A Colony in a Nation

by Chris Hayes

  Part of what sets Europe apart in this respect is the degree to which its criminal justice system operates free from democratic input. 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.

  But there’s a philosophical difference, too. In 2003 law professor James Whitman laid out an argument for why the U.S. criminal justice system compares so poorly to those of continental Europe—France and Germany specifically. For most of his analysis, Whitman explicitly puts race to one side (about which more in a moment), but in looking at the development of the continental system versus the U.S. system, he comes to a surprising and compelling conclusion: that it is the strong anti-aristocratic strain in the American legal tradition that has made our punishment system so remorseless and harsh.

  In the German and French systems, he explains, punishment long existed along two separate tracks: degradation and humiliation for low-status prisoners and relative comfort and hospitality for high-status ones. The United States, on the other hand, maintained a more egalitarian ethos of punishment (for white people, anyway). 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.”

  The United States, which never had a separate, formal aristocratic form of justice and punishment, one embedded in deference to the perpetrator’s core humanity, has, instead, been subject to the opposite push:

  Where nineteenth-century continental Europeans slowly began to generalize high-status treatment, nineteenth-century Americans moved strongly to abolish high-status treatment. From a very early date, Americans showed instead, at least sporadically, a typical tendency to generalize norms of low-status treatment—to level down.

  Whitman traces the historical currents that produced these twin impulses, but part of what made “leveling up” possible on the continent was a solidarity that flourished in postwar Europe, binding societies with a shared ethnicity and language. The person you may feel an impulse to degrade is your fellow Frenchman, after all.

  In the United States, the bulk of the populace cleaves apart perpetrators and victims, attributing criminals to one racial group and victims to another. The statistics don’t bear out this division—thanks in no small part to the pervasive segregation of American life, almost all crime in the United States is committed intraracially. White people are most likely to be victimized by other white people, black people are most likely to fall victim to other black people.

  But this is not the way crime is communicated publicly. It is communicated in the language of war: with the enemy criminals on one side, and victims on the other. And so when we speak of the politics of crime over the last three decades, we are speaking, almost without exception, of the politics of crime victimization. Politicians in their stump speeches tell hagiographies of victims and vilify the perpetrators. The last several decades have seen a concerted movement on behalf of victims to carve out a larger role in the criminal justice system, instituting victim impact statements, for instance. In many ways this has been salutary, as the trauma of violence for victims and survivors is profound and long-lasting, and the criminal justice system, to this day, still fails to adequately support them.

  But 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.

  George H. W. Bush’s 1988 presidential campaign ran an infamous ad about an incarcerated black man, Willie Horton, who participated in a weekend furlough program, escaped, and then went on to rape and murder. With its grainy photo of Horton, it was effective because it spoke to potential voters who could imagine themselves as his victim. This scary black man might come and find you or someone you love and kill them. Do you want to vote for the candidate who would let someone like that out on the loose?

  But tens of thousands of other people participated in similar furlough programs across the country and never committed any kind of infraction. After Horton was apprehended, a group of his fellow lifers in a Massachusetts prison wrote to legislators pleading with them not to apply the lesson too broadly. “We ask that you treat [Horton’s] case as it is, which is an individual case and does not and should not reflect on the . . . people who have accepted the responsibility . . . and are serving their time in a very positive and productive manner.”

  In fact, during the 1980s every single U.S. state had some kind of furlough program. California ran a furlough program, which had also been in operation years earlier under Governor Ronald Reagan. After a prisoner on furlough committed a murder, Reagan defended the program, saying, “More than 20,000 already have these passes, and this was the only case of this kind, the only murder.” Reagan even bragged about California “leading the nation in rehabilitation. . . . Obviously you can’t be perfect.”

  Any criminal justice system imposes costs not just on the perpetrators of crime but on their friends, family, and loved ones. Those costs are particularly acute for children who suffer trauma from absent parental figures. In a social context in which voters and the state understand criminals to disproportionately come from certain areas and segments of society, the vast majority of people can safely ignore those costs, because they are borne by those out of view. A politician can say “get tough on crime,” and the majority of voters won’t worry that it’s their neighbor’s kid who’s going to grow up without a father because he’s doing ten years.

  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 was fortunate enough to attend one of them, Brown University in Providence, Rhode Island, but the same basic factors apply everywhere from the University of Southern California to the University of Wisconsin at Madison to the University of North Carolina at Chapel Hill to New York University.

  All these schools and hundreds of others draw their student bodies disproportionate
ly from upper echelons of society, and they are places where parents and administrators outright expect students to engage in illicit behaviors.

  Almost all campuses have some kind of internal justice system, composed of both campus police and extensive disciplinary codes and procedures for adjudication, appeal, and punishment. When I was eighteen, I found the legal status of the Brown campus police deeply unclear: Were they just private security guards with a fancier name? Did they have the cover of law? I recall seeing them once or twice actually placing someone under arrest and wondering, Can they do that?

  The answer is yes. Brown University’s department of public safety “is a fully-accredited police department,” whose eighty-five members are “licensed as RI Special Police Officers” and “are authorized to enforce state statutes and university rules and regulations.”

  But having had interactions with both the Brown University Police and the actual Providence Police, I can tell you why we used to call Brown cops “Four Point Nines”: because they weren’t quite Five-Oh.

  I remember one night during the glorious week between the end of finals and commencement weekend, when a small group of students had stuck around to work odd jobs or (in my case) rehearse for plays that would be performed during the big weekend when the campus lights up with the prideful glow of thousands of parents.

  Having no studying to do or classes to attend, we devoted the evenings to partying—in this case, in a cinder block suite in a dorm building on campus that had (somewhat famously) been designed in the late 1960s during waves of campus unrest to be efficiently penetrated by cops if the situation called for it. Since the building was largely unoccupied, we’d spread our stuff throughout the suite. Sitting on the grungy-carpeted floor of the common room, we passed around a pipe with a stoner pal in town visiting from another school, getting high and blasting vintage hip hop.

  Suddenly and silently a Brown police officer appeared in the room. The music was loud, and we were so stoned, I have no idea how long he was standing there before we noticed him. The air was so thick with pot smoke—it must’ve made his eyes water. Eventually we realized he was there, and we looked up. I think it was my stoner friend who had the pipe in his hand, mid-pull.

  The cop was young, white, and fresh faced. There was a long pregnant pause, as the room fell silent but for the song on the stereo.

  “Hey,” he finally said, “is that Eric B. and Rakim?”

  “Yup,” my friend said.

  “Love this album,” he said.

  We all nodded in vigorous agreement.

  “We’re just going through the dorms, since it’s commencement week, making sure everything’s cool. You guys cool?”

  “We’re cool.”

  “Okay, have a good night.” And he was gone.

  A moment of hysterical laughter and deep breaths, and then back to illicit activity and foolish dorm room conversation.

  It is possible, I suppose, that had we been in off-campus housing and had a Providence cop shown up on a call only to encounter us smoking pot in the living room, he would’ve done the same thing. I mean, cops do look the other way on occasion. Their authority in the moment of interaction is near-absolute: they can be merciful or vengeful. But I’d bet anything that things would’ve turned out quite a bit differently.

  Which is the point. Would any parent pay $50,000 a year to send their kid to a place where it was likely, or even possible, they’d pick up a criminal record for smoking pot? Particularly the affluent, powerful influential parents who send their kids to schools like Brown? I sure as hell wouldn’t.

  That’s because elite four-year schools are understood by almost everyone involved in them—parents, students, faculty, administrators—as places where young adults act out, experiment, and violate rules in all kinds of ways. And that’s more or less okay, or even more than okay; sometimes it’s encouraged. Rebellion is part of the experience: Oh, the fun we had, the wild hijinks we were up to!

  The modern American bourgeoisie has its own institutionalized version of the Rumspringa, which suspends the highly routinized and proscribed behavioral rules of affluent American life so that young adults can purge the wildness from their systems before becoming orderly, boring, and high-achieving professionals.

  To borrow the framework of Kelling and Wilson, a fair amount of disorder prevails on a modern college campus. It is, by and large, well hidden, which means there aren’t any actual broken windows (at least not on campus; off-campus housing is another story). But walk into any dorm, and you will find absolute chaos and disorder. And the lives of the citizens of these mini-states are disordered as well, particularly as compared to the lives most of them will lead once they are members of the professional classes.

  If you took a lot of this behavior out of the Nation and put it in the Colony—say, out of Harvard Yard and into a big city housing project—it would provide the material for dozens of articles on the pathologies of poverty that hold back poor people of color. People sleep all day; they engage in loud, frequent relationship dramas while having numerous different sexual partners; and they get into drunken arguments and brawls and consume ungodly amounts of controlled substances.

  To be fair, these extremely liberal norms of tolerance can have their own negative consequences. In my time at Brown, numerous friends and people in my social circle fell victim to alcoholism and drug addiction, not to mention acute depression.

  Booze and pot were omnipresent. But other harder drugs were also around, though they tended to lurk at the edges. Some kind of vague social taboo (combined with expense) kept people from busting out coke or heroin at a party, although at other schools where my friends attended (and which I visited), that taboo definitely did not obtain.

  An acquaintance I’ll call E attended such a school, another elite private college in the Northeast, where the attitude toward drugs and alcohol was notoriously and famously lax. “My first year there, there was a new president being inaugurated on the same day as this kind of festival where everyone trips on acid. There was an outdoor space with four hundred kids tripping on acid. You could actually see the president’s inauguration, and the two existed side by side.”

  E and his friends started doing more and harder drugs. “You had a lot of eighteen-, nineteen-year-olds with a lot of money. It was crazy the amount of drugs. Out of my group of friends, most of us ended up doing heroin, and one of my best friends died of an overdose a few years out.”

  By junior year, E was doing heroin consistently, and after he graduated, he spent six months in New York as an addict with a hundred-dollar-a-day habit. Today he’s a successful father and husband working in education. E’s very clear not to blame anyone else for his addiction, but in retrospect he can’t bring himself to quite endorse his alma mater’s posture of extreme tolerance. “It’s like the worst of progressive education. It was an abdication of your responsibility. I never saw campus police do anything about drugs or the administration or anybody.”

  If colleges and universities are relatively permissive on drugs (and obviously that level of tolerance varies widely), it’s because they are for all intents and purposes mini-states, with their very own internal justice systems. Alexandra Brodsky, who co-founded Know Your IX, a student-run anti-violence organization, says there’s a good reason for this. “I’m a big believer in schools handling discipline internally. . . . You have a self-selecting community with its own norms, some ways more permissive [drugs] and in some ways stricter [plagiarism]. . . . The big danger is things being referred to police automatically.”

  It’s those community norms that Kelling and Wilson celebrate, but in the case of campuses, the in-groups and out-groups are far clearer than in high-crime neighborhoods. The same goes (to a certain extent) for what those community norms are. A certain amount of wildness is expected, and you might even find some drunkards breaking the occasional window.

  WHEN I WAS TWENTY-FIVE, I spent a few months in Madison working for the League of Conservation Voters
as a field organizer trying to get John Kerry elected.* I was kindly offered free lodging in the basement of a lovely home on Madison’s west side. I loved the town, with its combination of big university culture and state capital political intrigue. It was charming and livable in every respect, and as summer turned into fall, football season arrived, and the Badgers had a pretty good team that year.

  Now, Brown had had a whole lot of drug use and drinking and partying, but it was not a Big Ten football school with a tradition of officially sanctioned, campus-wide bacchanals each weekend. Nothing I’d seen during my college years quite prepared me for the sheer insanity of a big football program home game. Tens upon tens of thousands of people, of all ages, were shit-faced drunk. Frat row was in a state of debaucherous pandemonium, with dozens of students passed out on lawns and outdoor couches, amid no small amount of vomit, urine, and broken bottles. I mean, it was fun, I guess. Or at least it looked like it would be fun if you were a participant, if you woke up and started pounding beers and found yourself, dressed in red, gleefully among the throng. I’m sure it was amazing.

  But I was working on the weekends, riding my bike through the crowds, and I couldn’t but help feel alienated from the entire enterprise. I also couldn’t help but imagine how this scene would play out if the crowds weren’t overwhelmingly white. I mean, would all this (mostly harmless) mayhem meet with such enthusiastic tolerance if it were a hundred thousand drunk-as-hell black folks streaming through downtown Madison? Something tells me, no chance.

  The couple I was staying with had season tickets to the games, and while they rolled their eyes a touch at some of the excesses, they were part of a community, and they understood and embraced that this was a community ritual, a norm collectively arrived at. So they did not panic about the absolute carnival of disorder that game day represented. It was, in its own way, orderly disorder. Which is one way of describing four years at college.