A Colony in a Nation

by Chris Hayes

Nixon’s genius in 1968 was to reach back to the Founders and somehow find in that revolutionary generation a call for order. “The American Revolution was and is dedicated to progress, but our founders recognized that the first requisite of progress is order,” he said. “Now, there is no quarrel between progress and order—because neither can exist without the other.” In fact, “the first civil right of every American is to be free from domestic violence, and that right must be guaranteed in this country.” 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. It would dominate the politics of both parties over the next three decades, as crime continued to climb. Fear for one’s own body against a violent predator, for the sanctity and safety of one’s hearth against incursions by the depraved—these kinds of political issues operate far below the frontal cortex, deep beneath the dry talk of policy or tax rates. They are primal and primary. And in America, when the state cultivates such fear among relatively empowered white voters, it is enriching uranium for a political nuclear weapon.

I felt a new understanding of the phrase “law and order.” I’d always thought its political appeal lay in the law and all that that term meant: a nation of laws not of men; equal justice under law; the rule of law. But I realized in that moment that the phrase’s power lay in the second term, in the promise of order, where people walk on the sidewalks, not in the street; traffic flows smoothly; and music is played softly and discreetly. In Ferguson that order was being boisterously, furiously, fuck-you’ed. And the beneficiaries of that order—from the local reporters to the homeowners in leafy seclusion just a few blocks away—looked on in horror. I could sense their anxiety almost telepathically.

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.* Dictatorships and totalitarian regimes use the police in horrifying ways; we call them “police states” for a reason. But the terrifying truth is that we as a people have created the Colony through democratic means. We have voted to subdue our fellow citizens; we have rushed to the polls to elect people promising to bar others from enjoying the fruits of liberty. A majority of Americans have put a minority under lock and key.

From India to Vietnam to the Caribbean, colonial systems have always integrated the colonized into government power, while still keeping the colonial subjects in their place.

Race defines the boundaries of the Colony and the Nation, but race itself is a porous and shifting concept. Whiteness is nonexistent, yet it confers enormous benefits. Blackness is a conjured fiction, yet it is so real it can kill. In their brilliant 2012 collection of essays, Racecraft: The Soul of Inequality in American Life, Karen and Barbara Fields trace the semantic trick of racial vocabulary, which invents categories for the purpose of oppression while appearing to describe things that already exist out in the world. Over time these categories shift, both as reflections of those in power and as expressions of solidarity and resistance in the face of white supremacy. Because our racial categories are always shifting, morphing, disappearing, and reappearing, so too are the borders between the Colony and the Nation. In many places, the two territories alternate block by block, in a patchwork of unmarked boundaries and detours that are known only by those who live within them.

If you live in the Nation, the criminal justice system functions like your laptop’s operating system, quietly humming in the background, doing what it needs to do to allow you to be your most efficient, functional self. In the Colony, the system functions like a computer virus: it intrudes constantly, it interrupts your life at the most inconvenient times, and it does this as a matter of course. The disruption itself is normal. In the Nation, there is law; in the Colony, there is only a concern with order. In the Nation, you have rights; in the Colony, you have commands. In the Nation, you are innocent until proven guilty; in the Colony, you are born guilty. Police officers tasked with keeping these two realms separate intuitively grasp of the contours of this divide: as one Baltimore police sergeant instructed his officers, “Do not treat criminals like citizens.”

Maintaining the division between the Colony and the Nation is treacherous precisely because the constant threat that the tools honed in the Colony will be wielded in the Nation; that tyranny and violence tolerated at the periphery will ultimately infiltrate the core.

Section 29-16(1) of the municipal code of the city of Ferguson, Missouri, codifies this principle. It is a crime to “[f]ail to comply with the lawful order or request of a police officer in the discharge of the officer’s official duties.” As the Department of Justice would later show, the police much abuse this statute. Ferguson cops routinely issue orders that have no legal basis and then arrest citizens who refuse those orders for “failure to comply.” It’s a neat little circular bit of authoritarian reasoning.

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. Who not only resisted lawful orders but rebelled against the government that issued them. Colonists chased the king’s officers through the streets, caught them, beat them, tarred and feathered them, and wheeled them through town for all to mock and shame. As distant as it may seem now, that’s our national heritage when it comes to “lawful orders.”

Smuggling in the colonies was not so different from drug dealing in economically depressed neighborhoods and regions today. 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.

ending the conflict, it gained much of Canada and Florida—but it had incurred a staggering amount of debt. The inexperienced young king, George III, turned to tariff enforcement in the colonies as a relatively painless way of replenishing the royal coffers. Or so he thought. Because taxes were ultimately enforced through police actions, the British crackdown essentially inaugurated America’s first tough-on-crime era. 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.”

As customs officials were granted more and more power to extinguish illicit trade, inevitably they began to abuse it. Often they actually made their money as a percentage of the value of the goods they confiscated, putting them in the same position as pirates, but with the entire force of the British Crown behind them. (It’s not so different from today’s police departments funding their budgets through civil forfeiture.) Abuse and corruption were widespread, and as enforcement ratcheted up, so did colonial hatred of the men doing the enforcing.

The fundamental offense of British customs policing was that its driving rationale was revenue. Like the customs officers who interdicted smugglers to bring in tariffs, the police in Ferguson were ordered to write tickets to bring in money. That kind of law enforcement had nothing to do with public safety or welfare, and the public knew it.

Presented with a challenge to its power, an illegitimate regime will often overreact, driven by the knowledge that all they have is force.

The Thanksgiving tradition we celebrate today with a feast actually commemorates a betrayal that happened two years after the first arrival of the colonists. In 1622, Myles Standish, an English military officer working for the Pilgrims, heard that Indians planned to raid the newly established white settlement of Wessagussett. Standish organized a militia to repel the attack, but no Indians appeared. So he decided to preemptively attack by luring two Indians to Wessagussett under the pretense of sharing a meal. When they entered the house, Standish and his men killed them.

than the slaveowners, and the Indians had infinitely more to fear than the settlers. Even to diagnose and investigate white fear in this period seems an injustice: the fear that should matter to us is the fear of the man who has been murdered, the fear felt by his family and kin and friends and the millions of African Americans across the South who lived through decades of systematic terrorism with essentially no protection from the state. When we think of fear and the lynch mob, we should of course think of the victim, not of the crowd.

Policing in an environment awash in guns is fundamentally different from policing in one that isn’t. In every interaction in the simulator, I wondered when the gun would appear, and when I’d find myself reaching for my holster. Obviously the training environment and the desire to expose me to as much “action” as possible exaggerated the fear of the ever-present gun. But afterward, in a conversation with former cops, they all told me the threat of the gun weighs heavily.

The Second Amendment, its most strenuous defenders like to tell us, is the ultimate check against tyranny. (This despite the fact that Iraq under Saddam Hussein had one of the highest rates of gun ownership in the world.) They argue that an armed populace repels tyranny, but its practical effect has been the opposite. If the people are armed enough to threaten the state’s control, then the state’s monopoly on violence is in question, and it therefore often acts less like it’s enforcing the law than putting down an insurrection.

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

The beat cop deciding to make an arrest, the local district attorney deciding to charge someone with five crimes carrying a max of forty years rather than one with a max of five—these are the individuals who comprise what we call the criminal justice system. But there’s no such thing as the criminal justice system. “The criminal justice system is not a ‘system’ at all,” Pfaff writes, “and treating it as such can lead analysts to overlook important causes of prison growth.” American criminal law is constructed, maintained, patrolled, and enforced through a highly distributed, at times byzantine and chaotic set of overlapping jurisdictions, interacting awkwardly with one another. No one takes orders from any unified entity. No single actor or group of actors created mass incarceration, and no single group of actors can undo it. We have no single switch to flip. The Colony is an emergent phenomenon.

Like a magnet tugging countless tiny filings into the bands of force around its poles, 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. White fear is both a social fact and something burned into our individual neural pathways.

But an officer can suffer fear and still act unjustly. Imagine a police officer in the laboratory, sitting before the psychological test I just mentioned. He is presented with images of men and women, young and old, some aiming a weapon, others cradling a doll, and in a split second he must decide whether to “shoot.” And imagine that this particular officer, not through conscious racism but through deep unconscious bias, finds himself only in fear of black citizens. In test after test, pictures of black postal workers and teenagers appear on his screen. He hits the “shoot” button over and over again, mistaking for weapons the envelopes and phones in their hands. He is not faking his fear; he is not being disingenuous. But something is deeply amiss.

What is the moral status of that fear? What is its legal status? In the case of a police officer, the practical effect of our collective conception of fear is its transcendent ability to exculpate. If a cop shoots someone because he is angry, he is a murderer. But if he shoots a suspect because he is afraid, he is innocent. Can the law second-guess that subconscious impulse, which the shooter cannot control any more than he can keep his leg from kicking out when a doctor strikes a hammer against his knee?

Because control over the machinery of the state in almost all places remained in the hands of an overwhelmingly white elite, a perverse form of “half-a-loaf” legislative compromise emerged during this period. 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. Thanks to what scholars call “selective hearing,” black fear, combined with white political power, produced a state committed to managing and punishing black and brown subjects rather than empowering and protecting them.

If life across the border is cheap, if violence is routine and tragedy a habit, then, the logic goes, “they” don’t experience fear the same way. On the other hand, “we”—the collective social we, we the people who have relative privilege, the hardworking (white) folks, who have come so far, who are so upstanding and special, should not have to fear. Sure in the ghettos, it’s scary, but for them fear is just part of life. It’s easier for them.

But violent deaths at the hands of the police and those at the hands of gang members don’t exist in some kind of competition. They are two sides of the same coin. When those outside the Colony point with derision at the violence within it to justify its continued existence, they reinforce how undervalued black lives are. In ways large and small and constant, the Nation exhibits contempt for the lives of its subjects in the Colony and indifference to their value. This is the central component of the white fear that sustains the Colony: the simple inability to recognize, deeply, fully totally, the humanity of those on the other side. It’s why the wave of protests has come to so many white people as such a surprise. The systematic devaluation of the Colony is so remarkably well hidden, so easily unseen.

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. “Like the schoolyard bully, our criminal justice system harasses people on small pretexts but is exposed as a coward before murder. 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.”

Along with causing the Nation to undervalue the lives of those in the Colony, white fear also expresses the forbidden knowledge that all white people carry with them: We’ve got it better. And if white people have it better, then isn’t it only logical that black people will try to come and take what they have?

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

We know equality might someday come, and it might mean giving up one’s birthright or, more terrifyingly, having it taken away. 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.

White fear is a collaborative production.

Through our shared cultural inheritance, Americans convert white fear into policy. When the system receives a shock—a crime wave, a terrorist attack—and we must answer the question What is to be done, our collective response is punishment, toughness, and violence. We build a bureaucracy and vocabulary of toughness that then take on their own power, their own gravity and inertia. We then bequeath the institutions of toughness to the next generation of politicians and policy makers, even after the initial problem they were meant to solve has dissipated.

Incarceration in many states is actually declining, and the beginnings of something like a political consensus—however tenuous and uneasy—has formed, between left and right, that locking up millions of our own citizens has been an expensive, tragic, and embarrassing mistake.

The police in this earlier period assisted in that reassertion of authority by acting, sometimes violently, on behalf of the community. Young toughs were roughed up, people were arrested “on suspicion” or for vagrancy, and prostitutes and petty thieves were routed. “Rights” were something enjoyed by decent folk. This last line about rights is important. Kelling and Wilson seem implicitly to have been hostile to the kind of rights-based proceduralism that flowed from the Warren Court. They were urging the return to a bygone era when cops were local authorities who enforced community norms of order, rather than enforcers of the law within the confines of explicit constitutional rights. They suggested that police could help a community maintain order, but that the standards for order must come from the community itself.

As a theory, “broken windows” played a perfect explanatory role for politicians and policy makers. If disorder leads to crime, well then, we need to crack down on disorder. And cracking down on disorder was something the police could do. The liberal theory of the causes of crime—that it was born of racism, segregation, oppression, poverty, and disinvestment—painted a picture of the problem that required a set of solutions far above what the local beat cops could provide. The federal and state governments would have to not just cooperate with such an agenda but prioritize it, mobilize for the domestic policy equivalent of war. 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. That was a social project for which, frankly, white voters had (and continue to have) little appetite.

Everyone tasked with keeping crime from returning has developed deeply held, near-religious beliefs about What Works. We are farmers begging the Gods to keep the drought away; we will give them what they want, if they will spare us their wrath.

And here is the awful implication of this seemingly innocent desire for order: people like me who reside in the Nation enjoy the benefits of increased real estate values, tranquil urban streets, and poverty quarantined out of view. We directly, materially, personally benefit from the status quo, no matter what awful costs it imposes on those in the Colony. This is the dark magic of the politics of order: fear lurks in the hearts of the Nation’s citizens that if the Colony were ever liberated, if the police were withdrawn and rights restored, life in the Nation might grow much, much worse. Crime, it turns out, is more easily subdued than fear.

America is a wrathful land. Americans like to humiliate wrongdoers. We like to heap marks of shame upon them, to watch them groan and writhe beneath their sins, as far back as the scarlet letter and the stocks. We like, in short, to punish. It makes us feel good. By every conceivable metric—prosecutions, duration of sentences, conditions of imprisonment—the United States is by far the most punitive rich democracy. No one else really comes close. And we are, of course, the only rich democracy that hands out the ultimate punishment: death.

The United States is more or less the only advanced democracy that elects its prosecutors. As the legal scholar William Stuntz points out, those electorates often draw from an entire county, which includes urban and suburban areas, so that predominantly white, middle-class-to-affluent suburban voters are choosing who will prosecute the largely poor black people arrested by the police. The idea of electing prosecutors, as we do in the United States, strikes most European jurists as sheer madness. In almost all cases, the continental criminal justice system is far more bureaucratic, more insulated from electoral politics than our own.

Since the American Revolution, we viewed punishment as a great equalizer; no special kinds of punishment was reserved for lords and for peasants. 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. In Europe, as it democratized over time, the move was to push everyone into the category once reserved for the nobles: the sphere of humane treatment was widened until it included everyone. “Over the course of the last two centuries,” Whitman writes, “in both Germany and France, and indeed throughout the continent of Europe, the high-status punishments have slowly driven the low-status punishments out. . . . These countries are the scene of a leveling-up egalitarianism—an egalitarianism whose aim is to raise every member of society up in social status.”

a crime discourse that focuses on the evil of the acts has ruinous political consequences, especially for any attempt to create a system that values the humanity of the people who commit crimes.

Crime in America is associated with the lower classes, the ghetto, the others, the Colony. But what would the politics of crime look like in a place where people worried not only about victimization but also about the costs of overly punitive policing and prosecution? What kind of justice system would exist in a setting in which each member of society were actually valued as a full human with tremendous potential, even if he or she committed a crime, or hurt someone, or broke the community’s norms and were held accountable? What would it look like to have a system where, behind the veil of ignorance, every member had an equal chance to end up as perpetrator or victim? What would a criminal justice system for the elite look like? How would people with power and privilege and resources and influence choose to collectively police themselves if given the ability? WE DON’T HAVE TO speculate; hundreds of examples are operating right now across every single state of the union. I speak, of course, of elite four-year colleges and universities, public and private. I

Even the application of mercy, in sentencing or parole, James Whitman argues, can be suspect because it requires judges or parole boards to consider the individual circumstances of each person brought before them, to consider the specific conditions of their crime and detention. And who’s to say that showing mercy to one won’t mean injustice for another? The only true justice can happen in the absence of mercy, where each individual meets the same punishment and the same fate, with no deviation. If “no mercy” sounds perverse, keep in mind that injustice in sentencing provided at least part of the rationale that animated the call for mandatory minimums, a policy now seen by many, across the political spectrum, as a wholesale disaster.

Stop judging, and give them the tools they need to get better. Think of any other context where this is the guiding ethos of our crime policy. Imagine a person commits a crime, perhaps even a violent crime, against you. Is this person a human being? A neighbor, a fellow citizen? What do we as a society owe that person? Could he be someone you know and love in the throes of addiction? Or is he a member of a group you’ll never encounter again? What dignity is due the perpetrator and the potential perpetrator? Do you and the perpetrator belong to the same country? This is the question before us. The question we’ve answered wrongly for too long.

Subtly but unmistakably we have moved the object of our concern from crime to criminals, from acts to essences. It is the criminal, the bad guy, the irredeemable thug, around whom we craft our policy. We must keep him at bay. He is not a man who committed a bad act. He is not a full soul who did something horrible. He is the crime. He is a criminal. He is a subject of the Colony. Citizens can be full human beings; citizens can get second chances; citizens can be forgiven. Subjects are unforgivable.

For so long one of the great tools of white supremacy has been to tell white people that there’s a fixed pie, and whatever black people get, they lose.

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.

The Colony pays tribute to the Nation. The citizens enjoy tangible gains at the expense of the subjects, even though, or especially when, those gains aren’t material. While in some clear cases quantifiable dollars move from one realm to the other, a certain psychological expropriation, a net transfer of well-being, is far more common and far more insidious.

To the president and his political movement, crime is not a problem to be solved. It is a weapon to be wielded.