A Colony in a Nation

by Chris Hayes

  Of course, it’s not always that easy. Large universities tend to exist not simply behind fortressed walls but over a large area that mixes official campus buildings, unofficial parts of the school (houses and apartments rented by students), and residences where nonstudents live: the “decent folk,” as Kelling and Wilson call them.

  And if you are raising your family in the neighborhood of a large, intoxicated student body, you probably wish you could somehow get a little “broken windows” policing. Sarah Koenig, a producer for This American Life and Serial, documented the trials of her family living in a house in State College, Pennsylvania. She showed how onerous it was to be constantly dealing with drunken young people peeing on your lawn, pulling traffic signs out of the ground, and carousing at all hours of the night.

  By and large, though, campus police and college towns’ police departments are not guided by the “broken windows” ethos; if they were, State College, Pennsylvania, Madison, Wisconsin, Bloomington, Indiana, and Boulder, Colorado, would all be police states. I’ve corresponded and talked to dozens of people about their experiences with campus cops, and there are certainly examples of cruelty and harshness, even the kinds of horrifying fatal shootings of unarmed students that have made headlines. As with any job where someone has a badge and authority over other people, there are more than a few sadistic assholes who get off on ordering people around.

  At some schools the division of labor between benign pastoral care for unruly drunken teenagers and actual public safety is institutionalized with two different kinds of forces. At Johns Hopkins there are, a junior told me:

  the HopCops, who don neon yellow jackets, and the Campus Security, who wear policeman-like uniforms. The HopCops exist solely for student safety and are incredibly progressive. They don’t care if you’re hammered or high or anything as long as you’re not hurting anyone. One of them caught me smoking MJ on top of a campus building and told me it was his favorite spot too and to make sure that none of the Campus Security saw me: pretty chill. The Security, on the other hand, are killjoys, often raiding the quads to confiscate alcohol on sunny days. I was ambushed by one after he watched me and a buddy depart a liquor store and head to the dorms. He was waiting at the elevator and told me he saw everything and to take the beer elsewhere.

  You can’t help but notice here that even the harsher force doesn’t write a ticket or make an arrest for underage drinking. But that’s not necessarily how those outside the campus community encounter those same officers.

  Campus police stand as watchmen for the assorted hijinks of rebellious and often out-of-control young adults. They break up parties and make sure no one gets hurt, as opposed to bringing the hammer of law and order down on every drunk underage student they encounter. That is the role they play in the campus community. But they are also there to keep the outside world at bay. They are sentries who stand on the wall.

  Many students of color have told me they found their race automatically led campus cops to think they were outsiders rather than members of the community. Almost every black and brown student, it seems, has a story about being profiled by campus cops as infiltrators. In 2004 at William and Mary, where Dani Perea went to school, she and her friend, who is black, were studying in the library and laughing at something when a

  campus cop materialized at our table and asked if we were guests of the college. . . . He told us we weren’t supposed to be there unless we were guests of the college. . . . He said something like, “You’re going to be in trouble if you don’t tell me what you’re doing here.” . . . My friend pulled out her lanyard with her student ID and showed it to him and told him that we were students. He yanked it out of her hands and told me, “Yours, too,” and scrutinized these things like they were foreign currency, not plastic student IDs attached to W&M lanyards. He asked us if we were bused in for a program.

  This situation is particularly common on campuses in urban neighborhoods that are either actually high in crime or (more commonly) understood by the parents and students of the university to be threatening, places like the University of Pennsylvania on Philly’s historically black and working-class west side. “Penn kids (not me!) would smoke pot on the campus green and other places without getting arrested,” recalled one Penn alumna “There were fraternities known for hard drugs, and they weren’t raided. But black kids would be frisked right off campus.”

  This patrolling against perceived outsiders can have catastrophic consequences. On July 19, 2015, a University of Cincinnati police officer named Ray Tensing noticed a missing license plate on a car and approached an unarmed black man named Samuel Dubose who was sitting in the driver’s seat, just a few blocks from campus. Dubose attempted to drive off, and Officer Tensing shot and killed him. He and his colleagues gave an official account of what happened that differed dramatically, prosecutors said, from what would later appear on the police video.

  Okay, you might say: so elite campuses are disorderly in a way that might make Kelling and Wilson nervous, and yes, the community norms allow a whole lot of illicit activity that wouldn’t be tolerated in a poor urban neighborhood. But the kinds of poor urban neighborhoods that police are charged with keeping orderly are also places of exceedingly high violence. Brown University, for example, lacks shoot-outs and drive-bys. So, you might argue, police at Brown can tolerate higher levels of disorder.

  This is true. I don’t want to overcompare what happens on elite campuses and what happens in poor neighborhoods. The constant looming threat of gun violence in the latter alters much of how poor communities experience crime and violence, and much of the way they are policed.

  But it is simply not the case that campuses are entirely free of violence or that “disorder” in these places can’t plausibly be blamed for leading to a lack of safety. First, the world of Greek life can often be the source of tremendous sadism, abuse, cruelty, and physical danger. In her in-depth exposé of Greek culture, Caitlin Flanagan in the Atlantic documents the number of deaths and liability claims associated with Greek houses across the country. “The number of lawsuits that involve paddling gone wrong, or branding that necessitated skin grafts,” she writes, “or a particular variety of sexual torture reserved for hazing and best not described in the gentle pages of this magazine, is astounding.”

  Then there are the shockingly high rates of sexual assault on college campuses. Our best studies indicate that about 20 percent of women are sexually assaulted during their four years on campus. The overwhelming majority of these assaults are committed by someone the survivor knows, and a relatively small group of repeat offenders seem to account for a large portion of the assaults. And only a tiny percentage of these assaults (around 12 percent according to one study) are actually reported.

  In 1986 a freshman named Jeanne Clery at Lehigh Univer-sity in Pennsylvania was raped and murdered in her dorm by a fellow student. Her parents, frustrated with the lack of information from schools about safety on campus, set about advocating for campus safety and successfully lobbied Congress to pass the Clery Act into law in 1990.

  The Clery Act compels colleges and universities to report crime on campus to the federal government annually as well as issue warnings to students. Major institutions, from Penn State to Virginia Polytechnic, have been investigated for apparent failures of transparency under the law. Subsequent amendments to the act, and developments in federal guidance on compliance with Title IX of the Civil Rights Act, have required increased reporting of how colleges deal with allegations in their internal disciplinary procedures. In the last several years, thanks to sustained investigative reporting and high-profile cases of systematic mishandling of sexual assault claims (like at Baylor University, which brought down former president and chancellor Kenneth Starr), the issue of sexual assault on campus has once again captured the public’s attention.

  Michelle Anderson, the president of Brooklyn College, has written extensively on campus justice and sexual assault. She says it’s a mistake to view campus rape
as a problem distinct from rape more broadly. Given the way rape is dealt with in other environments, from the military chain of command to the regular criminal justice system, she says, it’s hard to make a case that the mishandling of the crime on campus is particularly egregious. It’s more that the crime of rape itself, she argues, so rooted in conceptions of women as property, has not caught up to our current conception of consent, agency, and violence.

  But when the outside world looks at the world of campus justice, it can at first seem downright bizarre that almost none of what happens on campus is ever referred to a judicial system outside the college. Crimes as bad as rape are punished with only a maximum of expulsion, and even that is fairly rare. Over the years, an entirely separate justice system has developed in colleges and universities that encompasses transgressions that are violations of criminal law (theft, rape) and those that aren’t (cheating).

  It’s not just campuses that run their own internal and parallel justice systems. Michelle Anderson, who’s also worked with the Department of Defense in developing policies for sexual assault, told me “in the military community, you have exactly the same thing: ‘These are our boys. . . . He’s a good one. He’s one of us. He’s a leader in the squadron.’ . . . The desire to have a community police itself creates the same kinds of conflicts.”

  Police departments too have means of internal policing. Most have internal affairs departments, and many cities maintain a putatively independent review authority to look into police misconduct. In Chicago, to take just one example, the Independent Police Review Authority (IPRA) is tasked with investigating complaints and police-involved shootings. Its record speaks for itself: in the period between 2011 and 2015, IPRA received more than 28,500 citizen complaints against police. In 97 percent of the cases, the officers received no punishment. Over the past two years, I’ve spoken to two separate whistleblowers, both former Chicago cops, who say they were pressured by higher-ups to dismiss cases of what they felt were clear wrongdoing.

  This same institutional posture disgraced the Catholic Church during the decades-long child rape scandal. The church had its own canon law, which was, let’s say, remarkably forgiving. Priests who clearly were incorrigible threats to child safety were sent for rehabilitation time and time again, shielded from criminal investigation, and given one more shot at redemption, another chance to change their ways, while the numbers of victims mounted.

  For all these reasons, we view the notion of an institution “policing itself” with great suspicion. And indeed, the increased attention to campus sexual assault has led to ever-louder calls for these cases to be taken out of the college disciplinary process and placed in the regular criminal justice system. So it is striking that most survivors’ advocates I’ve spoken with oppose the idea—precisely because it would remove the community from policing its own standards and norms. “What I want to do,” says Anderson,

  is really help us to see the way that sexism and dismissal of the importance of victimization . . . infects the criminal justice system, and see the way that overreaction in the criminal justice system cannot be the model. Calls for mandatory minimums in the campus context are misguided . . . because of what it means for the ways we think about the possibilities of redemption for all humans. It doesn’t mean people don’t do bad things. It means people do bad things and can change and can become better.

  In 2016 a particularly horrifying campus rape made its way through the regular criminal justice system and, against the odds, actually resulted in a trial and conviction. Brock Turner was a Stanford University freshman and swim team standout. In 2015 two foreign exchange students saw him assaulting a young woman behind a dumpster. He took off running when they spotted him, but the exchange students caught him. He was arrested and eventually convicted.

  But Judge Aaron Persky, citing Turner’s exemplary record and the “severe impact” it would have on his future, sentenced Turner to six months, despite Turner’s apparent lack of remorse, or even real understanding, of what he had done. And so his victim delivered an extraordinary, withering, soulful, and courageous statement that when posted on the Internet quickly racked up millions of views and sparked a national conversation. One cable news host devoted her entire hour on air to reading it.

  The broad social rage that the case aroused was exhilarating and righteous but also, somehow, in some way I couldn’t quite place at the time, unnerving. When a rich white rapist at an elite school gets only six months in prison, we want the book thrown at him. We want him to get twenty years. And when the judge bends over backward to laud the boy’s bright future and talent, ignoring the victim, and when the rapist refuses to take responsibility for the horrible violence and pain he inflicted, we want vengeance. We want the judge punished. We sign petitions calling for him to be recalled. (Indeed, as I write this, an effort to recall Persky from the bench is going ahead full steam.) We want to circulate the rapist’s scruffy, glassy-eyed mugshot enough that it replaces the composed image of the swim champ, so that the rapist will know the humiliation of the common criminal.

  THE THIRST FOR JUSTICE is undeniably warranted, as when a police officer shoots and kills an unarmed civilian. There should be consequences, there should be a call to account. In some cases, there should be punishment. And these cases serve to highlight the shocking difference between the mechanisms of justice in the Colony and in the Nation. For if anyone gets the full procedural protections of the Nation, of the Fourth and Fifth Amendments, it is the police. In places like Maryland, they enjoy extra statutory protections enshrined in the law called the Law Enforcement Bill of Rights.

  But I can’t help but feel that in the aftermath of one horrible case after another, we who seek justice are asking the system to produce a result it will never deliver. The day the Turner case was making headlines, I happened to be interviewing Elizabeth Gaynes. Previously married to a man who spent over two decades in prison, Gaynes has spent decades working with the incarcerated and formerly incarcerated at the Obsorne Association, the largest service provider of its kind in New York State. Her friends and colleagues, when considering the Turner sentence and prominent examples of elite criminal justice more broadly, had a thirst for “equality of desserts,” she said. When two Enron executives, who were married to each other and had kids, got sentenced, Gaynes pointed out to me, the judge had the two parents serve their sentences in succession, “so the kids wouldn’t be disrupted.” Where, she asked, is that compassion for others convicted of crimes? “They never think that keeping our moms home for our kids mattered.”

  That experience of two-tiered justice, Gaynes told me, informed the way she and her colleagues reacted to the story of Turner’s light sentence. “A lot of my colleagues had that reaction: he should get more time. Then we had to look at each other and say, ‘What the fuck are we talking about?’ All we were offering the victim in that case was incarceration for this guy.”

  That, says Gaynes, is more or less all we really do offer crime victims. Not healing, or restitution, or accountability—just punishment for the offender. Because as all we know, the American justice system is about wrath and punishment. All we can conceive of with the system we have is maybe, if everything works, to wrench the privileged down into the pit, to lay low the citizens of the Nation and make them crawl beneath the yoke of the Colony. If we are going to so callously capture and warehouse and harass so many of our citizens, justice commands us to ensure that no one is immune. Let everyone be forced to face the scythe.

  But exactly what good does retribution do? If every privileged malefactor in the Nation got his or her proper humiliating comeuppance, if every bad cop went to jail, every bankster executive were sentenced, and every sociopathic rich boy sexual predator were locked up, it would do little to revive democracy and liberty in the occupied precincts of our land. “I spent all morning and early afternoon in criminal court in Brooklyn,” the prison abolitionist Mariame Kaba wrote in the midst of the uproar over Brock Turner’s sentence. />
  Sitting in the sterile, antiseptic gray courtroom watching a parade of young Black men on the assembly line (some handcuffed). The guards, the judge, the overwhelming [number] of lawyers all white administering (white) justice. And I come back here to this ongoing nonsense about the need to circulate the mugshot of a convicted white rapist. As though that has ANY purchase at all in dismantling the system I witnessed/participated in today.

  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. We readily accept punitiveness as the given, as the way we as a democratic polity express ourselves. Our temptation is to seek equality through uniform application of the state’s punishing power.

  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. In the 1960s and 1970s, as Naomi Murakawa details in The First Civil Right: How Liberals Built Prison America, influential jurists and legal scholars pointed to shocking racial disparities in sentences for perpetrators of very similar crimes. 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.