#BlackLettersMatter

Can more precise criminal law show #BlackLivesMatter? Or is the problem fundamentally about power?

I was left pondering this after reading Jack Halpern’s excellent follow up on the Ferguson, Missouri shooting of black teenager Michael Brown by police officer Darren Wilson.

Halpern’s portrait raises some serious questions about how to characterize the role of police power in black communities. He writes:

Wilson said that, despite what he’d said about experiencing “culture shock,” race hadn’t affected the way he did police work: “I never looked at it like ‘I’m the only white guy here.’ I just looked at it as ‘This isn’t where I grew up.’ ” He said, “When a cop shows up, it’s, like, ‘The cops are here!’ There’s no ‘Oh, shit, the white cops are here!’ ” He added, “If you live in a high-crime area, with a lot of poverty, there’s going to be a large police presence…”… Jonathan Fenderson, who is a professor of African-American studies at Washington University, in St. Louis, told me that young black men are inclined to see the police as an “occupying force.”

Let me take this out of a realm I know nothing about (criminal justice) and into a realm I know something about (political theory, esp. international relations).

Social scientists would describe what Fenderson names and Wilson alludes to as  structural power: white people (or the rich) have power, minorities (or the poor) do not. Out of fear or profit-making needs, the rulers must police the ruled. Fans of The Hunger Games movies will recognize this story. (Sidebar: One of the most interesting debates to see play out is which type of structural power is at work: racial or economic or both. This is an old debate with some new flavor. Seth Ackerman sums up one take, and Dominique Hazard another – both compelling.)

But Halpern points us towards some aspects of the Ferguson story that are not only/ primarily about structural power.

In exploring whether Wilson had a history of poor judgment, Halpern writes:

In police records, I found four well-documented instances in which Wilson was involved in “ped checks.” On February 27, 2014, he stopped a twenty-three-year-old black man named Aaron Simmons, outside a minimart. In the police report, Wilson remarks that the minimart was known as a place where drugs were sold. He also mentions that it was cold outside, and that while patrolling he had seen Simmons four times “in this area.” Wilson reports that, for his own safety, he told Simmons to remove his hands from his pockets. Simmons objected: it was freezing, and his pockets were empty. Wilson forcibly removed Simmons’s “hands from his pants, during which Simmons actively resisted my control.” Wilson then requested Simmons to place his hands against the police car, so that he could be searched for weapons. When Simmons refused, Wilson arrested him for failure to comply. The report does not say that Simmons possessed anything illegal. During the arrest process, Wilson notes, he and Simmons had several physical confrontations, including one, at the police station, in which “Simmons was pushed against the wall.”

I showed the four reports to Erin Murphy, an N.Y.U. law professor who studies Fourth Amendment issues. Murphy said that, in the case of Simmons, there was no legitimate reason for detaining him. The other ped checks were less dramatic, but also reflected “questionable constitutional behavior.” These reports, she noted, painted “a familiar picture of contemporary law enforcement.” Police officers, she added, are not entirely to blame—often, they are trying to “enforce vague standards for detaining people that they don’t really understand.” (Wilson conceded that the failure-to-comply ordinance was exploited as an “easy way to arrest someone.” True violations, he said, involved more resistance than “you telling someone to come here, and them saying, ‘No, screw you.’ ” But when I asked him to explain the ordinance further, he said, “I’d have to read it again.”)

Could a simple legal fix address much of the problem with racist policing? Perhaps by being more specific about what behaviors are acceptable, we could reduce policing discretion (and along with it the importance of cops’ biases and ideologies). If pocketed hands in winter are unacceptable, both police and civilians can know and plan their activities accordingly. If not, leave well enough alone.This could be called a black letter law strategy – essentially, getting to the point where the law is so clear it is no longer seriously contested.

That’s not to say that a legal fix would be simple. Criminal law is complex, and a great many changes might need to be enacted to come close to achieving more precision. As the treaty literature teaches us, precision clears things up and can make actors take obligations more seriously, but there are limits to the practicality and desirability of total precision.

Some scholars would say that imprecision is not an exceptional state of affairs – but the very means by which another kind of power operates: productive power. This “face of power” comes from the writing of French philosopher Michel Foucault. Alan Hunt and Gary Wickham provide a readable intro: with modernity, states take on broad governance functions that – to be effective – require ever greater plunges into regulating and controlling peoples’ bodies. This control is never fully effective, and indeed gaps in law are what invite further state plunging in.

It’s difficult to find some sort of programmatic reform to counter this type of productive power, or even an empirical strategy to prove its existence. As Hunt and Wickham point out, Foucault’s writings suggest little more than contesting productive power through speeches and writings.

If your social media feed has left you confused about which power to fight, Adolph Reed has a piece in this month’s Jacobin (not yet linkable) that is great but won’t make that choice any easier. He argues that we can’t hashtag our way out of racism, and that agency politics need to be paired with both structure politics and legal strategy. His article launches off from a critique of the movie Django Unchained, and takes us through Civil War structural politics as captured in the films Lincoln and Glory. He doesn’t settle the debate, but does point a way beyond unproductive either/or thinking.