A Colony in a Nation

by Chris Hayes

This rhetoric and framing would become the template to justify forty years of escalating incarceration: Order is necessary for liberty to flourish. If we do not have order, we can have no other rights.

THIS BOOK MAKES A simple argument: that American criminal justice isn’t one system with massive racial disparities but two distinct regimes. One (the Nation) is the kind of policing regime you expect in a democracy; the other (the Colony) is the kind you expect in an occupied land. Policing is a uniquely important and uniquely dangerous function of the state.*

But this power has turned out to be strikingly confined and circumscribed, incorporated into the maintenance of order through something that looks—in many places—more like the centuries-old model of colonial administration.

But as a principle of self-governance, particularly of American self-governance, “do what the cops say” is a pretty strange unofficial motto. This great land of ours, this exceptional beacon of liberty, was founded by men who, to borrow a phrase, refused to comply.

During the pre-Revolutionary era, smugglers created economic activity that caused huge knock-off effects: a cascade of subsidiary industries and cash flow that kept a whole lot of people in the colonies (not to mention lots of business back in merry old England) in the money. The same goes for dealers in, say, Westside Baltimore or the South Side of Chicago or the South Bronx, or northern Maine or eastern Kentucky or South Central Los Angeles. Sure, the drug trade is illegal, reckless, and destructive, but it encourages commerce in places where the legitimate economy produces few jobs.

It was a classic crackdown: more customs officials were granted more expansive powers, while courts were streamlined to produce swift punishment and avoid the maddening jury nullification that had made it so hard to punish smugglers in previous decades. After 1763 customs officials no longer looked the other way in exchange for small bribes. Instead, they began operating in ways that looked a lot like what we now call “stop and frisk.”

The model of cops as armed tax collectors didn’t stop with simple traffic stops for speeding: the entire municipal court system was designed to function like a payday lending operation. Relatively small infractions quickly turned into massive debts.

By 2015, fines and fees would make up more than one-fifth of the city of Ferguson’s total revenue.

The point is that none of the people administering this enterprise appear concerned that what they’re doing is a gross violation of their duty to their constituents.

This is what “the law” looks like in the Colony, where real democratic accountability is lacking, when the consent of the governed is absent or forsaken or betrayed, and when the purpose of policing and courts isn’t the maintenance of safety and provision of justice but rather some other aim.

To be outnumbered and afraid in a land not your own, and to attempt to bring it under your control—this is the great recurring theme of the American project, and it is shot through at every moment by fear and violence and subjugation.

THE GUN IS PROTECTION and solace. In neighborhoods that are quiet and far from crime and danger, it represents some kind of last personal means of ensuring your own turf. You live in the Nation, and if the Colony comes knocking in the dead of night, you can keep it at bay.

An armed populace must be subdued with even greater arms. During the Crack Years, the period in the late 1980s when crack was entering urban America and drug turf wars escalated, mayors in major cities decried the fact that their officers were “outgunned.” American society has witnessed a kind of arms race between its citizens and its police, resulting in forces that in many places patrol and occupy rather than police, that straightforwardly view themselves as waging war.

It turns out that wall-to-wall coverage of people being brutally killed by a gun is the best of all advertisements for gun sales.

Despite the fact nonwhite people are disproportionately the victims of crime, the criminal justice system as a whole is disproportionately built on the emotional foundation of white fear.

a profoundly powerful political force was at work acting on the thousands of individual systems, actors, and institutions, bringing them into a tyrannical alignment. That force was white fear.

Yes, black citizens, leaders, clergy, activists, and politicians in predominantly black neighborhoods recognized a crisis, and yes, they were demanding solutions. But the solutions they were demanding were full spectrum—more police and more jobs—while the solutions they got were entirely punitive.

This process was repeated in statehouses and city halls across the country: black people asked for social investment and got SWAT teams, asked for full employment and got gang units, asked for protection and got “stop and frisk.” White fear absorbed and appropriated black fear.

Jill Leovy, who chronicled the work of homicide detectives in South Central Los Angeles in her masterful book Ghettoside, argues that this inability to solve and punish the most serious crimes is the flip side of a system that overpunishes minor infractions.

It hauls masses of black men through its machinery but fails to protect them from bodily injury and death. It is at once oppressive and inadequate.”

White fear emanates from knowing that white privilege exists and the anxiety that it might end.

That perhaps our destiny is indeed a more equal society, but one where equality means equal misery, a social order where all the plagues of the “ghetto” escape past its borders and infect the population at large.

It was poor and mostly black. Kelling and Wilson were arguing, unapologetically, that in these precincts of the Colony, order should matter more than law.

The article is predicated on a study that required cops to get out of their cars and actually walk their beats, a key pillar of today’s “community policing.” Yet in the modern vocabulary of policing theory, “broken windows” has become shorthand for the polar opposite: aggressive, community-antagonistic, clean-’em-up vigilantism.

Wealth would have to be redistributed, students would have to be bused, housing laws would have to be enforced, and on and on. Getting rid of the “ghetto” as an institution would require a full, multigenerational commitment to making racial equality a genuine, lived economic reality in America.

“quality of life” arrests, notes that while arrests for low-level offenses skyrocketed, the actual rate of criminal convictions dropped. She argues that “broken windows” actually created a parallel court system, with an altogether different set of goals.

The goal of this system is not to figure out if the person in question committed a crime but to sort city residents according to their obedience and orderliness.

If I’m entirely honest with myself, I have to admit that I, too, fear the bad old days’ return. I enjoy the orderliness of the current city. I own a home. I have kids. I don’t want them encountering addicts on the corner. I don’t want a lot of disorder on the streets.

Thus the system of punishment that developed found equality in a race to the bottom: everyone got punished harshly as an expression of a core belief that no man stands above another.

This instinct to level down—Circulate the mugshot! Censure the judge! Get tough on crime for privileged white boys!—rather than level up is a core feature of American justice.

They located the problem not in institutional racism but in the discretion of the judges themselves, who were empowered to give whatever sentence they wanted. Thus began a push in all levels of law to remove that discretion and impose statutory minimums.

We need to give them the tools they need to recover. Because every life is precious. Every life is an individual gift from God. We have to stop judging, and give them the tools they need to get better.”

And we know from study after study that racial integration improves measurable outcomes for everyone involved. Integrated schools (which we have largely abandoned) produce net benefits for all children, black and white. White people do not need to experience genuine democracy, equality, full citizenship, and recognition for all as a loss or redistribution—eating less so that others may eat more. We can all feast together.

But if there’s one thing I’ve come to believe, it is that much of the cause of our current state of affairs lies in our tasking police with preserving order rather than with ensuring safety. Order is a slippery thing: it’s in the eyes of the beholder and the judgments of the powerful. Safety is clearer: it’s freedom from violence and intrusion.