Miller Center

American Forum - Arresting Citizenship: Consequences of American Crime Control

Vesla M. Weaver
September 24, 2014
11:00AM - 12:30PM (EDT)

Vesla M. Weaver
Vesla M. Weaver

Television Broadcast: November 16, 2014

VESLA M. WEAVER serves as assistant professor of political science and African American Studies at Yale. Prior to that, she was an assistant professor of politics at the University of Virginia and a Miller Center faculty associate. Weaver is interested in understanding racial inequality in the United States, how state policies shape citizenship, and the political causes and consequences of the U.S. criminal justice system's growth. Her newest book (with Amy Lerman), Arresting Citizenship: The Democratic Consequences of American Crime Control, explores the effects of increasing punishment and surveillance in America on democratic inclusion, particularly for the black urban poor. Weaver is also the co-author of Creating a New Racial Order: How Immigration, Multiracialism, Genomics, and the Young Can Remake Race in America.

Transcript

Douglas Blackmon: Coming up next on American Forum we revisit our 2014 interview with historian Vesla Weaver, as part of our ongoing special series on race relations in America “What Now?”  In the wake of the events in Ferguson, Missouri and debate and violence that has followed, what should Americans of goodwill be talking about today? We have seen the election of our first black President, the coming of age of a full generation of Americans born since passage of the Civil and Voting Rights Acts.  Yet many of us feel that America no longer quite knows what to debate anymore—we don’t understand the origins of the racial issues before us, and even less so how to resolve them and begin moving forward.  Join us now, and in the weeks ahead, as American Forum looks for new dialogue and perhaps less predictable answers to the questions: What Now? Where do we go from here?

                                          Blackmon:  Welcome back to the Miller Center’s American Forum.  I’m Doug Blackmon.  For most Americans, criminal justice is something distant.  A system built to protect the law abiding, punish law breakers and insure the civil and constitutional rights of the accused.  Our guest today says that primary narrative of American history and values has become a hollow fairytale.  Vesla Weaver and African American Studies professor at Yale University argues that the current American justice system has profoundly restructured the relationship between citizens and the state.  And created a new and growing category of second class citizens.  A group defined by less actual misconduct than by race and poverty.  And that at a time when one in thirty adults is under the control of the judicial system and one third of all Americans have a criminal record, this development poses a grave threat to democracy.  Vesla is the co-author with Amy Lerman of a provocative new book Arresting Citizenship which closely examines America’s impulse to punish, control, and confine its citizens and argues that our justice system has come to contradict cornerstone notions of democracy, citizenship, and governance.  Thank you for being here.     

11:08:41;21               Vesla Weaver: Thank you for having me Doug.

                                  Blackmon: Yes. It’s really great to have you and congratulations on the book,

                                  Weaver: Thank you.

11:08:47;00               Blackmon:: You’ve written a book that is on the one hand very empirical and quantitative and has charts and a tremendous amount of data to bear out the arguments you make but it also has a great many human narratives of the people you have interviewed in the course in obtaining that data. And understanding that data.  There were three young men in New Orleans whose names, at least as you present them in the book, were Renard, Xavier, and Reggie. Who are those young men and how do they fit in to the story you are trying to tell here?

11:09:14;27               Weaver:  We met Renard, and Reggie and Xavier in New Orleans and when we sat down with them they were about twenty, twenty-one years old. Only one of them had had a formal incarceration: about a year behind bars and then several years of probation on top of that. So when we sat down with them um we asked them just a simple question: can you just describe government to us? What do you think of when you think of democracy?  What do you think of when you think of your nation and your state? And what they described to us, and this is why I think it is very important for scholars to sit down with the people actually going through the system rather than just dealing with the empirics and the charts and though of course we have that. Um because what they revealed to us was not a system of democracy, it was not a system that they felt they had input in the governing institutions around them. It was a system where they felt government was meant, not for the common good, not to represent people like them, not to give them services, but to keep them in line. And they used that language, they described to me that the government in their terms, they just used one word, was hard.  I said what do you mean by that? They said well you know democracy don’t get you a second chance. And what they described time and time again to me was that the government that they saw, in their communities, in fact one of them used the saltshakers on the table to map out their town. Here was the jail, here was the police station and here was the court. And they were literally hemmed in in this like Bermuda Triangle and they all had uh uh very routine interactions with all of those systems. That was government to them. To you and I we think of government we think of city hall, we think of you know elections, we think of getting our voices heard. We think of calling uh uh uh uh municipal services right? To fix something. We don’t think of the jail the police station and the court and yet for men like Xavier, Renard, and Reggie, this is exactly what government is to them. This is the primary interface, the primary interaction they are having with representative democracy is through the institutions of criminal justice.

                                          Blackmon:  Is it something about their behavior, the lives they lead, who they are, where they come from. Is it something about their conduct and their profile that makes them encounter government so disproportionally in terms of law enforcement and justice?

11:13:45;00               Weaver: What we are increasingly seeing is that there has been a loosening of the relationship between criminal behavior, right?, running afoul of the law and criminal justice contact. Those are not one and the same. And if you look at uh uh longitudinal studies of youth that follow youth through their cohort what has occurred in the United States, over time, since about the late 1970’s is that a greater proportion of citizens have contact with criminal justice that have actually never run afoul of the law. They have never done something criminal but they’re having contact. They’re being stopped by police. So one of my colleagues uh uh Jeff Fagan said that in New York City the the the chance of uh coming in to contact with police, being stopped by police involuntarily for a black male 18-19 years old is 98% right? Ninety-eight percent of black citizens are not committing crimes. Ok so what we have show is that over time through a variety of policy choices through a variety of broken window policing tactics we have expanded what we’re calling the custodial population. Even as crime you know wasn’t necessarily rising. It peaks in 92 and then falls, so they’re not neatly tracking each other and coming back specifically to Renard, Xavier, and Reggie, um these were individuals growing up in a poor community, high school dropouts, had very few uh uh uh options in the legal job market. Ok? They had done low level stuff. Misdemeanors, uh some low level marijuana in public view, um uh uh one of them had been jailed for possession of a firearm. But all of them by age 12, ok? And every single person we interviewed in the book, their earliest encounter with the state, with the criminal justice state, was before the age of 15. Ok? So what they revealed to us what that maybe sometimes later on in their youth was that they had something more serious. But early on they’re coming to know the criminal justice system in a way that white suburban youth are not. You know, they’re going to basketball games, they’re going to high school. They’re not being stopped by police. Um so there’s been this disassociation between criminal population and the custodial population and it’s important to make that disaggregation because it’s very easy to say well you know they’ve done bad things right? Um many people in their adolescence, and if you go back to this longitudinal study that I mentioned 50% of the population reports doing something that could have landed them a misdemeanor or even a felony. Right? But a very small percentage of that group is actually having criminal justice contact.

11:16:51;07               Blackmon: If you look at the whole population of Americans, including everybody that’s watching you talk right now, watching this on television, fifty percent of us have actually done something we could have been arrested for that would have counted, something other than a speeding ticket.

11:17:00;29               Weaver: Absolutely.

11:17:07;00               Blackmon: But, but its only this microscopic, just single digit of all of us who were ever, who that’s ever discovered, or who were ever arrested, or whatever happens regardless of whether a person has, has ever actually done anything, if you are black, the likelihood is you have had some encounter with the criminal justice system. You’ve been accused, you’ve been questioned, you’ve been at least arrested briefly, um, uh in some connection.

11:18:43;16               Weaver: Particularly for poor young black men in uh urban low-cut, locations, m-kay, so one of the other interesting facts over time, people start tend to see this and I don’t want to, you know, make the story too simplistic. It’s not just a black versus white phenomenon. It’s a within black phenomenon.  In other words, if you look over time uh uh uh, Bruce Western and others have shown us that upper class, affluent, highly educated, you know, college educated black men did not increase their share of imprisonment over time. Who increased their share of imprisonment over time was lowly educated, deskilled, young, urban uh black men. So it very much is a race and class story. Its low income, uneducated black men that are having this kind of contact.

11:19:34;13               Blackmon: Now we’ve had a lot of conversation in the, in the U.S. in the last few years about mass incarceration and we we sort of generally know uh that there is this dilemma of the huge percentage of young, African American males in particular who are incarcerated or have been incarcerated. But you go beyond just documenting the, you argue that there are some consequence to that beyond just that it seems to be likely unfair.

11:19:59;00               Weaver:  We’ve become an anti-democratic system and I use that term very explicitly to mean um if you hold up prisons and courts and police agencies up to the the measures we traditionally hold other governing institutions up to: Are they fair? Are they accountable to the public? Do they treat people equally? Is there transparency? Do citizens have voice in those institutions? Prisons, police stations, and courts time and time again fail right so we’ve set up a system that is operating under principles that don’t govern our democracy. They are unequal, unaccountable, unfair, and they do not give our citizens’ voice. Now let me make that a little bit more concrete, right. What do I mean by that? You can call an institution anti-democratic and that, you know, what does that actually mean in practice? To give you an example, if I go out and I am stopped by police, and uh, somebody uh miss handles me or stops me unfairly without enough evidence without a cause, in most jurisdictions, I have absolutely no recourse to contest that stop. I can go into a police agency, I can uh uh make a complaint, and usually nothing happens with those complaints. And in some cases, so in the case of Rodney King for example, his brother went in the next day and made a complaint. Do you know what they did? They ran his his name to see if he had any warrants on him. That is not being responsible and accountable to citizen input. Now some might say, you know, it’s easy to say why should we treat people democratically, these are after all criminals – though I’ve mentioned why that’s not exactly right. These are after all, the criminal justice system is meant to deprive liberty. It’s meant to be a place that doesn’t have voice equality uh and responsiveness. And and Amy and I actually really strongly argue, no, that’s not right. You can have effective crime control; you can deprive liberty for a period of time without operating anti-democratically. And in fact, if you look at our own history, or if you look at nations abroad, they often imprison, police, and surveil their communities without doing it anti-democratically.

11:22:57;26               Weaver: They still give citizens the ability to submit their grievances. They still give citizens the ability to be heard in the in the process of their nation. They still are accountable to the public, they let the media come in and see their prisons. Prisons in the U.S. and police uh uh uh, are vastly unaccountable to the broader public and also to the citizens that are in its wards. And we argue that that actually damages crime control in the long run. Because the citizens that live in the communities where uh uh where many people are being stopped unfairly, you know, force is used on them unfairly. What happens? They come to have uh uh what’s called less legitimacy in the system. Well if you don’t feel your state is accountable to you, when called upon, are you going to testify in a case, are you going to serve as a witness, are you going to call the police when you need help? No! And we found time and time again with the folks that we interviewed, they said, “We won’t call the cops if we were on our death bed.” We had people that had been hurt that would not call the police to aid them. That’s a system that has lost legitimacy.

11:24:11;28               Blackmon: It’s the old notion of respect for the law.

11:24:13;00               Weaver: Absolutely. Yeah.

11:24:15;29               Blackmon: The um at the same time though, we have had a sort of tacit understanding in American life, uh, and it’s uh most uh canonized in popular media, but we, we have this sense that uh there are all these lawbreakers out there. We also have the sense that America’s different from a lot of the other countries you’re talking about, and it is different, um, demographically, in key respects, we have always had a big poor population. We have, because we have not been the kid of social system, uh, that eliminates poverty, or that eliminates some of the more difficult places, particularly in urban areas, uh, we we have had a kind of diversity that is both negative and positive over time in terms of the behaviors of people, and we’ve had this tacit agreement that we’re sort of counting on the police and the prosecutors to use their judgment…

11:25:04;13               Weaver: Mhmm.

11:25;04;50               Blackmon: …sort these things out, that this young man that gets picked up, uh, on a corners somewhere that while it may be the case that the evidence against him for whatever he gets charged for that night is a little bit flimsy, but we count on that the police can be trusted…

11:25:19;10               Weaver: Right.

11:25:20;00               Blackmon: …to take the kid off of the street that needs to be taken off the street. Maybe it’s even good for, for the kid h-himself. So we have the, we trust the, homicide detective that we see on Law and Order, that the techniques he uses to convince the bad guy to confess, uh the this this the the terrible crimes like ones that we’re very familiar with here today recently, we kind of hope that the police will be able to extract the truth, out of some character, by whatever means. So the tacit agreement is that we, we accept that the system is trustworthy and give it some latitude, uh, even if that’s sometimes that involves some things that are messy. Is that okay?

11:25:58;00               Weaver:  During the 1970s we actually removed a lot of discretion, uhm, from judges. Um. We made the system procedurally more fair, right? You can no longer be beaten up, uh though it happens, you can no longer be beaten up in a police station, uh and the, you know and the confession coerced from you. You can uh uh um, uh there are some safe guards that make sure that you’re Mirandized, that you have your day in court, a jury of your peers, etcetera, etcetera. But what’s happened over time is when we removed that discretion, what happened is we made everything procedurally more fair but not necessarily more democratic. Okay? We removed the discretion from one point in the system and put it to another point in the system. So the police, for example, have enormous discretion in deciding who to stop, how to treat them, who to bring in, how to you know. Prosecutors have an enormous discretion in deciding who to charge, what evidence to bring, uh uh uh who gets the charge of of felon versus misdemeanor. Um. And what that invites is it invites a system that is, you know, heavy on discretionary actions. These are after all human agents that make decisions. Um. And who tends to to um get charged and convicted and stopped using this discretion is, right, anyone’s guess: poor young folks.

                                  Blackmon: Reform brings with it, uh, in fact, more injustice in a corollary kind of way.

11:28:08:51               Weaver: Mhmm. Aboslutely. And and and those reforms, and I’ll give you a sp-, another specific example, did not, uh, make the system, they may have made it on the face more fair and more just, but they did not make it a system uh that wasn’t prone to error. Uh so another example is the case of um Adolf Lyons, who was stopped by police in LA, uh, for you know something minor, a broken taillight, uh and he was um uh uh put in a chokehold after they asked him to you know uh put his hands up and he reached for a wallet or something like that, right, he was put into a chokehold. He then passes out, defecates, uh, um um, spits up blood. Later, he uh uh sues the LAPD and says um uh I want to stop the practice of chokeholds uh um by the LAPD. Alright. And at that point in time, most of uh uh the chokeholds the LAPD was using were on uh uh black men. And most of the people that had died from chokeholds were black men. Okay. So the U.S. uh Supreme Court says, um, well yes you know this was uh an awful chokehold, but you do not have standing, again consider what I said uh about uh citizens having voice into their institutions that regulate their daily lives, you do not have standing to sue and to enjoin the police from using the chokehold practice because you cannot demonstrate that they will use it on you at some point again in the future. This is why, what I mean by being able to hold our governing institutions accountable even if I am non-law abiding. I need the ability to hold my institutions accountable uh uh to my grievances if I am treated unfairly.

11:30:08;07               Blackmon: Why has that happened? And maybe this goes beyond really the ground that you covered in the book, but what’s what’s your theory of why have we gone from uh a period just forty years ago, when the Supreme Court revolutionized uh the the, the whole framework for how a person could be arrested and the things that had to happen to them, even though it hadn’t been much, many years before that the Supreme Court had had validated whipping people in prisons and you know, and gross physical punishments to people were, were still authorized.  But then we go through this period of radical change that did bring an end to terrible deaths and abuse particularly inside prisons. But how have we gone from that set of views to to one that seems so indifferent to the kinds of issues that that you bring up?

11:30:50;55               Weaver: A few things, so you’re right, we have this brief sort of um opening up moment.  We had a radical prisoner rights movement, uh, that that that coalesced with the Civil Rights Movement that brought some of the most arbitrary injustices in the prison system to light. We had case after case uh uh uh of of um uh procedural innovations, this is when we really get expansions in due process rights. At the same time, over time, those procedural uh opening up you know have have been chipped away at. Prison Litigation Reform Act passes, which basically removes access to the courts for prisoners who claim uh mistreatment or abuse, um, and puts incredible barriers on what they need to get over to bring, uh a suit, um in the cr-in the in the system, so. For example, if I’m a prison inmate and I have uh uh um uh been abused or sodomized or something happens to me while I’m in that cell, and I wanna bring the grievance and I wanna sue the institution, I have to, in most jurisdictions, hand my grievance to the very officer that abused me. Uh um. I have to actually show physical injury ok?  So there have been cases where, uh g-guards uh put cigarette butts out on somebody’s arm, but because it didn’t uh result in a lasting injury or a scar, they didn’t have standing. Well in a democratic system if I can’t use the courts then I can go vote I can uh contact my representative I can get in touch with the media if I am a prisoner the courts are almost my only avenue to have grievances heard. So if you take away the courts you’ve basically taken away most of my democratic voice. I can’t vote, I most of the time won’t get access uh to the media. I can’t even write in a prison newspaper in some places. Right prisoner newspapers have been largely shut down. Prison unions have been largely shut down over time. Um though in the wake of the Prisoner Rights Movement there were uh hundreds uh uh of newspapers and and and very organized prison unions operating around the country that often made prisons more safe, decent places, but also expansions and prosecutorial immunity.  So that if the prosecutor in a case handles uh uh the evidence badly um so there’s been cases of the you know the prosecutor knows that the offender was a white man and they charge a black man instead right the the the defendant has almost no recourse because of why prosecutorial immunity you cannot bring a a a civil charges against a prosecutor um and police enjoy enjoyed uh qualified immunity.  It means that these agents in our government and they are governing institutions are not accountable to the public. They can operate with wide discretion and they have immunity. They cannot be held to account

11:34:49;02               Blackmon: Let me play the devils advocate with you for a moment though.  If we back up and we look again at why did this happen, how did this happen?  And you go back to the 1970 or there abouts and you have the sense in the country at the time that crime is skyrocketing, which is was, and uh and continued to for another 20 years uh there’s the sense that that this new surge of drugs and behaviors that go with it has become a huge problem in the minds of most Americans. There’s also a real sense that that really bad people are getting away with more and more bad things and the technicalities are getting them off and the police are handcuffed they don’t have enough guns there aren’t enough of them they’re overwhelmed. Uh and so over in response to this this very existential threat perceived by many Americans there begin to be all of these changes in the law to make it uh more difficult. .

11:35:52:15               Weaver: Right, right.

11:35:52:17               Blackmon: for people to get out of things and much more great penalties if you are a repeat offender.  Three strikes you’re out that sort of thing. One of the most remarkable things to me about that whole period all the way up into the 1990’s uh is that if you look at the public opinion surveys those are things that are overwhelmingly supported by Americans including African Americans.  

11:36:09;17               Weaver: Mmm Hmm mm hmm

11:36:09:19                    Blackmon: You go into the Attorney General Holder has told me stories of going into housing projects

11:36:14;19               Weaver: Absolutely

11:36:14;20               Blackmon: uh when he was a US Attorney in Washington D.C. and talking about diversion programs and having folks there say well that’s all fine but first you should arrest all those kids out on my

11:36:22;28               Weaver: Mmm Hmm mmm hmmm

11:36:22;29               Blackmon: out on my stoop and get them out of here.

11:36:25;14               Weaver: Mmm Hmm mm hmm.

11:36:25;16               Blackmon: And so in some respects one can make the case that the problems you’re identifying are outgrowths of reasonable responses to a national crises.

11:36:35;21               Weaver: The reasonable response went too far.  So um and you’re absolutely right.  So I’ll start first with your question of well blacks themselves often support uh uh um aggressive handling uh of people. Sixty percent of the people in the surveys we used had also been victimized often before they were justice involved, ok?  So it’s not the old narrative of like you know the white victim and the black predator these are black communities face rates of predatory violence that are absolutely and epidemic.  They do not want crime any more than than uh safe white community they want communities that are safe that are decent uh where they can walk down the street without fear of their life. However, also if you look at public opinion surveys they also want to be treated fairly uh by the police. They want the police to have a presence but they don’t want to be uh uh uh have force used on them um when they’re not uh an offender. So I think its important to recognize that its not this like you know democratic impulse look we had this rising crime rate people were scared um we had a moment where it seemed like uh uh things had gone to far the other way and then we cracked down you know. People were asking for things that would make their community safe and they didn’t get them. A big part of why we saw the militarized police force out in Ferguson has to do with a program that many people forget but that that was absolutely one of the biggest fastest growing agencies in the federal government. It’s called the Law Enforcement Assistance Administration and it dispersed billions of dollars in federal funding with almost no strings attached to localities with outdated uh uh and sort of parochial police forces. What happens, what transpires across the course of the decade from 1970 to 1982 the life course of the agency, is that police agencies receive tanks armored tanks they received bullet proof vests they received billions of dollars in funding and they do what anybody does when they get uh uh more money right they build up infrastructure.  That’s another way that we went too far. So it’s not just that we passed uh uh more and more habitual offender laws, you mentioned three strikes, its also that we gave uh police forces the tools for incredible man power and incredible amounts of police surveillance.

11:40:09;23               Blackmon: And when you said Ferguson obviously you’re referring to uh the killing of this young man, African American man in Ferguson, Missouri, Michael Brown and uh and uh that and uh the events that followed that, this militarized force uh militarized police force that was seen there. Um, how big a problem though is it for the police to have sufficient fire power to deal with the situations? I know that in the debate around that, people were alarmed uh to see these tank-like things and all these guys looking like they were in the army and we do have this tradition in America that the military doesn’t engage in police and to so to see the police looking like and behaving like the military, that’s part of why it’s disturbing to us. On the other hand, there were a lot of police officers and a lot of wives and husbands of police officers who said what are you people saying?  You know, they shouldn’t have enough guns? This is easy to say at this moment but when my husband is dead uh after some incident which he’s been overwhelmed, then don’t don’t talk to me about too many too much fire power in the hands of the police then.

11:41:09;14               Weaver: I mean I’ll come back to the book and the communities that we spoke with. People feel, right, and one of the arguments we make is that, um, you know, the police are not a separate arm of government. They are part of our American government. The criminal justice system is part of our democracy and so we should be interested and concerned with what citizens learn through their interactions with that arm of government.  And what they learn is what we call custodial citizenship. They learn that the police are not there to protect them. The police are there to keep them in line and to harm them. They learn that they are not citizens with equal voice worthy of concern and respect. They learn the anti-democratic aspects of these institutions and it’s reflected in the anti-democratic aspects of this clientele. So, I’ll give you an example. Many mundane behaviors that I, you and I probably take for granted, walking down the street carrying a bag, having friends over to our house. Uh uh Sarah said to me um ‘Oh no, you can’t, you can’t have friends over. Because if the police see too many people are coming to your house, they automatically think you’re selling drugs and you’re gonna have a police force uh at your house, so I just avoid having friends over.’ Okay. What is this teaching people in these communities about their standing in society? About their ability to engage in the behaviors that you and I take for granted? I had other people, I had one guy who sticks out in my mind, Charles, because he actually was one of these folks that said ‘Oh no, the police treated me fairly. I like the police. I’m glad that we have the police to protect.’ And then I said um…yeah so um uh uh you think the police are fair, that’s great. And he said ‘and you know, you just gotta do certain things. Like for example, I never ride around in the car with more than two.’ I said, ‘More than two?’ He said ‘more than two black people. That’s that’s pretty much, like that’s illegal.’ Right? That’s the system. They’re learning anti-democratic lessons about what things they can and cannot do. I’ll give you other examples. Uh uh we had people that said to us um um well, I I don’t walk this certain way and so I take an hour to get home cause I go the long way around because if police see me walking through this area after work, doesn’t matter what I uh you know what I’m on my way to do, doesn’t matter that I’ve come from work and I’m wearing a uh a a uniform, I’m gonna get stopped. So I add on an hour to my trip just so that I can avoid that kind of interaction. And the three boys that I talked about uh that I began the book with, Renard, Xavier, and Reggie, um, they said “Oh yeah, if you if you come ride through through our neighborhood right now and you’re in our car, we’re gonna get stopped. They’re going to think that a drug deal is going on. Why? Because you’re racially incongruous. You don’t belong in this neighborhood with us. So somethings going down.’ Right? These are not the kinds of lessons that inspire democratic citizenship. The further thing that happens is, cause we went into this thinking well, people don’t participate in political life when they have this kind of interaction because they’ve been formally disenfranchised by felon disenfranchisement.

11:44:48;00               Blackmon: Meaning they can’t vote.

11:44:49;00               Weaver: Right, they can’t vote. Actually, no. It’s much deeper than that. They don’t they don’t vote, they don’t participate in any sphere of government. They don’t get involved in civic associations. They don’t call uh uh 311, which is a service for, you know, getting you know, your city government to fix your street lights, because they fear police interaction. They don’t feel like voluntary participants in our democracy, they feel like involuntary subjects. So the best thing for them to do, and I had many people, probably the majority of the folks that I interviewed, tell me ‘Oh no no no. You gotta stay below the radar. You gotta keep a low profile. I find a way of mailing in my check to the court when I’d have to pay a fee rather than going in, because if I go in there, they’re gonna find something else to lock me up for. I need to keep my distance from the government, I need to stay below the radar, I need to keep a low profile, I need to keep my head down, I mean these were the, again and again  and again, this kind of vocabulary that you don’t find in middle class white suburban neighborhoods, this idea of being invisible. It’s a politics of invisibility. You must be, you know, uh uh absent from government because if you show your face too much, they’re gonna think you’re doing something.

11:46:09;00               Blackmon: Would you put it that way or is this something that’s more, an unfortunate derivative of a series of things that have gone too far or           a design to essentially create a replacement for the Jim Crow legal system that was there to uh to suppress black aspiration and black opportunities in another era?

11:47:33;00               Weaver:  At the end of of reconstruction, uh you get this massive effort to arrest and confine, I mean your book shows this uh and the convict leasing system springs up in the collapse of the ghetto that happens in the 1970’s, you get this effort to then confine.  How this country tends to deal with poor, disadvantaged, marginal, pariah people, is not through expansions in welfare, is not through expansions in suffrage, through bringing, through widening the inclusiveness. The way we often deal with the poor is through control. Right. Through social control. So some would say that deindustrialization played a role in this. Right, you get massive increase in black joblessness in the city during the 1970s as a result of a move from a goods producing economy to a service producing economy. Blacks are left in concentrated areas of poverty, what happens then is the criminal justice system takes over. And often I think the police in this story are treated a bit unfairly because, after all, and I have many police that I came in to contact with through this book. They are given the tools only to arrest and confine. They are not meant to handle all manner of social ills in this country. We don’t respond to social problems happening in poor areas the way we probably should have. It wasn’t random that the people that were going to suffer the most and be stopped and policed and arrested and surveilled and sent to prison, were going to be the people that were the fallout from the war on poverty. We shouldn’t be surprised, it’s not a mystery um that that was going to be the group that was going to be targeted. A lot of folks that we interviewed, they said to us, look I didn’t have a choice. And they said you know, look, I, I had child support payments climbing up, I’m thinking about Burt specifically. He had just been released from prison for five years. And he said, I really felt like a man. I was providing for my family. I went out, I sold drugs, these court costs, the child support payments had been stacking up, stacking up, stacking up, but I was on top of everything. But then I get hit with this conviction. But I wouldn’t have done it any differently, because I was going to jail one way or another. I’m paraphrasing him. He said, I was either going to jail for not being able to pay for my child support because I couldn’t get a legal job. Or I was going to jail for selling drugs. But at least I protected my family and provided for my family during that time. A lot of the people we interviewed were extremely marginal. They were at the margins of the labor force, they had inconsistent work history, they often found, I had one women who, she broke my heart, she only had a misdemeanor and she couldn’t get a job at CVS. Right, she had a misdemeanor on her record so she couldn’t get a job. She was homeless and pregnant at the time and she uh uh, that was her situation. So a lot of times, we don’t consider that there is this other half. We talk about criminal justice, but it’s also the state of, the peril of poverty in these communities.

 

11:52:10; 1 Blackmon: And the democratization of poverty, I take it. Because, these sorts of things, there are more white people and other kinds of folks who are not African American vulnerable to falling in to poverty now and some of these terrible outcomes begin to extend across a more diverse array of very poor people. I think the data bears that out. But its fascinating and so foreign to middle class ears, to our bourgeois ears, this idea of a, that engaging in criminal behavior and selling drugs is in effect, for certain people, the pursuit of the American Dream and actually showing responsibility and classic masculine notions of taking care of your family. That’s a really foreign concept but the idea that, that, within a certain group of people or in an individuals mind that that’s really preferable and that that’s a really attractive figure in a community, than a lazy guy who’s living off the government, this other classic caricatured stereotype that middle class people get worked up about. Which is better, in a sense, the guy who is actually working hard at an illegal thing, or the guy who’s not working at all. Uh, that’s really fascinating.

11:53:20; 2 Weaver: When you’re faced with somebody who was locked up for four days for using a curse word, it sort of, while she was pregnant, it blows my mind. What part of effective crime control do we get out of that? Instead, we are creating the very population that we’re trying not to, right? And we’re creating deep suspicion, deep distrust, in communities where what we need is these communities to be trusting and involved and involved with their civic groups and calling the police when they need help.

11:54:14; 1 Blackmon: Well your book and that very point and a number of places in the book I couldn’t help but, it sort of took me back 20 years ago to a time when I was a police reporter for a big metro newspaper at the height of the drug war. And I spent a lot of time, it was a great thing to do, always a great story, was to work it out to go out with the police on a big drug raid. And TV loved that more than anything, but as a print journalist it was still quite a story. But I remember a particular night in Atlanta being with this group of sort of suburban police agency that was particularly excited about this very military style operation and lots of people involved and everybody in bulletproof vests and big guns and uh, and ramrods to knock down doors. All about this one apartment that had been identified by an undercover agent and then this huge team of people come charging in in the middle of the night, knock down the door of this apartment, burst in to what is going to be this drug king pens headquarters and it’s the living room of a grandmother and her husband. And on the walls there are photographs of all the grandkids in their high school graduation gowns. It’s a classic lower middle class elderly family’s apartment. But, they have a 16 year old grandson who’s living in a bedroom in the back and he had sold drugs to someone in a fairly inconsequential transaction and that is what had lead to the scene of a 70 year old woman and her 75 year old husband handcuffed and on the floor in the living room of their apartment. And I confess, that was the moment I began to say ok maybe there really is something amiss in where all of this is going.

11:55:59;1  Weaver: And that kind of interaction is surprisingly common.  This has become such a ubiquitous aspect of low income black neighborhoods and low income black men that it's actually become part and parcel of the experience of being from one of those neighborhoods. 

11:57:34;20Blackmon: So we have this this gigantic surge in arrests in America and incarceration and I think the general numbers are that the so from the first half of the twentieth century into the 1970’s there generally are about 100,000 to 200,000 people in prison at all times   

11:58:24;2  Weaver: Fluctuates a little bit…

11:58:26;22Blackmon: Yeah moves around a little bit, but that's about where the numbers are and then you get to around 1980 it's gotten up to about 300,000 people are in the system and then this gigantic thing occurs and we go from over the course of a little more than but right at 30 years we go from 300,000 to 1.6 million people are in the system, this gigantic surge.

11:58:46;0  Weaver: Right, and that's just on one day, any given day. (Blackmon: exactly). If you were to actually look at…

11:58:50;07Blackmon: Everybody who passes through…

11:58:50;23Weaver: Everybody who passes through across their life course.

11:58:54;07Blackmon: Millions and millions. Yeah exactly, and that's that's how you end up with this number of that a that uh five percent of all people of all young by a young adults that have been incarcerated 25 percent have…

11:59:03;11Weaver: Yep, 25 percent have been arrested.

11:59:04;2  Blackmon: Have been arrested yeah. So this huge numbers, which again sound very far into middle class ears. You know I don't, in the world that I live in, a quarter of all the people I know have not been arrested, five percent of them uh you know. (Weaver agreeing). Now I'll confess, I know something about the criminal justice system I was I'm I'm not as pure as driven snow, you know I made some mistakes when I was a young man. My first my first knowledge of the police came from uh being on the wrong side of that equation. Uh and so I have some sense of the of that of how those things happen, but my life was not uh completely derailed by those events (Weaver agreeing). But but the point I actually want to get at though, we we had this gigantic surge in arrests, but now it's going down. (Weaver: right). And it has been going down for some years. Now it's still very high, but the numbers are going down uh particularly the number of African American males is going down. And simultaneously the group of Americans whose incarceration rates are going up the fastest are women and I think white women specifically. So men so black males... 

12:00:00;2  Weaver: From a very low base.

12:00:02;02Blackmon: From a very low base, exactly. So it's a statistical anomaly. But still, it's a fascinating thing uh, so and I believe the explanation for that for the white women element is that in some respects a group who were buffered in some respects in the past from actually facing the penalties for for actions that they took. Now, because the system has been reformed, and must be more uh equally applied. Uh so a young woman who gets mixed up in drugs is more likely to actually have the penalty imposed on her. Uh but but at the same time we have the the the big numbers of African American men are going down, so is the is the problem fixing itself?

12:00:41;06Weaver: Ok, so yes and no. I'm a little bit uh less optimistic maybe um, partly for a number of reasons. So, the first reason is the BJS, the Bureau of Justice Statistics, just released a report showing that actually the rate of incarceration is now in the last year not going down.  So we had a brief couple year’s moment where it looked like we were at sort of a tipping point. Part of that is we just got so, you know, high up there that it the more it, there's sort of not a surplus population of to imprison anymore, right, so it had to kind of reach of tipping point. Um uh but the other reason I'm a little bit less optimistic is that a lot of that movement, if you look state by state um it was a result of um uh... so for example, California. California passed what is called realignment, they were under court order. Their prisons had gotten so packed and overcrowded and ballooning at the seams, that they needed to uh uh reduce their population and the court gave them a time table and said you've gotta do this. They passed realignment and what that did is it basically emptied the prisons a little bit and sent those people to local jails. Why am I less optimistic about that? Because in our interviews, having jail contact, is not necessarily better. Moving people from prison systems to probation or community corrections is not necessarily a better system. In fact, uh Renard even told me, he said; look I took the year in prison. They offered me ten years probation and that's just giving me ten years to to uh mess up. You know ten years for them to find some little something I'm I'm I have a felon in the car with me; I'm associating with a felon. I'm gunna take the year. So it's it's not necessarily the case that moving people to probation and parole or probation and local jails is any less of a correctional system. That still, they're still learning some of the same things. Now, it's a little bit better maybe, you know, uh uh they have more freedom of movement, um they can get jobs and such. Um, but, when you move people to probation and parole, um; the requirements of probation and parole are things that like it would be hard for anybody uh to comply with.

12:03:04;0  Blackmon: Like What?

12:03:05;0  Weaver: Like, you know, you can't move, uh uh go to another city. Right, so if you've gotta visit family in another city you've gotta get some uh uh in most systems, in most jurisdictions, you gotta get approval for that. You can't, now again, these are neighborhoods where you know a lot of folks we interviewed, they said to me, 85% of their known you know family members, church members, friends, had some sort of record. You can't be associating with somebody with a record. So it makes life very difficult. You need to get a job in a certain amount of time. Well, who's hiring felons? Ok, is UVA hiring felons? Um so it it's, life becomes very precarious in another set of ways. Um, so we would argue that moving people from from one system to another system within the same system, you're just fiddling with the numbers, you're not really reforming the system.

                         Blackmon:  And a lot of these things you’re talking about like the probation system increasingly are problematic in their own ways.  These are private contractors.  People are going to see that the probation officer actually have a vested interest in extending probation as long as possible because they get paid every time someone comes to visit.  People go back to prison or not being able to pay the fees associated.  It does begin to sound like some of the things that my research was about from a hundred years ago where people ended up re-enslaved. All very problematic things.  How did you get so interested in this?

                         Weaver:   Two reasons.  I spent a summer in Montgomery, Alabama with inmate mothers.  I was working for the Southern Poverty Law Center but I happen to volunteer at this prison for women.  I noticed that the children were travelling from a hundred miles away to visit their loved ones.  Many of the people that were incarcerated were incarcerated for being attached to somebody that was selling drugs, writing a bad check, sometimes even reckless driving.  I mean, just low level things, not to say that those things aren’t bad.  And I got interested in it there.  The second, and I actually ended up donating my car when I left Montgomery to one of the inmates because you’d be surprised even where I live now New Haven, Connecticut, there’s almost nothing given to people when they leave the system.  Literally they’re given a couple dollars and when they’re not on probation and parole they have almost no aid to get a job, to navigate life on the outside, to be reunited with their families, to get to knowing their children again, there’s very little.  And so when I made it to grad school I started to notice, and I’m a political scientist, I went to a political science program and I now teach in a political science department.  Why is it that political scientists do not see this as a major way that the state that our government is interacting with poor communities.  This is a central face of the state to many poor communities.  This is government.  We had people tell us oh government you know like when we asked them what’s government to you? Oh the criminal justice system, you know, the sheriff, the police, the mayor, it was just odd.  Would you ever describe government in those terms?  And so I started my main intervention with Amy was to say look, we got to this system through explicit policy choices.  Those policy choices impact people’s lives in political ways and people learn citizenship.  They learn about their state.  They learn about their standing as citizens.  They learn about their worth.  They learn about equality through the criminal justice system.  And in many ways they learn and unlearn citizenship.  They unlearn democratic citizenship.  So I felt like it was an area where we were treating it like it was this side system.  This is government.  More than the welfare state for some of these communities.  The carceral state is what they are seeing.

                         Blackmon:  A few months ago Attorney General Holder sat in the same chair that you’re in and I talked to him about some of these same things.  And I pointed out to him that he and President Obama both talked a lot about mass incarceration and expressed very clearly sincerely their concern about where this system has ended up.  But I said to Attorney General Holder that I said but at the same time you’re still the mass incarcerator and chief.  And it wasn’t long after that that, in fact that day, he announced and later President Obama announced more efforts to relax some of the release guidelines.  What has turned into I think a very substantial effort to reexamine some of these issues has been underway.  But is that the solution?  Is that the direction?  Is enough being done?  And if not, what is the solution?

                         Weaver:  You know, I was thinking about the solution this morning.  The solution is to not to be doing what we’re doing now.  That is effectively, it’s to just, first of all we need massive sentencing reform and not just at the federal level.  Right?  Most of the criminal justice system is not federal prisons, it’s at the state level.  It’s at the local level, local jails, and county jails.  So we need to relax some of the very harsh sentencing guidelines, habitual offender laws.  We need one of the best things that we can do and if Eric Holder was sitting here maybe I’d tell this to him, is to immediately cut the funding.  Federal grants gave rise to this behemoth.  Cut the grants.  Once you build a prison they will come.  Once those beds are there they will be filled.  I’ve never heard of a prison that was at 30 percent capacity ok?  So cut the funding.  The system will decrease on its own.  And this is what a lot of the Right on Crime folks, there’s this great bipartisan coalition forming between hardline conservatives who are now seeing that this is a major and very expensive way to deal with crime. 

                         Blackmon:  Rand Paul, Senator from Texas.

                         Weaver:  Absolutely.   The whole Rand Right on Crime initiative is that we need to scale back pretty radically.  It’s not going to be tweaking one drug law. It’s great, I applaud the fact that we retroactively worked, eliminated the, or close to eliminated the crack cocaine sentencing disparity.  But there’s many sentencing disparities.  There are many laws on the books that give people a hard criminal record for something that 30 years ago would have been dealt with through citation.  It would have been dealt with through a fine.  So we need to massively reduce but I would not stop there.  Ok?  So incarceration is one piece of the puzzle.  The other piece and though we have much good statistics on this is the huge increase in police stops over time.  The huge increase in misdemeanor convictions.  It is very easy to turn out misdemeanor convictions and prosecutors have almost no incentive to not to charge them.  They are very easy to get through.  So it’s also on these sort of lesser more mundane aspects that we need to stop feeding the system, stop growing the system.  If you look at New York six hundred thousand people being stopped by police in a year?

                         Blackmon:  Though at the same time those numbers were skyrocketing.  And those incarceration numbers for the whole country were skyrocketing.  Crime rates did turn and begin to fall precipitously.  Is there no possibility that those things are related?

                         Weaver:  Virtually every social scientist that I know finds that the link between crime rates and incarceration is a very messy one.  They do not track each other neatly ok?  Partly because the way we punish is not simply a function of crime.  You can have crime and decide to deal with it in other ways.  So I would say we are at a very good window of opportunity, crime rates are low though they are still staggeringly high in some areas.  We still do need to protect people from violent harm.  But now is a good moment to begin revisiting the system because we are at the safest point that we’ve been for a long time. 

                               Blackmon:  Well thank you for being here.  It’s an important book. 

                         Weaver:  Thank you so much, Doug.

                         Blackmon:  The book is Arresting Citizenship by Vesla Weaver. 

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