by Chris Hayes
For this, Pfaff blames prosecutors, not cops. Prosecutors have tremendous discretion over which cases to bring and which to drop, whether to throw the book or slap the wrist. “You have to focus as much on the culture as the law,” he says. “Prosecutors are part of a culture that has expectations about crime toughness, and when you combine that with their tremendous amount of latitude, you get staggering punitiveness.”
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.
There’s a deeper story here, about how over the same period of time many different institutional actors all moved in the same direction, namely toward more: more arrests, longer sentences, more aggressive prosecutions, more years before parole, more criminal statutes on the books, more money spent on prisons. The list is endless.
An astounding confluence of thousands of institutions and millions of individuals was necessary to produce the modern American prison state. Think for a moment how hard it is to make major policy changes in America—to shift from fossil fuels to renewable energy, to implement something approximating universal health care. Think of all the special interests and resistance and organizations and constituencies that must be fought, bargained with, steamrolled, cajoled, and bought off. Then think of what it took to create the monstrous expansion of the Colony.
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. In laboratory studies white people rate children of all races equally “innocent” until about age ten, when the innocence of black children suddenly fades, while that of white children endures. In experimental settings, people of all races perceive black people as more threatening than people of other races, but the effect is particularly exaggerated with white respondents. These studies don’t ask respondents for their conscious racial attitudes or articulable political beliefs. Rather, they test respondents in split-second decision making: hitting one button for friend and another for foe, as images of people, black and white, some armed and some carrying groceries, pop up on the screen.
The point of these experiments is to test our deepest, least conscious, most hardwired reactions to people of different races. Time and time again they uncover that even those with egalitarian racial politics possess unconscious bias. In fact, while white participants have higher levels of racial bias than nonwhite subjects, even African Americans consistently show antiblack suspicion. Racial fear lives in the deepest part of our psyches. It lurks in our synapses.
After every fatal shooting of an unarmed civilian, all actors in the drama follow a familiar script. The police officer in question says he was scared for his life, and public opinion coalesces around either believing him or considering him a liar and a murderer who shot his victim in cold blood. Sometimes a video emerges that supports the latter conclusion: a man fleeing on foot is shot in the back; a young man striding away is hit as an officer unloads a clip of bullets.
In the overwhelming majority of cases, however, no such video exists. And without visual evidence, prosecuting attorneys are inclined to trust the testimony of their colleagues in law enforcement. Grand juries, too, are reluctant to conclude that a cop was lying when he said he feared for his life. In 2008, for example, New York police detective Gescard Isnora testified to a grand jury that he had been “scared and nervous” before he shot eleven of the fifty bullets alongside his unit that killed unarmed New Yorker Sean Bell and wounded two of his friends.
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?
I KNOW THAT IMPULSE well because I experienced it for much of my life. During my childhood and adolescence, I walked the streets of New York shrouded in white fear, always sensing danger lurking at the corners. The sketchy teenagers up to some kind of hustle in the park. The shouts of revelers and assailants in the night as I went to bed.
I grew up in the Bronx. Not the South Bronx that famously burned while the Yankees played the Dodgers in game two of the 1977 World Series, but a working-class neighborhood in the Northwest Bronx called Norwood. We moved to the leafy, quiet, relatively affluent neighborhood of Riverdale when I was eleven, but then I began a daily commute into “the city,” as we always called it, right as New York was setting crime records. The public magnet school I attended from seventh to twelfth grade was on the northernmost edge of the Upper East Side, adjacent to East Harlem. East Ninety-sixth Street made up the border. I knew every square foot and its potential danger. Or I should say, I thought I did. My biases and irrational neuroses colored everything about the physical experience of New York in the early 1990s. My own psychological makeup then was wired for anxiety, constantly hyperaware of my own self and its vulnerabilities as it moves through space. So for me, growing up in New York at the time of both peak violent crime and peak public panic about the same was a bit like taking a kid scared of roller coasters and raising him in an amusement park.
I don’t think it’s an overstatement to say that at some level, the thought of crime penetrated every single moment I spent walking the streets of New York. I’d scan the sidewalk for teenage boys who looked like they might be trouble. Often they were black or brown, but not always. There were many white hooligans to avoid as well. I’d cross the street. Then walk into a store, then another store. Then cross back and keep my head down. I’d avoid eye contact or, just at the moment where I sensed danger, ask an old lady for the time.
I learned a very particular gaze, eyes slightly downcast, so as not to make accidental eye contact and initiate hostility (“What the fuck you looking at?”), yet raised and open enough to constantly monitor possible threats in the periphery. I would tense myself for certain blocks. One friend lived on the Upper West Side on a block frequented by dealers (we opened the door to his house once to find a man passed out next to a crack pipe), and I’d need to work myself up into a lather of courage to st
ride purposefully down that block to his house. Particularly at night.
On the day in April 1992 when a Simi Valley jury found the police officers who beat Rodney King not guilty, the administrators of the school I attended panicked. They imagined that riots would break out in New York, so they let school out early and instructed students and teachers to go home and not linger on the streets. I was a thirteen-year-old eighth grader. A bunch of us went to the apartment of a friend who lived across the street. A little while after we got there, our friend’s older brother came into the apartment with some upperclassmen, one of whom had just been punched in the face. The purple bruise around his eye seemed like a clear message: This involves you too.
I felt that threat personally and persistently, even though no one ever made it and even though I wasn’t actually the target of much violence. I had a backpack jacked once. A few hats, I think. The only time I was actually attacked was on the night of a school dance. I was walking with a bunch of girls, the lone boy, feeling cocky, when a boy roughly my age came up to me and said, “Yo, can I see your bus pass.” I hesitated. “I said, run your fuckin loot!” I had the thought in the moment to correct him: he hadn’t actually said “Run your loot.” But that thought was interrupted by him punching me in the chest and then knocking my wallet out of my hand as I withdrew it. He then whistled to a large group of friends, who appeared out of nowhere to ransack the contents. They took the few bucks in there and my bus pass (a city-issued pass for students that let them ride for free) and took off laughing.
Years later I can still conjure the shaking rage that consumed me, the burning humiliation and emasculation of being punched in the middle of the street for all to see. The city, seen through my teenage eyes, was spectacular but also ominous and exhausting.
I was bright enough to know that the same kids who jacked my backpack had had their own items jacked, and that they, too, lived in fear. But what was exceptional for me and my mostly white friends—violence—was far more likely to be routine in their world. That is: they were like me, scared teenagers full of bravado and terror in equal measure. But my actual feeling in that moment was that the space above the East Ninety-sixth Street border was an undifferentiated foreboding mass, a looming tower.
As I type this now, it all sounds ridiculous, overly dramatic. Was it really that bad? Well, at one level, yes. Those were the Crack Years, when crime, danger, and safety, consumed the city’s politics and media. And not just because of irrational fear—the city really was more violent than it had been in many decades, perhaps ever. Lifelong New Yorkers of all races and ethnicities had never experienced anything like it. (Not that it was experienced “together” across racial lines in any meaningful sense.) In 1991, the year I started riding the bus down to Manhattan to attend a magnet school, New York City set a record with 2,245 homicides. In 2015, it had just 352. The year before I started junior high school, it had 100,280 robberies compared to 16,931 in 2015.
This was just one moment in a longer story. In a remarkably short period of time, America got much more dangerous for its citizens. In 1960 there were approximately 160 violent crimes for every 100,000 Americans. In a decade the violent crime rate more than doubled to 360, and by 1980 it reached nearly 600. The rate dipped briefly and then peaked in 1992 at around 750—an increase of more than 450 percent in less than four decades.
The brunt of the great American crime wave of the late 1960s and 1980s was borne not by frightened white people like myself but largely by poor people of color. In Washington, D.C., a majority-black city, drug-related homicides went up 500 percent in a single year, from 33 in 1988 to 154 in 1989. Ta-Nehisi Coates describes his own upbringing on the Westside of Baltimore during the Crack Years as drenched in fear.
To be black in the Baltimore of my youth was to be naked before the elements of the world, before all the guns, fists, knives, crack, rape, and disease. The nakedness is not an error, nor pathology. The nakedness is the correct and intended result of policy, the predictable upshot of people forced for centuries to live under fear. The law did not protect us.
Fear of crime may have been preconditioned by centuries of the American experience; it may have taken its particular forms due to the pathologies embedded in America’s racial hierarchies. But that does not mean the fear was manufactured or invented as an excuse for what came after. Starting in the 1960s, crime in America skyrocketed at an unprecedented pace. And not just the kinds of crimes that in later years we would overpursue, the petty patrolling of traffic violations and outstanding warrants and nonviolent drug arrests. No: assaults, rapes, murders all went up.
And this violence created fear among citizens of all races, as well as calls from deep within the Colony to do something to stop it. This was certainly true in the Bronx of my youth. My father Roger Hayes, a Jesuit-seminarian-turned-community-organizer, co-founded the Northwest Bronx Community and Clergy Coalition in 1974. These were the days when the Bronx was burning, when the borough had become a global symbol of urban blight. The mission of the NWBCCC was to try to prevent what had happened in the South Bronx—arson, abandonment, violence, and devastation—from happening to the Northwest Bronx. The group organized residents—black, white, and Latino—to take on slumlords and organized tenants to demand services and repairs. It coordinated investment capital in places teetering on the brink of being reduced to rubble.
Key to the Alinsky-inspired method of community organizing that my dad and his colleagues practiced was that neighborhood residents set the priorities and made the demands. And as the Crack Years dawned in the late 1980s, community members became preoccupied with drugs and violence. Similar organizations around the country shifted their focus from redlining, affordable housing, and community investment to violence, crime, and drugs. “Organizing comes from what people are concerned about,” my dad told me. “It wasn’t that people weren’t concerned about crime in the 1970s, but it really ramped up in the 1980s. And the crack thing was really huge. It was causing a lot of panic among people. People were seeing all of a sudden . . . all these people on the corner, all these people selling, all these people using. Whatever the low-level endemic drug issue was, it was ramped up a lot.”
As James Forman, Jr., demonstrates in his excellent Locking Up Our Own, in the Crack Years black citizens, politicians, and activists understood drugs, crime, and violence as a near existential threat, one that rivaled the marauding destruction of earlier eras of white supremacist terrorism. “We have allowed death to change its name from Southern rope to Northern dope. Too many black youth have been victimized by pushing dope into their veins instead of hope into their brains,” Jesse Jackson would say in 1991.
Forman cites example after example of prominent black political figures using some of the dehumanizing language that we’ve since come to associate with the racist overtones of law and order politics writ large. D.C. mayor Marion Barry railed against the “drug thugs and gun thugs,” while Atlanta mayor Maynard Jackson said those sowing fear in his neighborhoods had to be “hunted down like dogs.”
As crime hit historic highs, black people were terrified (in many neighborhoods for the most rational reasons), and white people were terrified (often completely out of proportion to the threat).
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.
In the fight over the 1994 crime bill, the NAACP excoriated the initial draft for its lack of investment in urban communities. The Congressional Black Caucus proposed its own alternative, with $5 billion more in funding for drug treatment and early intervention programs. But Republicans demagogued on
the small amount of social spending in the Senate Democrats’ version of the bill, railing against midnight basketball programs as a government subsidy for hooligans. The bill then lost an additional $2.5 billion in social spending, but left in place billions for prisons and a long list of punitive measures.
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.
As Mariame Kaba, a prison abolition activist, wrote of arguments that African Americans were a significant constituency calling for getting tougher on crime and harsher punitive measures: “to say Black people wanted this too belies [the] fact that Blacks in the U.S. are AMERICANS. Americans LOVE punishment.”
YEARS AGO, DURING A backpacking trip through South America, I was sitting in a café in a small town in Argentina, a few kilometers from one of the world’s most beautiful waterfalls, marking the border with Brazil. My wife and I struck up a conversation with a fair-skinned man in his fifties. He was handsome and slightly aristocratic with a gray ponytail, and as he dramatically pulled drags off his cigarette, he spoke to the two young gringos in world-weary tones about the country just over the border “In Brazil,” he said, “life is cheap. Especially among los negros.”