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New Political Science

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Carceral State 2.0?: From Enclosure to Control & Punishment to Surveillance

Daniel Kato

To cite this article: Daniel Kato (2017) Carceral State 2.0?: From Enclosure to Control & Punishment to Surveillance, New Political Science, 39:2, 198-217, DOI: 10.1080/07393148.2017.1301312

To link to this article: https://doi.org/10.1080/07393148.2017.1301312

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New Political ScieNce, 2017 Vol. 39, No. 2, 198–217 http://dx.doi.org/10.1080/07393148.2017.1301312

Carceral State 2.0?: From Enclosure to Control & Punishment to Surveillance

Daniel Kato

School of Politics and international Relations, Queen Mary University of london, london, UK

ABSTRACT Mass incarceration is at a crossroads. Even though demands to dismantle mass incarceration are increasingly gaining traction, it will not necessarily lead to a reduction of the carceral state. There is an emerging trend that centers on surveillance, security, and police discretion. The ways in which policy-making is negotiated, social upheaval is managed, and policing is being adjusted affirm a shift that puts more of the onus on the controlling aspects associated with law enforcement and less on the enclosing characteristics of incarceration. The current decline in incarceration should thus be seen as more of a realignment than an end of the carceral state.

“The collapse of mass incarceration will not mean the death of racial caste in America. Inevitably, a new system of racialized social control will emerge—one that we cannot foresee, just as the current system of mass incarceration was not predicted by anyone thirty years ago.”

-Michelle Alexander, The New Jim Crow1

Introduction

The carceral state is at a crossroads.2 Many have rightfully pointed out the overly punitive and disproportionately racist policies such as the war on drugs and broken windows and hence have called for reforms to mass incarceration, which typically includes decriminaliza- tion of non-violent offenses and reducing the number of people currently in prison.3 Even though these demands are increasingly gaining traction, the decline of mass incarceration will not necessarily lead to a reduction of the carceral state. Instead, it might actually lead to a reconfiguration.

As these reforms are occurring, there has been a surging crisis regarding police discretion and the use of deadly force. There have been a multiplicity of lethal incidents involving a

1Michelle alexander, The New Jim Crow (New York, NY: the New Press, 2012), p. 19. 2the term “carceral state” is meant to be an umbrella term for the extensive nature of surveillance and punishment that

includes police departments, prosecutor’s offices, correctional departments and the courts. 3Michelle alexander, The New Jim Crow; loic wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity

(Durham, Nc: Duke University Press Books, 2009); committee on causes and consequences of High Rates of incarceration, committee on law and Justice, Division of Behavioral and Social Sciences and education, and National Research council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (washington, Dc: National academies Press, 2014).

© 2017 informa UK limited, trading as taylor & Francis Group

CONTACT Daniel Kato [email protected]

NEW POLITICAL SCIENCE 199

disproportionate number of victims of color including but not limited to Trayvon Martin, Oscar Grant, Michael Brown, Eric Garner, Sandra Bland, Tamir Rice, Rekia Boyd, Freddie Gray, and Walter Scott. These incidences, along with subsequent exonerations of those who were involved in the deaths have reached a breaking point. William Bratton, New York City Police Commissioner was explicit: “Let’s face it, we’re in a crisis at this time, in this country, on issues of race, around effectiveness of policing, around police tactics, probably the most significant I’ve seen since I joined policing in 1970.”4 Although police brutality against people of color has been ubiquitous throughout American history, “the truth about the racism and brutality of the police,” according to Keenanga-Yamahtta Taylor, has nonetheless recently “broken through the veil of segregation that has shrouded it from public view.”5 By 2010, police terrorism and state-sanctioned violence has, according to Alicia Garza, co-founder of Black Lives Matter, “taken center stage nationwide.”6 The growing consensus regarding mass incar- ceration seems to be inversely proportional to the crisis surrounding policing.

Many have already been pointing out the changes in how the carceral state functions. In a Vanity Fair article entitled “23 Years after Rodney King, Victims of Police Violence Get Even Less Justice,” Seth Morris writes, “it’s obvious that the environment has changed. Looking at these incidents, the police appear to be more violent, the public appears to be more at risk, with a system that’s less equipped to deal with it.”7 In their investigation of the New York Police Department (NYPD), political scientists Alex Vitale and Brian Jefferson state, “NYPD’s core policing strategies represent a shift from an emphasis on using extensive imprisonment as the primary tool of punitive social control toward the intense regulation of low-income communities of color as prisonlike spaces themselves.”8 According to sociologist Loic Wacquant, changes have already occurred in Europe:: “the penalization of poverty a l’euro- penne is effected mainly through the agency of the police and the courts rather than the prison. It still obeys a predominantly panoptic logic, rather than a segregative and retributive rationale.”9 Whereas the onus had been on prosecutorial discretion and legislation that emphasized severity, disproportionality, and punitiveness, there is an emerging trend that centers on surveillance, security, and police discretion.10 The United States (US) is moving away from the punitive era of legal formalization and penal institutionalization and moving toward a “securocratic” era that is more informal and expansive.11 The police’s role to monitor, search, and surveil is taking primacy.

4Kevin Fasick and lorena Mongelli, “Bratton Says Policing in a ‘crisis’ at tribute to Slain NYPD cop,” New York Post, May 6, 2015, available online at: http://nypost.com/2015/05/06/bratton-says-policing-in-a-crisis-at-tribute-to-slain-nypd-cop/.

5Keeanga-Yamahtta taylor, From #Blacklivesmatter to Black Liberation (chicago, il: Haymarket Books, 2016), p. 154. 6alicia Garza, “Foreword,” in Who Do you Serve, Who Do you Protect?: Police Violence and Resistance in the United States,

Maya Schenwar, Joe Macare and alana Yu-lan Price (eds), (chicago, il: Haymarket Books, 2016), p. vii. 7Seth Morris, “23 Years after Rodney King, Victims of Police Violence Get even less Justice,” Vanity Fair, February 5, 2015,

available at: http://www.vanityfair.com/news/2015/02/rodney-king-23-years-even-less-justice. 8alex S. Vitale and Brian Jordan Jefferson, “the emergence of command and control Policing in Neoliberal New York,” in

Policing the State: Why the Policing Crisis Led to Black Lives Matter, Jordan t. camp and christina Heatherton (eds), (New York, NY: Verso Press, 2016), pp. 157–158.

9loic wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham, Nc: Duke University Press, 2009), p. 24.

10Mary Katzenstein and Mitali Nagrecha describe “a new punishment regime” that focuses on “fees and fines, conjoined with additional significant financial levies such as those that impose child support obligations on incarcerated fathers as well as victim restitution tools” (“a New Punishment Regime,” Criminology & Public Policy 10:3 (2011), p. 555).

11allen Feldman, “Securocratic wars of Public Safety,” Interventions: International Journal of Postcolonial Studies 6:3, pp. 330–35. i will further elaborate on this later in the article.

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Whereas the totalizing impact of the carceral state is not being disputed, there are subtle changes within the carceral state that can be obscured if not broken down into its constituent parts. Nowhere is this more evident than when it comes to the role of racism. For example, Michelle Alexander regards mass incarceration as a “stunningly comprehen- sive and well-disguised system of racialized social control” and urges “all those who care about social justice to fully commit themselves to dismantling this new racial caste sys- tem.”12 But ending mass incarceration will not necessarily lead to the elimination of a racial caste system. As aforementioned in the quote at the top of this article, Alexander herself notes how racial caste systems are replaceable. Whereas Alexander is sometimes suscep- tible to a crude functionalism, she nonetheless provides insight into the malleable nature of racism. I do not aim to provide an immanent critique of Alexander as so many others have rightfully and successfully done, but rather provide a revisionist reading of Alexander in the hopes of salvaging the autonomy and agency of the political that she herself has noted.13 Discerning the cross-cutting aspects of the carceral state enables me not only to identify recent changes that might otherwise be ignored or dismissed such as the recent reductions in mass incarceration, but also to take into account other phenomena, namely increases in the power and scope of law enforcement that might otherwise be seen as unrelated.

As the penal aspect of the carceral state decenters racism against blacks, the policing aspect of the carceral state re-centers racism against blacks.14 The divergence between the two is not coincidental but interrelated. It is reflective of changes to how policy-making is negotiated, social upheaval is managed, and policing is adjusted. There is now more of an onus on the controlling aspects associated with law enforcement and less on the enclosing characteristics of incarceration. This by no means suggests that incarceration will be com- pletely dismantled, but rather that the current decline in incarceration should not be seen as the end of the carceral state as much as its realignment.

The article is broken down in four parts. The first looks at the empirical data regarding mass incarceration and law enforcement. The second examines the political ways in which reductions in mass incarceration juxtapose with increases in policing. The third examines the social changes occurring and their impact on policing. I conclude with some comments on the resiliency of the carceral state. The politics surrounding the carceral state pits one aspect against another. Reductions in mass incarceration are coupled with increases in police powers. This shift from containment to surveillance reflects not only the preferences of pol- icy-makers but also how policing has adapted to demographic, discursive, and geographic changes. A more pluralist conception of the carceral state provides insight as to its flexibility

12alexander, New Jim Crow, pp. 4, 11. 13James Forman Jr., “Racial critiques of Mass incarceration: Beyond the New Jim crow,” NYU Journal of International Law

and Politics 87:21 (april 2012), pp. 22–69. 14as criminologist and political scientist Marie Gottschalk notes, even though “blacks have been and remain key targets of

the carceral state…the racial order continues to invent new ways to target blacks” (“critical trialogue: the carceral State,” Perspectives on Politics 13:3 (September 2015), p. 810). with that said, Gottschalk has been criticized for downplaying the role of race. For example, in a review of Gottschalk’s book Caught, Naomi Murakawa queries whether “Caught urges us to decenter analysis of racism from agendas to dismantle the carceral state?” (“critical trialogue: the carceral State,” Perspectives on Politics13: 3 (September 2015), p. 808). Picking up on Naomi Murakawa’s claim that Gottschalk might be decentering racism, i would contend that the penal aspect of the carceral state is in fact decentering racism against blacks without necessarily being less racist. the subtle shift involves an understanding of the carceral state as extending beyond impris- onment and including such aspects as policing.

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to adapt. The elasticity of the carceral state explains how it can dismantle one racial caste system while simultaneously providing for its replacement.

Part One: Examining the Numbers

The number of people imprisoned is declining. There were approximately 598,200 fewer people under the supervision of adult correctional systems in 2015 as compared to 2007.15 Not only are the numbers regarding incarceration going down, but the racial demographics of the incarcerated are changing as well. There were 68,700 fewer black people in prison in 2015 as compared to 2009. The percentage of black people in prison went from 36.6% of the total incarcerated population in 2009 to thirty-three percent in 2015. The imprisonment rate for blacks in 2009 was 2183 per 100,000 U.S. residents . In 2015, the rate reduced to 1745 per 100,000.16 The Washington Post reports that since 2000, there has been a forty-seven percent drop in the imprisonment rate of African American women and a twenty-two percent drop in the rate of African American men.17

There have also been dramatic reductions in employment and expenditures for correc- tional officers (Table 1). From 1979 to 2003, there was a 149% increase in people employed in corrections and correctional expenditures went up 957%. Contrast this with the period between 2009 and 2012 where there was a net decrease in both correctional employees and correctional expenditures.18

It is still too early to tell if these changes will continue and persist, yet there are reasons for optimism.19 Many different facets are coalescing simultaneously. Both political parties regard mass incarceration as increasingly problematic and are embracing policies that

15this includes those under jurisdiction of state or federal prisons, those held in local jails, and offenders living in the com- munity while supervised by probation or parole agencies. Bureau of Justice Statistics, correctional Populations in the United States, 2013, available online at: http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5177.

16Bureau of Justice Statistics, Prisoners in 2015, available online at: https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5869. 17Keith Humphreys, “there’s Been a Big Decline in the Black incarceration Rate, and almost Nobody’s Paying attention,”

Washington Post, February 10, 2016, available online at: https://www.washingtonpost.com/news/wonk/wp/2016/02/10/ almost-nobody-is-paying-attention-to-this-massive-change-in-criminal-justice/?postshare=1101455378467865&tid=ss_ fb-bottom.

18Bureau of Justice Statistics, Justice Expenditure and Employment Extracts, 2009-Final, available online at: http://www. bjs.gov/index.cfm?ty=pbdetail&iid=5048; Bureau of Justice Statistics, Justice Expenditure and Employment Extracts, 2012-Preliminary, available online at: http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5239.

19even after the electoral victory of Donald trump, many still believe criminal justice reform will continue. Bill Keller, “will 2017 Be the Year of criminal Justice Reform?,” The New York Times, December 16, 2016, available online at: http://www. nytimes.com/2016/12/16/opinion/will-2017-be-the-year-of-criminal-justice-reform.html?mabReward=R7&recp=4&ac- tion=click&pgtype=Homepage&region=ccolumn&module=Recommendation&src=rechp&wt.nav=Recengine.

Table 1. correctional employees & expenditures (1979–2003 & 2009–2012).

Data are from Bureau of Justice Statistics, Justice Expenditure and Employment Extracts, 2009-Final; http://www.bjs.gov/index. cfm?ty=pbdetail&iid=5048; Bureau of Justice Statistics, Justice Expenditure and Employment Extracts, 2012-Preliminary; http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5239.

1979 2003 Rate Change 2009 2012 Rate Change # of correctional

employees 284,668 748,250 149% 822,585 749,418 −8.9%

correctional expenditures

$5,996,332 $63,388,000 957% $81,651,835 $80,791,046 −1%

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emphasize non-punitive alternatives.20 The Supreme Court is increasingly evaluating mass incarceration as increasingly inhumane.21 Other actors operating within the judicial sys- tem, including overburdened defense attorneys, judges who feel constrained by rigid sentencing guidelines, and an increasingly growing number of prosecutors who do not feel it is in the public interest to lock so many people up, are also embracing reform.22 Opposition ranges across the ideological spectrum, from district attorneys to social move- ment activists and takes on many different forms, from fiscal overspending to moral repul- sion. Because of the various forms and agents of opposition, there is reason to believe that this growing impetus to reduce mass incarceration will be enduring, sustainable, and effective.23

There is a common misperception, however, that criminal justice reform includes both reductions in mass incarceration and policing, but that is not, in fact, the case. Whereas there was a net decrease in correctional employees and expenditures between 2009 and 2012, there was a net increase in police employees and expenditures during that same period (Table 2).

There also seems to be evidence that police use of deadly force is increasing. Various data-collecting sources, ranging from the Bureau of Justice Statistics’ arrest-related deaths, Federal Bureau of Investigation (FBI) Report on Justifiable Homicides by Law Enforcement,

20David Dagan and Steven teles, Prison Break (New York, NY: oxford University Press, 2016); trymaine lee, “america’s incarceration Problem Hits Bipartisan Sweet Spot,” MSNBC.com, March 28, 2015, available online at: http://www.msnbc. com/msnbc/incarceration-bipartisan-sweet-spot; Maya Rhodan, “obama calls for Sweeping criminal Justice Reforms in NaacP Speech,” Time, July 14, 2015, available online at: http://time.com/3958093/barack-obama-criminal-justice-re- forms-naacp/; Philip Bump, “Hillary clinton Hopes to Undo the Mass incarceration System Bill clinton Helped Build,” wash- ingtonpost.com, april 29, 2015, available online at: http://www.washingtonpost.com/blogs/the-fix/wp/2015/04/29/ hillary-clinton-hopes-to-undo-the-mass-incarceration-system-bill-clinton-helped-build/

21Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America (New York, NY: the New Press, 2014).

22Josh Sanburn, “Brooklyn Prosecutors won’t Puruse low-level Marijuana arrests,” time.com, July 8, 2014, available online at: http://time.com/2967834/brooklyn-marijuana-arrests-prosecution/; Mary wisniewski, “chicago Prosecutor Seeks to lessen Marijuana Penalties,” Reuters.com, april 1, 2015, available online at: http://www.reuters.com/article/2015/04/20/ us-usa-chicago-marijuana-idUSKBN0NB06H20150420; eric Holder, Jr. Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases. Memorandum, available online at: http:// www.jdsupra.com/legalnews/us-attorney-general-eric-hodlers-memora-07918/; eric Holder, Jr., Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association’s House of Delegates, San Francisco, CA. available online at: http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html

23there are others who think the current changes in mass incarceration are not qualitatively significant. See Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (Princeton, NJ: Princeton University Press, 2015); Daniel Denvir, “america’s Durable Monstrosity,” Jacobin Magazine, January 9, 2017, available online at: https://www.jacobinmag. com/2017/01/mass-incarceration-prison-bureau-justice-statistics/

Table 2.  correction employees and expenditures versus police employees and expenditures (2009–2012).

Data are from Bureau of Justice Statistics, Justice Expenditure and Employment Extracts, 2009-Final; http://www.bjs.gov/index. cfm?ty=pbdetail&iid=5048; Bureau of Justice Statistics, Justice Expenditure and Employment Extracts, 2012-Preliminary; http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5239.

2009 2012 Rate Change (2009–2012) # of Police employees 1,129,283 1,183,614 4.8% # of correctional employees 822,585 749,418 −8.9% Police expenditures $121,872,431 $126,434,125 3.7% correctional expenditures $81,651,835 $80,791,046 −1%

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non-governmental organizations including Fatal Encounters and KilledbyPolice. Net, and news sources such as The Guardian and Washington Post, report an increase in police use of force at the same time as prison rates have been declining. The Guardian newspaper, which is one of the news agencies collecting data on police use of deadly force, recently reported that “young black men again faced the highest rate of US police killings in 2016.”24 By no means is this recent surge in police use of deadly force unprecedented, but it does raise a question as to why there has been a spike as of late.25

If the data regarding police use of deadly force are correct, then the racial disparities between incarceration and police use of force have inverted. While the racial disparities of incarceration are slowly going down, the racial disparities of people killed by police are subtly trending up. Between 2012 to 2015, black incarceration rates went down five percent while police killings of blacks went up 2.2%.26 California exemplifies this trend in an even starker fashion. The Attorney General in California published data on police killings from 2005 to 2014. Black people accounted for approximately twenty-one percent of arrest-related deaths and seventeen percent of the arrested population.27 In other words, there is more of a racial disparity when it comes to arrest-related deaths than those arrested.

It is important to note however that the numbers regarding police use of deadly force are at best estimates.28 These inaccuracies are mainly due to police departments’ lack of reporting such data and the Department of Justice’s refusal to make data collection man- datory.29 Many investigations into the data-collecting techniques conclude that the numbers are most likely woefully underestimations.30 The data regarding police use of deadly force are by no means definitive. It is nonetheless suggestive of a broader trend that, when coupled with the budget and employment numbers, evokes an inquiry as to the relationship between prisons and police.

Political Support for Law Enforcement

Although the data are far from certain, there are nevertheless various political and legal explanations for the disparity between incarceration and law enforcement. Even though conservatives increasingly take on criminal justice reform, their support does not carry

24Jon Swaine and ciara Mccarthy, “Young Black Men again Faced Highest Rate of US Police Killings in 2016,” Guardian.Com, January 8, 2017, available online at: https://www.theguardian.com/us-news/2017/jan/08/the-counted-police-killings-2016- young-black-men.

25Fatalencounters.org reports that in 2000, there were 597 people killed by police. in 2013, there were 1,718 people killed by police. that is a 288% increase in thirteen years.

26information regarding police killings was tabulated via fatalencounters.org and the information regarding incarceration rates was tabulated using the Bureau of Justice statistics.

27california Department of Justice, Open Justice: Death in Custody & Arrest Related Deaths, 2005–2014, available online at: http://openjustice.doj.ca.gov/death-in-custody/arrest-related.

28tom Mccarthy, “the Uncounted: why the US can’t Keep track of People Killed by Police,” Guardian.com, March 18, 2015, available online at: https://www.theguardian.com/us-news/2015/mar/18/police-killings-government-data-count.

29Mark tran, “FBi chief: “Unacceptable” that Guardian has Better Data on Police Violence,” Guardian.com, october 8, 2015, available online at: https://www.theguardian.com/us-news/2015/oct/08/fbi-chief-says-ridiculous-guardian-washington-post- better-information-police-shootings.

30a report put out by the Bureau of Justice Statistics stated that, “an estimated 28% of the law enforcement homicides in the United States are not captured” (Duren Banks, lance couzens, caroline Blanton and Devon crib, “arrest-Related Deaths Program assessment: technical Report,” Bureau of Justice Statistics, March 2015, available online at: http://www.bjs.gov/ content/pub/pdf/ardpatr.pdf. Patrick Ball, “Violence in Blue,” Granta.com, March 4, 2016, available online at: http://granta. com/violence-in-blue/. Rob Barry and coulter Jones, “Hundreds of Police Killings are Uncounted in Federal Stats,” Wall Street Journal, December 3, 2014, available online at: http://www.wsj.com/articles/hundreds-of-police-killings-are- uncounted-in-federal-statistics-1417577504.

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over to issues of police abuse. The National Review reports that “many conservatives have come to see any criticism of police conduct, or any allegation of racism, as if it were a play by the opposing team. They duly boo.”31 Republicans generally side with law enforce- ment. The few Democrats that do find some aspects of law enforcement problematic are nonetheless hamstrung by cross-cutting influences. Journalist Radley Balko states that while “Republicans rarely cross [the police] because of the party’s law-and-order repu- tation…Democrats don’t cross them because of the traditional alliance of unions and public employees.”32 Take Los Angeles for example. Police officers now use body cameras, but the Democratic controlled state legislature has passed laws that make investigations into police misconduct sealed from public view.33 After calling for accountability and transparency, Democratic Mayor Muriel Bowser of the District of Columbia subsequently moved to exempt all body-camera footage from the city’s open-records law.34 She also wants to expand the power of law enforcement officials.35 In New York City, following the protests surrounding the death of Eric Garner, Democratic Mayor Bill de Blasio added more police.36

Although the Supreme Court increasingly embraces prison reform, it remains steadfast in its support of police discretion. In Terry v. Ohio (1968), the Court ruled that police can stop and frisk an individual without probable cause.37 In City of Los Angeles v. Lyons (1983), the Court could use chokeholds.38 In Whren v. United States (1996), the Court ruled that officers may use minor violations as pretext to seek evidence of more serious criminal wrongdoing.39 Heien v. North Carolina extended police discretion even further. Heien v. North Carolina is a 2014 case that rendered a government official’s misinterpretation of the law as reasonable. Dahlia Lithwick notes that Heien “is crucially important if not particularly illuminating, adding yet another layer of ambiguity about the boundaries on policing at precisely the moment in which more ambiguity is what we don’t need.”40 The Supreme Court has also weighed in on the issue of police use of deadly force. In City of Los Angeles v. Lyons (1983), the Court overturned a lower court decision that ordered the Los Angeles Police Department (LAPD) to stop using chokeholds unless an officer was threatened with death or serious injury.41 Unlike prison reform where the Court seems to be providing a path toward justice, when it

31Jason lee Steorts, “the Ferguson Report and the Right,” National Review, March 13, 2015, available online at: http://www. nationalreview.com/corner/415349/ferguson-report-and-right-jason-lee-steorts.

32Radley Balko, The Rise of the Warrior Cop: The Militarization of America’s Police Forces (New York, NY: Public affairs, 2014), p. 330.

33Jim Miller, “california has tightest Restrictions on law-enforcement Records, access advocates Say,” Modesto Bee, March 27, 2014, available online at: http://www.modbee.com/news/state/article3162015.html.

34Robinson Meyer, “what Good is a Video You can’t See” The Atlantic, april 26, 2015, available online at: http://www.theat- lantic.com/technology/archive/2015/04/what-good-is-a-video-you-cant-see/391421/.

35Perry Stein and abigail Hauslohner, “Bowser News conference Disrupted by Black lives Matter Protestors,” Washington Post, august 26, 2015, available online at: http://www.washingtonpost.com/news/local/wp/2015/08/26/black-lives-matter- organizers-rallying-d-c-to-speak-out-against-mayors-proposed-police-agenda/.

36Michael Grynbaum and Matt Flegenheimer, “Mayor de Blasio Poised to Hire Nearly 1,300 Police officers,” The New York Times, June 22, 2015, available online at: http://www.nytimes.com/2015/06/23/nyregion/mayor-de-blasio-poised-to-hire- hundreds-of-police-officers.html?_r=0.

37Terry v. Ohio, 392 U.S. 1 (1968). 38City of Los Angeles v. Lyons, 461 U.S. 95 (1983). 39Whren v. United States, 517 U.S. 806 (1996). 40Dahlia lithwick, “the Supreme court ignores the lessons of Ferguson,” Slate.com, December 16, 2014, available online at:

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/12/heien_v_north_carolina_as_the_rest_of_the_ country_worries_about_police_overreach.html.

41City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

NEW POLITICAL SCIENCE 205

comes to police use of deadly force, the Court instead provides “a series of obstacles”42 that in effect, “protects bad cops.”43

Previously, it was prosecutorial discretion that primarily drove the carceral state. According to criminologists like Jonathan Simon,

the various forms of mandatory sentencing schemes have made the prosecutor’s determinations of criminal charges the dominant influence on the ultimate prison sentence…one of the most important officials in local government with tremendous potential to affect the lives of citizens.44

The central role of prosecutors to determine criminal charges had been the pervasive element in the increased use of the death penalty and the concomitant rise of mass incarceration.

The discretion provided to prosecutors however is diminishing. The reduced role of pros- ecutors can be seen in the decline of death penalty executions, the elimination of mandatory minimums, and efforts to decriminalize nonviolent, minor offenses.45 Calls to address the “overburdened defense bar” are also leading to a reduced role for prosecutors.46

Even though the primacy of the prosecutor is no longer the dominant factor, prosecu- tors nevertheless still retain a high degree of discretion, which is being increasingly utilized to uphold and sanction police misconduct. Convicting a police officer is next to impossible. As Amy Lerman and Vesla Weaver observed, “district attorneys are reluctant to prosecute, lawyers are reluctant to represent plaintiffs with criminal histories, juries are reluctant to hold police accountable, and cities mount aggressive defenses in cases against their police forces.”47 The very discretion given to prosecutors that had been maximized to detain an inordinate amount of people is the very same used to shield police indiscretion. The powers to inflict punishment are now being used to escape punishment. Whereas prisons have recently come under scrutiny, the same cannot be said of police misconduct. In regards to mass incarceration, it seems to be increasingly under the purview of judicial and legal activism while police indiscretion is mainly dealt with via judicial and legal accommodation.

Part Two: The Politics of Divergence

Divergence between prisons and police results from policy-making. The inverse relationship between police and prisons is predicated on three factors: an unintended consequence of

42chase Madar, “why it’s impossible to indict a cop,” thenation.com, November 25, 2014, available online at: http://www. thenation.com/article/190937/why-its-impossible-indict-cop.

43erwin chemerinsky, “How the Supreme court Protects Bad cops,” The New York Times, august 26, 2014, available online at: http://mobile.nytimes.com/2014/08/27/opinion/how-the-supreme-court-protects-bad-cops.html?_r=0.

44Jonathan Simon, Governing through Crime (oxford, UK: oxford University Press, 2007), p. 35–36, emphasis added. 45Dan Roberts, “eric Holder calls for criminal Justice Reforms aimed at easing Drug Sentences,” The Guardian, august 12, 2013,

available online at: http://www.theguardian.com/world/2013/aug/12/eric-holder-prison-reform-mandatory-minimums; Jamelle Bouie, “Delayed Justice,” Slate.Com, January 16, 2015, available online at: http://www.slate.com/articles/news_and_ politics/politics/2015/01/attorney_general_eric_holder_ending_justice_department_s_civil_asset_forfeiture.html; Matt Ford, “the Death Penalty Becomes Rare,” The Atlantic, april 20, 2015, available online at: http://www.theatlantic.com/politics/ archive/2015/04/the-death-penalty-becomes-unusual/390867/; alexandra Natapoff, “Misdemeanor Decriminalization.”

46Jenny Roberts notes that “a profound crisis exists in the lower courts, brought about by a widespread lack of zealous rep- resentation for indigent people charged with misdemeanors. Many individuals charged with low-level crimes receive representation from defense attorneys with overwhelming caseloads” (“why Misdemeanors Matter: Defining effective advocacy in the lower criminal courts,” UC Davis Law Review 45 (2011), p. 277.

47amy lerman and Vesla weaver, Arresting Citizenship: The Democratic Consequences of American Crime Control (chicago, il: University of chicago Press, 2014), p. 68.

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policies intended to reduce mass incarceration, the explicit zero-sum nature of bipartisan policy-making, and the redirection of demands made by social movements. Each points to how dismantling one aspect of the carceral state can reinforce another aspect.

The differences between incarceration and policing are increasingly becoming an inverse one, in part because popular policies to curb mass incarceration, such as misdemeanor decriminalization and banishment techniques, concomitantly expand police discretion. By redefining certain offenses as no longer jailable offenses, the right to counsel no longer is required. As Alexandra Natapoff notes,

decriminalization eliminates traditional procedural hurdles that constrain law enforcement actors –the need for formal arrest, judicial hearings and the adversarial process more generally… Wide police discretion and thin adversarial checks mean that the dangers of police profiling are at their height.48 In regards to banishment techniques, these non-punitive alternatives to arrest and incarceration, according to Beckett and Herbert ‘increase the power, authority and discretion of the police’ by ‘lowering the bar of probable cause’ and ‘getting people into the system.‘49 Because many of these techniques are defined as civil instead of criminal acts, the police do not have to provide any evidence of wrongdoing and citizens’ ability to contest such allegations are drastically reduced. According to Beckett and Herbert, banishment ‘expands the police’s capacity to exclude the unwanted.’50

This increasing reliance on the police is usurping the central role of the judicial process. Beckett and Herbert interviewed a public defender who confessed, “the court process is really pretty irrelevant to the fundamentals.” Another public defender stated that police officers “are essentially law makers out there acting on whatever arbitrary instinct they have.”51 This police profiling might not lead to incarceration, but it can still lead to dangerous results. Amy Lerman and Vesla Weaver conclude that even though a vast majority of police stops do not result in criminal arrest, they can nevertheless still result in a “totalizing sense of political alienation.”52

Zero-Sum Nature of Bipartisan Policy-Makers

Whereas some policies meant to reduce rates of imprisonment unintentionally increase police discretion, other policies deliberately connect the two. Republican Congressman Jim Sensenbrenner from Wisconsin introduced a bill known as the SAFE Justice Act that calls for reforms to reduce the number of people incarcerated. The bill also includes twenty-six meas- ures to increase and expand funding to local law enforcement. The preamble of the bill foregrounds the explicit linkages between prison reform and law enforcement:

To improve public safety, accountability, transparency, and respect for federalism in Federal criminal law by applying the findings of the bipartisan Over-Criminalization Task Force and evidence-based reforms already made by some States, and reinvesting the resulting savings from doing so in additional evidence-based criminal justice strategies that are proven to reduce recidivism and crime, and the burden of the criminal justice system on the taxpayer.53

48alexandra Natapoff, “Misdemeanor Decriminalization,” Vanderbilt Law Review 68:4 (2015), p. 44. 49Katherine Beckett and Steve Herbert, Banishment: The New Social Control in Urban America (oxford, UK: oxford University

Press, 2009), pp. 61, 97, 99. 50Beckett and Herbert, p. 95. 51ibid., 148–149. 52amy lerman and Vesla weaver, Arresting Citizenship (2014), p. 15. 53H.R. 2944—SaFe Justice Reinvestment act of 2015, available online at: https://www.congress.gov/bill/114th-congress/

house-bill/2944?q=%7B%22search%22%3a%5B%22%5c%22hr2944%5c%22%22%5D%7D (emphasis added).

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In an interview on PBS regarding a bill that would overhaul federal sentencing for nonviolent drug offenders, Democratic Senator Cory Booker from New Jersey states,

The absurdities in this system [of incarceration] that is costing taxpayers a quarter a trillion of dollars a year, paying for a broken system when we know we need to make those investments in law enforcement, counter-terrorism and building roads and bridges. This is a bill that can be celebrated from all sectors of our society, whether you are a liberal or a conservative. This is a time for celebrating smart government that is going to make sure that we can keep us safer.54

It is not enough to describe the massive expenditures geared toward mass incarceration as absurd; it must also be the case that the money saved in cutting those very expenditures be used to make us safer.

President Obama delivered a similar message. In his speech to the International Association of Chiefs of Police, Obama not only linked the problems facing law enforcement and mass incarceration together, but also juxtaposed them in a manner that reinforces the connection that Sensenbrenner and Booker articulated: “I want to focus on fundamentally reforming our criminal justice system to make it smarter and fairer, and easier for your officers to do their jobs safely and effectively.”55 Smarter and fairer involve reductions in mass incarceration and the money saved in cutting expenditures to prisons can then be used to help law enforcement: “Let’s take some of the $80 billion we spend each year to keep people locked up… and use that money to help law enforcement go after drug kingpins, and violent gangs and terrorists.”56 Connecting mass incarceration with law enforcement in this manner con- structs an inverse relationship that artificially links the fairness of punishment with the inter- ests of law enforcement.

Harvard Law Professor William Stuntz makes explicit this zero-sum connection between corrections and police. In the chapter entitled “Fixing a Broken System” in his book, The Collapse of American Criminal Justice, Stuntz argues that one of the primary ways of reducing imprisonment rates is by hiring more police officers: “more cops on city street corners tend to mean fewer inmates in prison cells.”57 Stuntz writes that the authors of the broken windows theory “captured an important part of the payoff ” when policing is extended beyond simply making arrests.58 The zero-sum game that Stuntz is purporting suggests that resistance to mass incarceration necessarily entails support for increased law enforcement. Molly Gill, government affairs counsel at Families Against Mandatory Minimums, also makes a similar connection:

We’ve cut law enforcement because we’re spending this money on people who don’t need to be in prison for five or 10 years. We’re really not any safer by doing this. We are not safer when we are locking up this many nonviolent drug offenders and not spending money on things that really do stop crime from happening, like having a police officer on the corner.59

The more that is invested in law enforcement, the fewer prisoners there will be and the safer the general public will be. This kind of argumentation further obscures the dangerous threat

54interview on PBS Newshour, october 1, 2015, available online at: http://www.pbs.org/newshour/bb/bipartisan-re- form-bill-aims-fix-minimum-mandatory-sentences/ (emphasis added).

55Barack obama, “Remarks by the President at the 122nd annual iacP conference,” Mccormick Place, chicago, il, october 27, 2015, available online at: https://www.whitehouse.gov/the-press-office/2015/10/27/remarks-president-122nd-annual- iacp-conference

56ibid. 57william Stuntz, The Collapse of American Criminal Justice (cambridge, Ma: Harvard University, Belknap Press, 2011), p. 288. 58ibid., 292. 59Victoria law, “after obama clemencies, activists Question Scope of Bipartisan Prison “Reform,”” truthout.com, July 15, 2015,

available online at: http://www.truth-out.org/news/item/31903-after-obama-clemencies-activists-question-scope-of- bipartisan-prison-reform/.

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that law enforcement oftentimes poses to communities of color. Political compromises of this sort provide opportunities to address one wrong but possibly come at the expense of legitimating another wrong.

Political Redirection of Social Movements

Whereas policies to reduce mass incarceration either unintentionally or deliberately expand the power of law enforcement, it is also the case that in response to incidents involving police use of deadly force, reforms are often directed toward reducing incarceration as opposed to qualitative changes in police discretion. In Ferguson, Missouri, for example, where Michael Brown was killed by a police officer, reforms include the restoration of sus- pended and revoked driver’s licenses, the withdrawal of city arrest warrants, and new limits on traffic violations as a source of revenue. As Thomas Harvey, Executive Director of a non- profit legal advocacy group in Ferguson stated, “In spite of all the publicity and discussions about policing, you still never got to any meaningful reform about policing.”60 Other states have also responded accordingly. Even though legislators from at least twenty-four states have passed new measures in response to the aftermath following the shooting of Michael Brown, very few “have done anything to change their laws on when police are justified to use deadly force.”61 Leaders in law enforcement have also recently expressed their support for prison reform. More than one hundred thirty current and former police chiefs, federal and state chief prosecutors, and attorneys general from all fifty states have joined together to call for an end to unnecessary, widespread incarceration.62 But as Leon Neyfakh notes: “Absent from their vision is any mention of the vast discretion that police departments and prosecutors’ offices have in deciding who to arrest, and what kind of charges, release con- ditions, and prison sentences to push for in court.”63 Whether as an unintended consequence of policies, the compromising basis of bipartisanship or the manipulative ways in which the state redirects demands made by social movements, each nevertheless points to how dis- mantling one aspect of the carceral state can reinforce another aspect.

Part Three: Policing After 9/11 and the 2007 Recession

Whereas the previous section outlined the political project of intertwining prison reform with the aggrandizement of police powers, this section provides some explanations for why. There are three main reasons for the reconfiguration of the carceral state: the shift of empha- sis from enclosure to control, the militarization of the police that prioritizes preventive secu- rity, and the destabilization of race and space following the 2007 Recession.

60Suzy Khimm, “in the end…No on Really cared” The New Republic, august 6, 2015, available online at: http://www.newre- public.com/article/122480/end-no-one-really-cared.

61David lieb, “Ferguson Spurs 40 New State Measures; activists want More,” Seattle Times, august 3, 2015, available online at: http://www.seattletimes.com/nation-world/ferguson-spurs-40-new-state-measures-activists-want-more/. it is also important to note that this is occurring within a context wherein many state legislators have already passed the “law enforcement officer bill of rights” that provides police officers extra protections when investigated for abuse of force. walter olson, “Police Misconduct and “law enforcement officers” Bill of Rights’ laws,” Cato institute, april 24, 2015, available online at: http://www.cato.org/blog/police-misconduct-law-enforcement-officers-bill-rights.

62law enforcement leaders to Reduce crime and incarceration, Statement on Principles, october 21, 2015, available online at: http://lawenforcementleaders.org/wp-content/uploads/2015/10/Statement_of_Principles.pdf.

63leon Neyfakh, “top Police and Prosecutors condemn Mass incarceration,” slate.com, october 23, 2015, available online at: http://www.slate.com/articles/news_and_politics/crime/2015/10/police_and_prosecutors_condemning_mass_incarcer- ation_ignore_their_own_role.html.

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Philosophers foretold the expansion of the carceral state beyond imprisonment. In 1977, French philosopher Michel Foucault published Discipline and Punish in which he stated, “the carceral archipelago transported this [penitentiary] technique from the penal institution to the entire social body.”64 In 1992, Giles Deleuze further expounded on Foucault’s notion and detailed the emergence of a new dispersed installation of domination, one that is more focused on control: “Enclosures are molds, distinct castings, but controls are a modulation, like a self-deforming cast that will continuously change from one moment to other, or like a sieve whose mesh will transmute from point to point.”65 This shift from enclosure to control puts more of an emphasis on law enforcement to surveil the general public.

Technologically, the capacity now exists to extend such control. Stephen Graham has studied the state’s obsession with “technological omniscience,” that signals the “startling militarization of civil society—the extension of military ideas of tracking, identification and targeting into the quotidian spaces and circulations of everyday life.”66 By December 31, 2012, the Department of Justice reported that the total number of persons with a criminal history file was 100,596,300, of which 94,434,600 are automated reports.67 The population of the United States is 318.9 million. In other words, approximately one-third of all Americans have a criminal history file. The American Civil Liberties Union (ACLU) has reported on the use of stingrays, which are invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information.68 When used to track a suspect’s cell phone, these stingrays gather information of countless other bystanders who happen to be nearby, for which the police department are not obliged to get a warrant. Propublica found the use of mobile X-ray vans that enable police officers to look through walls and sides of trucks.69 Not only do these vans expose people unknowingly to ionizing radiation, they also are major breaches of pri- vacy. Perhaps even more insidious is the use of predictive policing, which refers to the use of analytical techniques to predict criminal activity.70 Sally Howell and Andrew Shyrock point to an example of the anachronistic notion of incarceration in this new age of surveillance:

In the age of credit cards, cell phones and computers, Arabs and Muslims in America do not need to be rounded up en masse and held in detention camps, as Japanese Americans were during World War II. Instead, they can be placed under a tactically flexible ‘house arrest,’ monitored in the privacy of their homes or as they move about the country, their purchases, financial transactions, intellectual interests, and personal contacts tabulated, their bodies examined each time they board a plane or enter a federal building.71

64Michel Foucault, Discipline and Punish: The Birth of the Prison (New York, NY: Vintage Books, 1995), p. 298. 65Giles Deleuze, “Postscript on the Societies of control,” October 59: winter (1992), p. 4. 66Stephen Graham, Cities under Siege: The New Military Urbanism (london, UK: Verso, 2010). 67U.S. Department of Justice, Survey of State Criminal History Information Systems, 2012, available online at: https://www.

ncjrs.gov/pdffiles1/bjs/grants/244563.pdf. 68american civil liberties Union, “Stingray tracking Devices: who’s Got them?,” available online at: https://www.aclu.org/

map/stingray-tracking-devices-whos-got-them. 69Michael Grabell, “Drive-by Scanning: officials expand Use and Dose of Radiation for Security Screening,” Propublic.org,

January 27, 2012, available online at: https://www.propublica.org/article/drive-by-scanning-officials-expand-use-and- dose-of-radiation-for-security-s; conor Friedersdorf, “the NYPD is Using Mobile X-ray Vans to Spy on Unknown targets,” theatlantic.com, october 19, 2015, available online at: http://www.theatlantic.com/politics/archive/2015/10/ the-nypd-is-using-mobile-x-rays-to-spy-on-unknown-targets/411181/.

70Sarah Brayne, alex Rosenblat and Danah Boyd, “Predictive Policing,” Data and Civil Rights: A New Era of Policing and Justice, october 27, 2015, available online at: http://www.datacivilrights.org/pubs/2015–1027/Predictive_Policing.pdf.

71Sally Howell and andrew Shryock, “cracking Down on Diaspora: arab Detroit and america’s war on terror,” Anthropological Quarterly 76:3 (2003), p. 440.

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None of these technological innovations necessarily result in more arrests, but it does reflect “next generation net-widening,” which involves enlarging the reach of the state even as it softens the impact.72 For example, in their investigation of the NYPD, Vitale and Jefferson state: “New York City’s relatively low incarceration rates over the past quarter century must be understood in relation to correlative increases in police activity in everyday public life.”73

Contemporary Shifts in Policing

Although Foucault and Deleuze’s conception of the unfolding of the carceral continuum over time is revealing, it is nonetheless important to situate it within the context of a growing militarized approach to policing that is increasingly decoupled from incarceration. In 1997, the Department of Justice and Department of Defense issued a joint report that indicated that distinctions between the police and the military were eroding.74 Investigative journalist Radley Balko went so far as to argue that “the military is more accountable and disciplined than many police departments today. The police today may be more militarized than the military.”75 The increasing militarization of the police is concomitant with its growing expan- sion. Whereas the existence of SWAT dates back to 1967, the proliferation of SWAT teams has recently blossomed to the extent that it is no longer isolated in key metropolitan areas and is now in places like Ferguson, Missouri.76

Karena Rahall has studied various federal programs that fund and incentivize police mil- itarization. She refers to it as the green-to-blue pipeline.77 The militarized equipment that police departments increasingly buy are more lethal and, as such, less conducive to arresting and detaining as they are in killing: “militarization in both tactics and equipment has led to an escalation in violent encounters between citizens and police.”78 For example, Rahall found that “approximately 500 police departments have received MRAPs (mine resistant ambush protected) so far. They all must put them to use in some way within a year of acquisition.”79 According to Rahall, the green-to-blue pipeline leads to a qualitative shift in policing, “trans- forming the traditional police mandate of protecting and serving into one of engaging and defeating.”80 The changing role of the police thus involves playing a more active role that does not necessarily equate to more arrests and imprisonment.

72alexandra Natapoff, “Misdemeanor Decriminalization,” p. 1059. 73Vitale and Jefferson, “the emergence of command and control Policing,” p. 171. 74US Department of Justice, National institute of Justice, “Department of Justice and Department of Defense Joint technology

Program: Second anniversary Report” (February 1997). on Page 2 of the report, it states, “although performing different functions, law enforcement and the military perform many of the same tasks…often law enforcement and the military may also participate in the same missions. Such interagency efforts include waging the war against drugs, countering terrorism and espionage, and providing disaster relief.” available online at: https://www.ncjrs.gov/pdffiles/164268.pdf.

75Radley Balko, The Rise of the Warrior Cop: The Militarization of America’s Police Forces (Public affairs, 2014), p. 335; conor Friedersdorf, “an NYPD Unit armed to Face terrorists-and Protestors: the Militarization of Police intensifies in New York city,” theatlantic.com, January 30, 2015, available online at: http://www.theatlantic.com/national/archive/2015/01/ heavily-armed-nypd-cops-to-stop-terroristsand-protestors/385011/.

76Radley Balko chronicles how the percentage of towns between twenty-five thousand and fifty thousand people with a Swat team has risen from 25.6 percent in 1984 to eight percent in 2005. He also notes the following agencies that have used Swat teams: U.S. Fish and wildlife Service, consumer Product Safety commission, National aeronautics and Space administration, Department of education, Department of Health and Human Services, U.S. National Park Service and the Food and Drug administration (Balko, p. 308). “with wars in afghanistan and iraq drawing down and defense contractors seeking a new market, domestic militarization has undergone an expansion” (Rahall, p. 1788).

77Karena Rahall, “the Green to Blue Pipeline: Defense contractors and the Police industrial complex,” Cardozo Law Review, 36 (2015), pp. 1785–1835.

78ibid., 1788. 79ibid., 1793. 80ibid., 1785.

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The war on terror has also profoundly impacted the militarized techniques of the police. In describing the impact of the war on terrorism on the law, Rens Van Munster states that there is a “shift from defense to prevention, re-action to pro-action, deterrence to intelligence, and events to eventualities.”81 It is no longer enough to be able to lock people up after they commit criminal acts; they now need to be stopped before even committing crimes: “pre- ventive security is virtual security: it is one step further away from danger in its potentiality.”82 Even though potentiality does not rise to the level of criminal sanction, it does involve a heightened sense of police activity. Urban policy expert Stephen Graham notices that “there is something driving an attitudinal shift among police, en masse—zealous overreaction even to minor disturbances,”83 which has “brought the logic of pre-emption into the most mundane and prosaic spaces.”84 For example, he states that “residents of gated enclaves within hyper-unequal societies routinely use extralegal force against people seen as trans- gressing their boundaries.”85 Extralegal force is key here if only because many of these trans- gressions are not criminal in nature and thus do not meet the legal standards for prosecution. The decoupling of policing and incarceration thus lowers the threshold for police engage- ment and increases the scope of police activity.

It is not coincidental that this shift in policing is disproportionately impacting people of color.86 African Americans have tragically often been the proverbial canaries in the coal mine in that they are usually the first ones targeted when a shift in political violence occurs.87 As the context for policing shifts toward growing militarization and an emphasis on pre-emp- tion, black bodies have become the focus onto which insecurity and fears are directed. Pre-emptive lethal action involves a response to a threat that has not yet occurred. Justifying such proactive retaliation would typically be considered a violation if universally applied. Selective application hence is key. Foucault understood this: “if the power of normalization wished to exercise the old sovereign right to kill, it must become racist.”88 Racism, or better yet racecraft, facilitates a disjunction between the violation of norms and the normalization of violence.89 Expanding the scope of police powers while simultaneously lowering the threshold for police involvement coheres if blackness is understood as an inherent threat.

81Rens Van Munster, “the war on terrorism: when the exception Becomes the Rule,” International Journal for the Semiotics of Law 17:2 (2002), p. 147.

82Van Munster, p. 147. 83Graham, Cities Under Siege, p. 22. 84ibid., 125. 85ibid., 109. 86Stephen Graham notes that transgressors of the gated enclaves are often people of color (Cities Under Siege, p. 74). Spencer

ackerman has chronicled the ways in which tactics usually associated with the war on terror has informed and has been informed by law enforcement tactics used by the chicago Police Department against mainly young black men (“the Disappeared: chicago Police Detain americans at abuse-laden “Black Site,”” theguardian.com, February 24, 2015, available online at: http://www.theguardian.com/us-news/2015/feb/24/chicago-police-detain-americans-black-site; and “Bad lieutenant: american Police Brutality, exported from chicago to Guantanamo,” theguardian.com, February 18, 2015, avail- able online at: http://www.theguardian.com/us-news/2015/feb/18/american-police-brutality-chicago-guantanamo). andrew o’Herir also chronicles the similarities between the foreign policy regarding terrorism and the domestic policies regarding killer cops (“Killer cops, Drone wars and the crisis of Democracy,” salon.com, December 6, 2014, available online at: http://www.salon.com/2014/12/06/killer_cops_drone_wars_and_the_crisis_of_democracy/; see also, arthur Rizer and Joseph Hartman, “How the war on terror has Militarized the Police,” theatlantic.com, November 7, 2011, available online at: http://www.theatlantic.com/national/archive/2011/11/how-the-war-on-terror-has-militarized-the-police/248047/.

87Melissa Harris-Perry, “are we all Black americans Now?,” The Nation, March 30, 2011, available online at: https://www. thenation.com/article/are-we-all-black-americans-now/.

88Michel Foucault, Society Must be Defended, Mauro Bertani and alessandro Fontana (eds) (New York, NY: Picador, 1997), p. 256.

89Karen Fields and Barbara Fields, Racecraft: The Soul of Inequality in American Life (london, UK: Verso, 2014).

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The historical “condemnation of blackness” provides a convenient shorthand that legitimates violent policing.90

It is important to note however that previous associations of blackness with criminality have taken a further turn beyond specific kinds of law-breaking (such as vagrancy, theft, or rape) and is being subtly reconstructed as pure threat rather than just criminality. As Jamelle Bouie notes,

It’s the fear that’s most striking. [Darren] Wilson was trained, armed, and empowered with the force of law. At almost any point in his confrontation with [Michael] Brown, he could have called for backup and won control of the situation. But, he says, he was too gripped with terror to do anything but shoot. The same was true for [George] Zimmerman, and the same was true for Michael Dunn, the man who killed Jordan Davis in a Jacksonville, Florida parking lot.91

Because the acuteness of the danger has been ratcheted up to that of existential survival, the emphasis has shifted from the actions that black people have actually committed to the possibilities of what they might do. Robin Kelley perhaps sums it up the best: “those targeted by the state are not rights-being individuals to be protected but criminals poised to violate the law who thus require vigilant watch.”92

Race is hence being incorporated into the logic of security that is the new police state. Law enforcement officials are increasingly authorized to police in a deeply coercive way against any perceived threat, where the perception of threat does not need to link to any objective perceptions, partly because it is less tied to imprisonment. That is the essence of the security state—if I feel unsafe, then the state should protect me, even if the threat is trivial or non-existent. In this context, blacks have become perceived as dangerous because of their pure difference, not because of anything they have actually done. In an article for The New York Times Magazine entitled “The Condition of Black Life is One of Mourning,” Claudia Rankine wrote,

as a black person you can be killed for simply being black: no hands in your pockets, no playing music, no sudden movements, no driving your car, no walking at night, no walking in the day, no turning onto this street, no entering this building, no standing your ground, no standing here, no standing there, no talking back, no playing with toy guns, no living while black.”93

Being black is enough to justify pre-emptive force. As President Obama said, “Trayvon Martin could have been me.”94 The war on terror had two distinct impacts on policing: (1) the mili- tarization of the police was a direct consequence of the drawdown of the wars in Iraq and Afghanistan and (2) the discursive logic of pre-emption was imported into domestic policing. Racism was the social lubricant that facilitated both of these changes.

90Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime and the Making of Modern Urban America (cambridge, Ma: Harvard University Press, 2010).

91Jamelle Bouie, “Michael Brown wasn’t a Superhuman Demon,” Slate, November 26, 2014, available online at: http://www. slate.com/articles/news_and_politics/politics/2014/11/darren_wilson_s_racial_portrayal_of_michael_brown_as_a_super- human_demon.html.

92Robin Kelley, “thug Nation,” in Policing the Planet: Why the Policing Crisis Led to Black Lives Matter, Jordan t. camp and christina Heatherton (eds), (New York, NY: Verso Press, 2016), p. 29.

93claudia Rankine, “the condition of Black life is one of Mourning,” The New York Times Magazine, June 22, 2015, available online at: http://www.nytimes.com/2015/06/22/magazine/the-condition-of-black-life-is-one-of-mourning.html.

94tom cohen, “obama: “trayvon Martin could Have Been Me,”” cnn.com, July 19, 2013, available online at: http://www.cnn. com/2013/07/19/politics/obama-zimmerman/.

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Impact of Demographic Changes on Policing

The 2007 Recession further complicated matters by blurring previously constituted racialized boundaries, thereby heightening fears of local residents as well as catalyzing a reformulation of how law enforcement police space. Following the 2007 Recession, there was a transfor- mational shift in where Americans lived. In 2011, for the first time in nearly a hundred years, the population in urban centers has outpaced the population living in the suburbs. According to Leigh Gallagher, this reversal is not an anomaly but “a new normal.”95

This new normal is not simply a matter of numbers, but also demographics. Alan Ehrenhalt calls it a “demographic inversion: the poor and newcomers are living on the outskirts. The people who live near the center are those, some of them black or Hispanic but most of them white, who can afford to do so.”96 There is a combination of push-pull factors that simulta- neously pull affluent people into the urban center and push poor people, particularly of color, out of the urban areas: “the deindustrialization of the central city, for all the tragic human dislocations, has eliminated many of the things that made affluent people want to move away from it during much of the twentieth century.”97 For example, in an article entitled, “The End of Gangs” Sam Quinones notes:

In the Highland Park district of Los Angeles, gentrification over the last decade has pushed gang families out of the area to towns where they have few connections. The La Rana neighborhood of Torrance, which spawned the Grajedas, a family of numerous gang members and three members of the Mexican Mafia, is now a business park. An extended family of Toonerville gang members once lived in several houses on two blocks on Bemis Street in the Atwater Village District. Now, those who aren’t dead or in prison have moved to Redlands, 60 miles east….This has created the only-in-LA phenomenon of commuter gangs; guys who drive a long way to be with their homies at the corner where the gang began.98

The phenomenon that Quinones details in Los Angeles is indicative of a broader, national trend. According to Gallagher, “the suburbs are now home to the largest and fastest-growing poor population in the country.”99 There are even state and federal programs that encourage affordable housing development in suburban neighborhoods.100

An example of racial out-migration is Sanford, Florida where Trayvon Martin was shot. Houses that in 2007 sold for around $250,000 sold for about half that price in 2008. Florida had the steepest decline in real median household income in the nation. It fell by $1,860 to $47,800. Florida also experienced the third biggest falloff in home values. House values fell 8.6 percent. Before getting shot, Martin reportedly walked by a dozen storefronts, four of

95leigh Gallagher, The End of the Suburbs (New York, NY: Portfolio, 2013), p. 8. 96alan ehrenhalt, The Great Inversion and the Future of the American City (New York, NY: Vintage Books, 2013), p. 4. See

also Karen Narefsky, “the Suburbanization of the US working class,” Jacobin Magazine 15/16 (Fall 2014), available online at: https://www.jacobinmag.com/2014/10/the-suburbanization-of-the-us-working-class/.

97ehrenhalt, The Great Inversion, p. 9. 98Sam Quinones, “the end of Gangs,” Pacific Standard, December 29, 2014, available online at: http://www.psmag.com/

politics-and-law/the-end-of-gangs-los-angeles-southern-california-epidemic-crime-95498. 99Gallagher, The End of the Suburbs, p. 177. 100on the federal level, President obama announced stricter rules for federal housing funding in the hopes of reducing racial

segregation (Julie Hirschfeld Davis and Binyamin applebaum, “obama Unveils Stricter Rules against Segregation in Housing,” The New York Times, July 8, 2015, available online at: http://www.nytimes.com/2015/07/09/us/hud-issuing-new-rules- to-fight-segregation.html; cities like chicago are also trying to lure urban low-income residents to the suburbs (alana Semuels, “How chicago is trying to integrate its Suburbs,” The Atlantic, July 17, 2015, available online at: http://www. theatlantic.com/business/archive/2015/07/chicago-regional-housing-section-eight/398798/.

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which were vacant.101 According to one The New York Times reporter, “His was a tour of a post-bust stretch of Sanford.”102 In Ferguson, Missouri where Michael Brown was shot, the Economic Policy Institute reported that the “ghetto conditions we had come to associate with inner cities are now duplicated in a formerly white suburban community.”103 The socio-spatial divide that the “ghetto” represented was one instantiation of a broader system of racial control that operated within particular political, social, and economic conditions. As demographics change, so will the racialization of space.

These kinds of population and demographic changes problematize issues regarding law enforcement. The consistent racialization of space was a key aspect of policing. Michael Katz describes the social isolation that previously existed between the suburbs and urban centers: “an invisible veil reinforced in suburbs by gated communities, separates comfortable Americans from what happens in West Oakland street.”104 This divide was often made visible by police officers. Albert Meehan and Michael Ponder conducted research on who and when police officers decide to run computerized license-plate checks and concluded that African American drivers in “white neighborhoods” were more likely to be stopped and checked than anywhere else.105Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel also found that

officers in the suburbs that ring the urban core are more focused than officers in other areas on carrying out intrusive investigations of African American drivers….Disproportionate investiga- tory stops of African American drivers in these wealthy suburbs look less like crime control and more like a deliberate effort to keep blacks out.106

When space and race become destabilized, violence often ensues. David Jacobs and Jason Carmichael found that death penalty laws were not only related to the presence of African Americans, but also to population instability:

jurisdictions with the most residents born in state are less likely to have the death penalty. High migration rates reduce community solidarity and break interpersonal ties. The effects of this control variable probably can be attributed to hostility toward strangers.107

According to Jacobs and Carmichael, support for the death penalty reflects “how majorities and their political representatives decide to manage the threat posed by the “dangerous” classes” and that danger was partly predicated on the re-spatialization of race following the Great Migration.108 In regards to the impact of the Great Migration on the racial disparities of mass incarceration, Christopher Muller revealed how “the greatest and most durable increases in racial disparities took place before the national incarceration rate began its rapid

101Dan Barry, Serge Kovaleski, campbell Robertson and lizette alvarez, “Race, tragedy and outrage collide after a Shot in Florida,” The New York Times, april 1, 2012, available online at: http://www.nytimes.com/2012/04/02/us/trayvon-martin- shooting-prompts-a-review-of-ideals.html?pagewanted=all.

102Dan Barry, Serge Kovaleski, campbell Robertson and lizette alvarez, “Race, tragedy and outrage collide after a Shot in Florida,” The New York Times, april 1, 2012, available online at: http://www.nytimes.com/2012/04/02/us/trayvon-martin- shooting-prompts-a-review-of-ideals.html?pagewanted=all.

103Richard Rothstein, “the Making of Ferguson: Public Policies at the Root of its troubles,” Economic Policy Institute, october 15, 2014, available online at: http://s3.epi.org/files/2014/making-of-ferguson-final.pdf.

104Michael Katz, Why Don’t American Cities Burn? (Philadelphia, Pa: University of Philadelphia Press, 2012), p. 13. 105albert Meehan and Michael Ponder, “Race and Place: the ecology of Racial Profiling african american Motorists,” Justice

Quarterly 19:3 (2002), pp. 399–430. 106charles epp, Steven Maynard-Moody and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and

Citizenship (chicago, il: University of chicago Press, 2014), p. 108. 107David Jacobs and Jason carmichael, “the Political Sociology of the Death Penalty: a Pooled time-Series analysis,” American

Sociological Review 67:1 (2002) p. 127. 108ibid., 128. the Great Migration refers to the period between 1910 and 1970 when approximately six million african-

americans moved out of the southern United States to other regions of the United States.

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ascent” and in fact corresponded with increasing rates of African American migration to the North between 1880 and 1950.109 Like Jacobs and Carmichael, Muller argues that one of the reasons for the increase has to do with how African American migrants were construed as “threats.” Muller notes that “the postwar Great Migration of African Americans into the urban North shook nativism to its ideological foundations…engendering the first truly mass culture obsessed with “the Negro” as the foremost social threat.”110

A similar phenomenon occurs with the demographic shift following the 2007 recession. As poor people of color move to the suburbs, the linkage between urban and black increas- ingly de-couples and the dangers associated with population instability re-emerge.111 In regards to the shooting of Trayvon Martin by George Zimmerman, Anne Marie Smith wrote:

It is striking that with Zimmerman, we have a temporal coincidence, namely the simultaneous occurrence of lethal vigilante violence and neoliberal austerity…middle-class white Anglos begin to feel less secure, either because the reduced police budgets actually contribute to an increase in their exposure to violent crime, or because they imagine themselves more at risk in the face of a growing Hispanic population, unemployment, structural adjustment, collapsing housing values, rising student debt, and shrinking pension accounts.112

Without the containment of the “ghetto,” the specter of blackness is heightened. The racial- ized spatialization of the ghetto is not as “containerized” as it used to be. Whereas Loic Wacquant accurately noted how “urban and black became near synonymous,” it was that linkage that mainly made blackness a danger only to itself.113 No longer just dangers to themselves, black people now were perceived to be a danger to everyone, particularly those who had previously been insulated in the suburbs. As black people were increasingly encroaching on areas that had previously been havens for white flight, they were seen as more than just criminals that committed unlawful acts, but threats that symbolized an exis- tential danger. Allen Feldman refers to this emerging threat as “securocratic wars,”114 which he describes as “open-ended and de-territorialized wars around vague, all-encompassing notions of public safety rather than territorial conquest…..raising the specter of mobilities and flows deemed to contaminate societies and threaten the social order.”115

The changing geographies of race in this new era pick up on the previous discourse of the criminalization of blackness. No longer contained by the socio-spatial devices associated with the “ghetto,” the dangers of blackness have been ratcheted up. “Paranoia and neurosis are embedded into geography” and when that geography becomes de-stabilized, the danger that blacks represent becomes an existential threat that extends beyond the rigid parameters of the prison system.116 What was more of an abstraction, in that urban “ghettoes” were a distant phenomenon for most Americans, has become more acute following recent popu- lation and demographic shifts.

109christopher Muller, “Northern Migration and the Rise of Racial Disparity in american incarceration, 1880–1950,” American Journal of Sociology 118:2 (2012), p. 282.

110ibid., 284. 111Susan Shah and Nicholas turner, “Size Matters, So Does Place: the Future of Policing and the changing U.S. Suburb,” Police

Chief Magazine, September 2015, available online at: http://www.policechiefmagazine.org/magazine/issues/92015/pdfs/ Shah-turner_Policechief_September2015.pdf.

112anne Marie Smith, “Deadly Force and Public Reason,” Theory and Event 15:3 (2012). 113wacquant, Punishing the Poor, p. 55. 114allen Feldman, “Securocratic wars of Public Safety,” Interventions: International Journal of Postcolonial Studies 6:3 (2004),

pp. 330–350. 115Graham, Cities under Siege, p. 91. 116ibid., 93.

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Regardless of where one lives or what one’s status is, blacks seem increasingly susceptible to stop-and-frisk, racial profiling, and even murder by law enforcement without appearance of imminent danger. After the exoneration of Michael Slager for the shooting of Walter Scott, Jamelle Bouie rightfully concluded, “It means any officer can kill any American for almost any infraction, and almost always escape punishment.”117 The current iteration of racial vio- lence is not as informed by employment, location of residence, or class status. Terrance Ross reported on the beating of Martese Johnson by the Virginia State Alcohol Beverage Control and noted that “police brutality and mistreatment often transcends class borders, and Johnson’s college credentials apparently didn’t protect him from the racial profiling he’s believed to have suffered.”118 In that regard, the current iteration of racial violence has dis- associated blackness from previous economic, social, cultural, or spatial markers. Racial vio- lence has been whittled down. It is no longer as connected to a modifier such as slave, south, or urban. Being black is enough.

In regards to policing, the war on terror provided a discursive logic and oversized weapons that complemented the changes in policing following the demographic shifts after the 2007 Recession. Because of the blurring of the urban/suburban divide, it became harder to identify “intruders,” and hence a demand for a different kind of policing. The discursive terms of pre-emption that emerged out of the war on terror and the disproportionate targeting of people of color legitimated the shift in policing that was more active and less accountable.

Conclusion

The carceral state is in transition. Whereas the data regarding mass incarceration and policing are not definitive, the political ways in which they are juxtaposed against one another and the changes in policing following the war on terror and 2007 Recession confirm a shift that is less about putting more people into penitentiaries as it is about extending the practices associated with the penitentiary out to the general public. By no means is this meant to suggest that incarceration is going to be completely dismantled, but rather that the current decline in incarceration should not be seen as a diminishing the carceral state as much as a reconfiguration of it.

Whereas law enforcement has always played a crucial role in the carceral state, the dis- cretion which law enforcement officials yield has not been the dominant factor until now. Policing has shifted in regards to the lethality of its means, the services it provides, and the geographies it patrols. Altogether, it represents a qualitative shift of the role of the police within the carceral state. The discretionary prerogatives of law enforcement are replacing prosecutorial discretion as the pivot point on which the carceral state turns. The scope of police activity has significantly expanded, much of which operates below the previous stand- ards of criminality and imprisonment. In this new era, police officers are becoming the ful- crum for governmental discretion.

117Jamelle Bouie, “the walter Scott case was a test,” Slate.Com, December 7, 2016, available online at: http://www.slate.com/ articles/news_and_politics/politics/2016/12/the_walter_scott_case_can_cops_kill_with_impunity.html.

118terrance Ross, “when Police Misconduct transcends class,” The Atlantic, March 20, 2015, available online at: http://www. theatlantic.com/education/archive/2015/03/the-transcendence-of-police-misconduct/388168/.

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This partly explains why movement activists such as the ones associated with Black Lives Matter are weary of reform. As co-founder of Critical Resistance Rachel Herzig states, it is important to “avoid increments that ultimately will block our long-term vision in the next stage of the fight.”119 Reforms on one issue often obscure retrenchment on another and thus contribute to the continuity of racialized violence by yet another means. Keeanga-Yamahtta Taylor notes: “the gravity of the crisis confronting Black communities, often stemming from these harmful encounters with the police, legitimizes the need for a more encompassing analysis.”120

The resiliency of the carceral state is attributed mainly to its flexibility and adaptability. Rather than necessarily being pre-determined by particular economic modes of production or socio-spatial devices, the various permutations of the carceral state suggests that it is informed by and contours itself around the ways in which the economic, political, and social structures interrelate to each other at different moments in time. The unfolding of time is not indicative of any teleological sense of progress, but rather a complex dynamic of inclusion and oppression. Whereas more people elude imprisonment, they are nevertheless enmeshed within a carceral web that is more widening and diffuse.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Daniel Kato is a Lecturer of American Politics at Queen Mary University of London and the author of Liberalizing Lynching.

119Rachel Herzig, “the Magical life of Broken windows,” in Policing the Planet, p. 276. 120Keeanga-Yamahtta taylor, From #Blacklivesmatter to Black Liberation (chicago, il: Haymarket Press, 2016), p. 168.