are no longer held under the law, are no longer responsible to the law. Their responsibility to civil society is actually abrogated by the ability to make law in the moment, and by their ability to substitute violence for responsibility. To become the law means to dispense with the law. Because police directives are given the weight of law, the law becomes null. And this again articulates the final inversion of policing implicit in profiling and impunity: once the police can criminalize a section of society, the police themselves become a crime problem.
Instead of being addressed as a crime problem, police impunity becomes a socio-political function that deploys crime to re-stratify and reracialize society (because the means of criminalizing are visual). As in all racialization, it reflects a cultural ethos that presumes to determine who will be human and who will not, based on who is noticeable and who is left unnoticed, who will be criminalized in advance, and whose actual crime will be decriminalized.
To recapitulate, police profiling constitutes a structure of racialization. As generalizing, it reflects within contemporary juridical space the mode by which racism constructs groups as races through its generalizations. Profiling categorizes groups to be noticed and differentiated, based on prior racialization, using an assumed and generalized criminalization for the purpose. When police profiling singles out black and brown people, it is not the individual's behavior that renders them suspect; instead, the prior criminalization of color becomes the proxy for behavior, and renders their behavior suspect in advance. As criminalizing, profiling denigrates and inferiorizes those it criminalizes, because a reduction in juridical status is produced by it generalizations. The generalizations of behavior become a euphemism for racialization. Thus, the criminalization of race gets inverted as the racialization of crime. Black behavior, whether illegal or not, gets deemed criminal, while white racist violence, whether prosecuted or not, becomes simply behavior. Generalization, racialization, and criminalization are interwoven and inseparable moments in an endless re-construction of whiteness and white supremacy.
Herein lies the key to the idea of race itself. It has nothing to do with genetics; genetics is merely conscripted opportunistically as an accomplice. Race is a form of social categorization. It is based on a dominant group noticing a visible characteristic to which a prior negative valuation has been given, and through which the dominant group superiorizes itself by inferiorizing those it notices. While it grounds itself in generalizations of the other, that generalization is invented for the purposes of racialization, and is thus both gratuitous and arbitrary. Violence is inherent in this process since the identity of the dominant group is dependent upon the inferiorization of the subjugated group, requiring that inferiorization to be continually renewed in order for self-identification of the dominant group to retain its value. And inferiorization always requires violence. Violence is not only the essence of racism, but of white identity itself in the US.
In effect, subjugated people reside at the core of the dominant identity, yet must be continually evicted from it in order for that identity to preserve itself. Exclusion as a form of inclusion, separation as a form of identification, violence as a form of social stasis, the gratuitous as a form of necessity, are what characterize the foundations of race, and reveal race to be a system of social relations rather than an inherent character of people.
And this suggests in part the motivation for racial profiling in the US today. In the wake of the civil rights upheavals of the 1960s and 70s, a direct return to an historical concept of racism, operating within a traditional structure of segregation, was no longer possible. Instead, racial profiling is a re-racialization process whose aim is to reconstitute white consensus and white supremacy in response to the transformations wrought by the civil rights struggles. In the late 19th century, after the Civil War and emancipation, this was accomplished by segregation and disenfranchisement statutes that reconstructed white society. It is simply that the ideological component of the contemporary mode is different. And it uses different strategies.
Among the central strategies or rhetorical modes of promoting impunity are "zero tolerance" and "Quality of Life" (QOL) enforcement. A city will seek to sweep away people and behaviors that government has decided offend or corrode society's everyday appearance. For instance, QOL is used as a rationale to harass and arrest homeless people who panhandle, to clear them out of consumerist or tourist areas as a blight on the urban landscape. It is thus a class based ideology since, while harassing the homeless, it valorizes the landlords who rendered people homeless by increasing rent beyond affordability. In attacking those already subjected to society's abrogations, the destitute and the discriminated, it is politically repressive. "Quality of life" enforcement becomes another way a government abandons responsibility for its citizens, and disguises it has law enforcement. It also involves assaults on the social or political activists who may attempt to win some justice or offer an alternative to this derogation. Organizations like "Food Not Bombs," "ACT-UP," street gangs, and black social clubs all manifest such alternatives, and all fall into this category.
The theory behind zero-tolerance and "quality of life" strategies is that if the police crack down hard on minor crimes and offenses, then major violent crime will be eliminated at the same time. (LA,71) Thus, massive force becomes standard, even against petty offenses, including credit card fraud or cult activity; and brutality becomes routine. Non-obesience to police directives renders one a minor offender, and one is then dealt with as a major criminal. And Parenti points out that this has become a nationally coordinated strategy. (LA,70)
But there is also a "theory of society" manifest by these strategies, for which police impunity becomes the methodology. Zero tolerance strategies proclaim certain elements of society to be an enemy, which must be reduced to submission. Though this enemy is elusive, hidden in the folds of the social fabric, its signifier, "major violent crime," becomes the watchword of a campaign against it, engaged through low-intensity skirmishes. The police set themselves militarily against this enemy, which they recognize through profiles. And they enact it through the deployment of lethal weaponry as a first response, rather than as back-up. (LA,135) When someone identified by a profile is shot, the cop who did it is exonerated in advance as a combatant in this low-intensity war. For the police, to shoot or strangle a person who struggles against restraint (for instance, Aaron Williams), or who simply walks away from a police interrogation, to win a small victory in this war. They claim they have defeated an enemy in the name of a law which the enemy had apriori violated through having been proclaimed (however tacitly) an "enemy" in the first place through the profile that noticed him/her.
In effect, the major crime the police focus on is the crime of being noticed by the police; those noticed become the enemy to be engaged as such because the police have noticed them. Concomitant to the government's abrogation of responsibility to its citizens, QOL enforcing marks a self-defining and self-referential campaign to divide society into the acceptible and the unacceptible.
Under "zero tolerance," the police operate as an army of occupation, a presence that produces the aura of martial law and renders social space occupied territory in pursuit of its system of noticing. The specificity of civilian law is surpassed and left behind in the absolutized relation of the police to the person on the street or in his/her home. In sum, the militarization of the police lies not in its use of military weapons, high-tech communication, or state-sanctioned torture techniques (beatings, pepper spray, pain-inflicting restraints, etc.), but its pro-active aggressiveness, coupled with its ability to construct whatever law and legality it may need in the moment in order to criminalize those it has engaged as the "enemy."
But to this extent, though the police have militarized themselves as an army of occupation, they also operate a other than military. As Parenti points out, there is no unified military organization; their command structure is highly decentered -- among cities, precincts and districts, and finally, the autonomy of the individual police officer. Even through national coordination under the LEAA, (LA,75) police operations are not performed pursuant to pre-defined governmental ends, as are military campaigns. The significance of this is that the police constitute a paramilitary rather than a military force. Paramilitary forces have capabilities denied both governments and legitimate armed forces, among which are an autonomy of operation, and an ability to violate human rights and terrorize people without accountability. The paramilitary forces operating in Latin America, ostensibly independent of civilian government, provide civilian government with an alibi while repressing popular movements. Government can issue denials, complain of powerlessness against the unlawful activity, and express concern for human rights and democracy. Yet they become dependent on those forces for social control. Thus, paramilitary forces become powerful influences on the politics of a nation, without becoming an open political participant. It is the ability of an officer to create a criminalizing situation for any individual in the moment that is the function of this decentralization, and renders the police paramilitary.
Ultimately, with respect to the complex connection between paramilitary criminalization processes and the structure of racialization, the term "racism" has become an empoverished term. While it still pertains to a social context of violence, it makes reference to race rather than racialization, to a biologism rather than the social relation it signifies; that is, to something about the victim of the structure rather than to the structure that victimizes. Thus, it falls short. It hides the fact that profiling and impunity (whether by the police or any other social institution) function as one mode by which white people obtain status (whiteness) and a sense of being normative (human). Though most white people would object to this idea, they remain unable to see its dynamic precisely because it is successful -- that is, precisely because they consider themselves white, and therefore human. It is the normativity of others being noticed as non-white, which constitutes their very consciousness of being white, that prevents whites from noticing that the police operate by noticing non-whites. Indeed, the simple assumption by whites that non-white people are human in the same way they are prevents whites from noticing that their own sense of being human already constitutes a social categorization that differentiates them, and that the term "human" takes on different meanings on either side of the divide created by profiling.
Historical precedence
The antecedent to all this is, of course, slave law. As Saidiya Hartman has argued, slave law was based on two contradictory principles, the necessity of the slave master to have absolute obedience from the slave, and the voluntary accession to the master on the part of the slave.[6] This duality emerged from the double existence of the slave as legally designated "property" who was still a person.[7] For these two forms of existence to be realized, this ideology required two systems of law, one which held for white society, and the law of the "master" to exact absolute submission from the slave.
During the half-century before the Civil War, many contorted court cases established that public law must sanction in advance whatever the "master" had to do to bring about obedience. (SOS,91-2) The courts in general decided that the absolute submission of the slave was essential not only for the maintenance of the slave system, but for the general (white) public welfare as well. It was the greatest "public good" that required that each master insure the total submission of the slave as a "principle of moral right." In one exemplary case, a white man shot a slave he had hired from another owner to stop her from fleeing a beating he was about to administer for a small infraction; the court found him responsible for damages to the "owner," but not guilty of assault since his power to exact obedience, if it were to be absolute, was "not a subject for discussion." (SOS,91) If the degree of control was to be absolute, then anything could be considered a minor infraction, (SOS,62-3) and whatever violent or brutal means of punishment necessary were legitimated in advance. (SOS,92) Their sexual conduct toward slaves, the inflicting of pain, the invention of forms of obedience, were "private" matters of ownership which the courts agreed were beyond the purview of the law. (SOS,96) For the submission of the slave, the owner's word was law, a law unto itself. (SOS,83)
Slave law thus established two different social realms, the public and the private, each operating according to its own law. The private domain of the landowner stood beyond public law, and that standing beyond was seen as a social "responsibility" toward public society; this produced a realm of impunity over which the public law abjured jurisdiction, and thus sanctioned.
Ironically, in "slave code" jurisprudence, the valorization of absolute obedience was to be "balanced" in the public law by the establishment of legal safeguards for the slave against public abuse, assault, etc. -- just as police impunity is still understood to be "balanced" by the Bill of Rights. However, the "laws" that pretended to safeguard the slave's person were worthless in court since slaves could not testify against whites. The safeguards were left to a "mutuality" of "affection" between the master and the slave. (SOS,91) The law actually recognized that the slave's major recourse was to the "good feelings" of the master, the relation of "affection" between the two as people "born and bred together," contingent upon the prior relation of "perfect submission as an ordering principle of the social."
And similarly, under the operation of police impunity, the constitutionally guaranteed rights against unreasonable searches and seizure of person or property now function under the aegis of impunity, which likewise demands "submission as an ordering principle of the social." Due process and civil rights for profiled arrests, asset forfeiture, or house searches are postponed, and derogated if real criminality (resistance) can be shown. This only becomes a motivation for police violence, since police violence is presumed to signify self-defense against a threat, and prima facia evidence of real criminality on the part of the suspect. Thus, the criminality imposed by the police through charges of resisting arrest, disobeying an officer, etc. obviate the guarantee of due process even in its postponement.
Hartman describes masters revelling in a willfulness of punishment, an enjoyment in whipping, beating, or mutilating slaves guilty of minor infractions, as an element of "enjoying" their "property right." Indeed, under the aegis of absolute submission, the "master" felt entitled to enjoy not only obedience from the slave, but an enactment by the slave of a performance of pleasure or contentment at service, even in the face of whatever violation of the slave's personhood (rape or torture) the "master" thought appropriate. In Hartman's account, the landowner's "enjoyment" of his/her property was to be literally staged, so that it referred not only to having property, but to being entertained by it. Behavior evincing disgruntlement, discontent, recalcitrance, or resistance was non-submission, and thus punishable. (SOS,94) Labor, sexual service, and friendly performance were all dimensions of the same relation.[8] The slave that showed any autonomy was considered one who had taken over control of someone else's property, and thus was guilty of a form of theft, or expropriation, and punished as such. (SOS,66) Similarly, for those profiled to claim Constitutional rights in the face of police impunity are thus guilty of pretending to a superseding law which impunity has itself already superseded. Not to show the required obeisence means one's existence has become a transgression, no longer available to civil rights.
The effect of the slave codes was not only to create a situation in which a black person was thrown from one form of non-identity to another, but white society insured its own identity in its ability to have it both ways. When a white man injured a slave of another white man, the first was liable for damage to property; that is, the person of the slave was only protected as the property of another. If a slave stole something, the slave was punished by a master whose "property" s/he was; that is, the slave was punished as property by first being granted the character of human personhood to which the juridical category of theft was relevant. Thus, the public face of the slave as a person was defined in terms of the slave as property, and the private face of the slave as property was defined in terms of the slave as person. Profiling continues this duality. When the police stop a suspect through profiling, they are stopping a non-person because they have generalized the person in advance; but they must bestow on that suspect the character of a person in order to discover something criminal for him/her to have committed as an individual. At the same time, to invent a charge against the person, the police must reduce the other to the status of object from which absolute obedience is to be exacted.
In reflecting the earlier "tradition," police impunity's demand for submission and obeisence also reconstructs the separation of social authority into two realms, the public and the private. The police constitute the "private" domain insofar as they can make law for themselves in the moment, and criminalize deviance from absolute submission. Their hold over the person stopped is as absolute as that of the slave master, and the demand for obedience as unconditional. Thus, the private realm of the slave relation gets mapped onto police violence and the public realm gets mapped onto white society, onto that sector of society that remains unprofiled and unaffected by it. Impunity is authorized not by being public, but by being that "private" domain of law which reconstitutes the public realm itself.
Though the task, or charge, to produce absolute submission in a sector of the population, including the ability to shoot a person and go unpunished, is something the police have given to themselves, it is valorized by the surrounding political culture because it is wholly familiar. Both the police and the impunity of slave masters belong to the same paradigm of dual systems of law, sanctioned by the law, in producing the subjection of people of color. What contemporary juridical procedure has done, by valorizing police impunity, is regenerate the doubled system of law of the slave system. There is one law for the unprofiled, and that is the law legislated and written in law books. That is, there is the reservation of private space within the public domain in which a law of impunity becomes absolute. Thus, both manifest the component elements of white racialized identity: paranoia ("the" crime problem), violence (police impunity), and white solidarity (public sanction of "private" law).
Impunity in Political Terms
Three political corollaries emerge from this discussion. The first, which follows from the fact that profiling remains unseen by those unprofiled, involves the recurrence of police violence as a social spectacle, the overtness of violence, as in the suppression of the Million Youth March in Harlem, or the breakup of the Dorismund funeral in Brooklyn. The second, which follows from the police as a private domain, is an implicit structural impossibility of a functional civilian review board. And the third is the exigent production of the prison industrial complex.
As suggested above, the notion of "fighting crime" has become a euphemism for paramilitary operations which arrogate to themselves the power to define who will be socially acceptible and who will not, who will be human and who will not. Sanctioned in advance by public law and mainstream political culture, the effect of these operations is to divide society into two domains, the racialized and the unracialized. A privilege accrues in the ability to be unprofiled, that is, to be non-black or non-brown; it is a privilege that public society seeks not to have to recognize as such, but to be considered and known as a natural state of affairs. One of the critical aspects of profiling, of the act of noticing, however, is that it is ignorable by those outside the profile. If it remains unknown as a social operation, then it fails to produce an awareness of the social division as "natural." Because profiling itself is visual (and hence racializing), it remains invisible to most of white America, who escape notice. One doesn't notice that one is not noticed by the police; one simply thinks they are doing the job of resolving a crime problem.
While this insouciance constitutes legitimation, it requires a greater concrete awareness of itself to become a sense of social order, a recognition of social categorization. The division of society becomes meaningful only if its beneficiaries and recipients are able to confirm its existence. The solidarity and security of white society depends on understanding what there is with which to be in solidarity. For this purpose, the threat the police are dealing with must be made "real." The quiet and arbitrary sweep of hundreds of thousands of minor offenders of victimless crime laws into prison would have no cultural effect. Something visible, a spectacle, must be added in order to complete its social function.
As Ida Wells pointed out in the 1890s, it was the public spectacle of lynching that produced the feeling among whites that black men were out to rape white women, that Jim Crow laws were thus necessary, and that the law had to be supplemented by extra-legal means to stem the tide. In the same vein, it is precisely the publicity around the deadly operations of the paramilitary police which signify that the profiled are indeed criminal, against whom paramilitarization is necessary. Public ritualistic murder and brutality give the mainstream an opportunity to notice police strategies, to hear the rhetoric of juridical authorization, and to recognize the lines that violence functions to draw across the social fabric by which whiteness is reaffirmed.
Thus, police murders are not incidental, nor are they the work of "rogue" cops. They are an essential part of the larger campaign of social re-racialization. The day after the acquittal of Diallo's killers, the next murder of a black man occurred, a few blocks away. Malcolm Ferguson, a man who had been active in rallying community support for the police indictments, and opposition to police impunity, was shot to death during a traffic stop. A few weeks later, a man named Patrick Dorismund was killed by an undercover cop because he refused the cop's demand for a drug trade. At his funeral, which involved a march of several thousand people, many were hospitalized by the police when they charged into the assembly of mourners. It is these actions that sanctify police violence, and enable their general campaigns of profiling to constitute a recategorization of social strata.
Of course, in reconstructing whiteness for whites, and demanding support for their war on "violent crime," they are also "enforcing" a white solidarity, as well as constructing it, as the cost of that construction. It constitutes an additional aspect of social control. Whites are brought under control as white through the unquestionability of what the police are doing. The solidarity demanded of them means that whites cannot protest against injustice, whether toward themselves as exploited, or against others as profiled, without additional peril, that of calling in question their membership in white society, that is, their solidarity with whiteness. Police violence, however gratuitous, becomes the act of solidifying white solidarity. While the ethos of law and order, the sanctity of police impunity, has becomes the shape of the membership card that white people carry to signify their whiteness, it is also their draft card into that society (irresponsibility toward which is punishable).
The second corollary, the impossibility of a civilian review board to oversee police procedure, follows directly from the first. Police profiling represents a division in the law between public and private domains, each of which participates in producing the other. The police, by producing a social stratification, reconstruct public (white) society within which public law functions to sanction (in a de facto sense) the impunity of the police as a private domain. The structural connection between the police and those who seek legal (public) recourse against their abuse by the police has been broken. People can only go to the public law for recourse, while public law has already granted and sanctioned police autonomy as a private domain outside itself. Thus, the people profiled are divested of any political connection to that which besets them.
For the police, all review boards stand in contradiction to their autonomy. If the police oppose community self-defense against crime, it is because it would imply a community ethic of defense against all violence, including that of the police. It would call in question the police domain (private law) of impunity. Oversight would curtail the spectacles whereby they produce awareness of their stratifying social function. Mass struggles to win civilian review have been exercises in futility, as have attempts at community control of policing or community self-policing. The police acceed to community policing only if it is under the control of the police, with all operations routed through the police department first (a bureaucratization rather than a democratization).[9] Though a few review boards have been empanelled in different cities, they have simply had the ability to make "recommendations," and never with enforcement power. In other words, every attempt to win civilian review of as well as over police operations has failed, not only because of police opposition but because the public law has already sanctioned that failure. For public law, the police need not reliquish control over their operations manuals, nor open them to public scrutiny, nor allow their standards to be reviewed by the community. In a word, they need never submit themselves to democratic governance. Their standards of comportment, like their juridicality, remain beyond the law, a private domain.
The other side of this coin, which has grown naturally out of the structure of impunity, and concretizes the crisis that the reconstructed boundary between the public and the private represents, is the prison-industrial complex (PIC). The central function of prison in the US has not been "corrections," nor the curtailing of violent crime (which prison has never done); its central purpose, whether in the form of the slave plantation, the chain gangs of the Jim Crow era, or the contemporary PIC, has instead been the conscriptive control of black personhood and black labor. New prisons are now being built and filled not because there is a growing crime problem, nor because prisons have ever solved one, but because the dual structure of law that paramilitary police represent require prisons as containers for the victims of impunity, as adjuncts to the racializing structure and domain of that impunity.[10]
Today, the prisons do not function as punishment for crime; they are the place where punishment for having been criminalized occurs, the place where public law ratifies the private domain it has established beyond itself. The prison system does not begin with the door in the back of the court through which the convicted disappear after solemn pronunciations from the bench. It begins on the street, at the point where police impunity effects itself as its own law. That is the lip of the funnel that today pours thousands into faraway jail cells; the courts with their judicial procedures are only an intermediate passageway. Judges, prosecutors, and jailors have all become conveyors in that structure, the intermediary machinery that absorbs into, and at the same time excludes from, the public domain, by imprisoning, as part of its affirmation of police impunity. In filling the prisons with those swept up by police aggressiveness, the judicial machinery bestows validity and legitimacy on it. The PIC is the materialization of that legitimacy. The farming out of prison labor to corporate benefit, and the privatization of prisons, are simply continuations of this more fundamental social division.
This structure is not new, nor is it only a distant echo of the plantation slave system, whose form of directly imprisoned labor was itself impunity as such. It stretches continually through that intermediate century from the 1860s to the 1960s known as the Jim Crow era, whose legalized modes of segregation and disenfranchisement were but the political expression of a different channel from impunity to criminalization to prison. Though the topic of that interregnum between the double legal system of slavery and that of today is vast, and will require much research and investigation, suffice it to say that it forms an unbroken connection between the two.
From the Civil War to the Second World War, reaching a peak around the turn of the century, many forms of debt servitude and usurious crop mortgaging systems were devised to chain black tenant farmers and sharecroppers to debt, to the land, to labor, and to permanent empoverishment through that debt. Some of these forms are outlined in the chapters on the "black belt" in W.E.B. DuBois's book, The Souls of Black Folk. Commercial and proprietary hold over black land-workers was enacted through contract law and by ignoring ordinary (public) social protections concerning juridical procedures, interest rates, evictions, social comportment, self-defense, vagrancy, etc. when it concerned black farm tenants and laborers. And paramilitary terror was held at the ready against all attempts at agrarian labor or tenant organizing. In effect, those who used debt and landholding to hold juridically free people in thrall had its own form of impunity, sanctioned by public law as well as separated from it. And should the debtors fall too far behind, or flee to escape the deathly condition of their empoverishment, they were subject to arrest, to be funneled through a court system that travelled them quickly to prison workhouses and chaingangs used to maintain the material infrastructure of the south. Thus, the landed and commerical interests of the post-Civil War period had their own forms of impunity to generate their own forms of absolute submission of black land-workers to and in their servitude. And as a private domain of debt exploitation, while insisting on its autonomy, it relied on the public legal machinery for valorization, as well as to sweep up those who did not submit.
In short, the crux of the Jim Crow system was not the chaingang, nor segregation, but the impunity of a system of debt servitude, the private power to chain a people to land, labor, and empoverishment that segregation and the chaingang, as public law, serviced and valorized. And today, the crux of the prison industry does not lie in the prison itself, but in the system of valorization of police impunity by the political culture that both bestows that impunity and builds the prisons. In other words, the political question the massive rate of imprisonment raises is not simply how to end or correct it, but how to transform policing, beyond its training procedures and manuals, its operational ethics and standards. To end its impunity, the deeper structure that continually reproduces that impunity in different forms, but with the same content, must be recognized -- a structure that has operated throughout US history.
To discern the forms of double legal structure, constituted as a separation of public and private domains, is only to situate them as the essential signifiers for the structures of racialization they continually express. Today, the police have been substituted in urban areas for the "private" domain of the plantation "masters," or of the rural banks and dry goods establishments of the Jim Crow south, to insure the submission of labor of color to white society as a whole. In that sense, plantation, debt servitude, land tenancy, ghetto, police precinct, paramilitary armored corps, and the prison-industrial complex all flow into each other, as the many heads of the hydra by which whiteness and white supremacy have maintained themselves as the central social structures of the US.
1. Christian Parenti, Lockdown America: Police and Prisons in the Age of Crisis (New York: Verso, 1999), p. 54. Hereafter cited as LA.
2. The first appearance of the expression "probable cause" in US jurisprudence occurs in the U.S. Constitution. The fourth amendment states:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, suppoted by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
"Probable cause" has to do specifically with searches and seizures. As we shall see, in US case law, particularly the slaves codes and the Dred Scott decision, the term "people" refers to whites. The term "unreasonable" has been limited; issues of national security, and profiles, makes searches "reasonable." And the police have been given the force of warrant by profiling, to which "fitting the profile" they then bear witness. That is, it is to become witness to their own prior perception and decision. In effect, the intended protections of the amendment have been pretty well gutted.
3. The psychiatric industry is based on the same hyper-constitutional principle; if one's behavior strays sufficiently from an unlegislated "norm," then one can be deprived of one's freedom without due process, by means of an ostensible medical decision. Cf. Thomas Szasz, "Ideology and Insanity".
4. The most contorted form of guilt by association, in which guilt is assumed and innocence must be proven, is in asset forfeiture. Asset forfeiture attributes behavior to things themselves, in order to circumvent Constitutionality. Though the 5th amendment establishes that property can not be seized without due process, assets can be seized arbitrarily if the police decide that such assets can be used in the commission of a crime, thus establishing that the person associated with the assets might be a criminal. Asset forfeiture is not seen as a seizure of someone's property, but a preventive detention (of assets) to obviate facilitating a crime. The forfeiture treats the assets as themselves suspect, and apprehensible (detainable) as such, while the person associated with the assets then becomes guilty by association with them. The assets are guilty by association with the suspect, and the person is suspect by association with the assets.
5. When the police broke up the Dorismund funeral in Brooklyn and made mass arrests, none of which were valid charges in court, they were autonomously punishing political expression and social autonomy. When 19 year old Jerrold Hall walked away from a BART cop in Hayward, California, November 1992, because what the cop had asked him was senseless, the cop shot him in the back and killed him, and received no reprimand. That people have been shot because a cop has been called to a "domestic quarrel" is evidence that discussion of one's situation with the police has long since ceased to be a possibility.
6. Saidiya Hartman, Scenes of Subjection: Terror, Slavery, and Self-making in Nineteenth Century America (New York: Oxford Univ. Press, 1997). Hereafter cited as SOS.
7. The notion that people can be property is of course fraudulent, a form of self-deception, and stupid. If people could be property in the sense of an object or land, then the title deed itself would be sufficient to establish compliance and obedience to the "owner." But it never has been, to supplement which vast technologies of punishment and patroling have been necessary. A person can be captured, held captive, and tortured until they work, but to euphemize this as "ownership" is only to disguise its criminality for oneself. The salient fact that must be confronted is that an entire society founded itself on this criminal self-deception, and transformed it into a sense of honor and patriotism for itself.
8. An entire theory of the "power of submission" was developed by pro-slavery sociologists, such as George Fitzhugh. Proclaiming that weakness could exercise power over strength through seduction, this theory reasoned that slaves would act content in order to get what they needed from the master. Seduction was a mode of empowerment. And thus, the degree to which a slave submitted to the master was the degree to which they were equal in power. In particular, with respect to sexual relations, since rape was not a possibility with respect to slave women because resistance was prohibited, sexual relations were to be considered desired and seduced on the part of the slave women raped. (SOS,86) Rape, torture, injury, and terror, were not definable categories under such a system. Yet even to disguise one's violation of the slave's integrity and autonomy, a humanity had to be bestowed upon the slave in order to take it away again, and then further disguised as a seduction of the master to that violation to which the slave submitted "gladly."
9. Perhaps the largest contemporary experiment in community policing (though it was always promoted as much more than that) was the Oslo Peace Agreement between Palestinians and Israel establishing the Palestine Authority (PA). The PA was given the task of policing the Palestinian communities, meaning curtail their resistance to Israeli settlement and occupation of Palestinian areas, which the Israeli government was finding difficult. The task given the PA was to render the Palestinian people docile and acquiescent. The PA's inability to do that as well then became Israel's rationale to further aggression against Palestinian areas.
Based upon the Palestinian precedent, we can see what would happen in the US, should community policing be established. The community police would have to agree to enforce black or brown compliance to the laws and functioning of the US as a society -- viz. what the police do now -- laws and functions that are white supremacist. For a black community or neighborhood, a black community police, while it might not be as violent to neighborhood people as white police are, would nevertheless be charged with suppressing resistance to white supremacy, to which it was responsible. If it could not do so, then the surrounding white political structure would invade and reoccupy the territory -- violently because their "agreement" had been broken. Either community policing would assume the tasks of the white police, or an overt militarization of the community would occur, making the situation worse.
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