On Racial Judgment

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David Theo Goldberg, director of the University of California’s Humanities Research Institute, discusses the hidden assumptions about race in the policing and judgment of crime. 


The problem of immigration has returned to disrupt almost all societies of the political west. And where immigration is marked as a socially explosive issue, considerations of crime mark the rationalizations like flies to overripe fruit… In France, where ethno-racial counting is formally restricted, as in much of post-War Europe, how is it — and how well-known —that between 40 and 70 percent of those in prison are Muslim, despite making up just under ten percent demographically? Of course, this is all predicated on taken-for-granted presumptions about race in a society, on the one-dimensionality of race and presumed singularity of racism, on what the “given” racial categories are, and on available data and its forms.


There are no doubt criminological theories about what produces such disproportionalities, but they tend to be cast in generalities: broken window theory (the negative effects of degraded urban environments), alienation and ‘anomie’, deviance and social control, migration and terrorism, depending on our national histories of social theory. What one less often sees is analysis of micro-structural factors that reproduce dramatically disproportionate macro-sociological crime rates, and that may powerfully shape attitudes and presumptions, not least, those of the people who are tasked most immediately with the policing and judgment of crime. In this account, I discuss these hidden assumptions and some of their disastrous effects


To take just one example: in 2011 and 2012 New York City, under Mayor Bloomberg, had a notorious policing policy of “stop and frisk”. Police could stop and frisk on the street on a whim of suspicion, which is to say on just plain whim. Stop and Search laws and their broader social context of the kind analyzed so powerfully in the British context by Stuart Hall et al in Policing the Crisis (1978) were of no consequence here. In 2011, nearly 700,000 people were stopped and searched on the street. That’s more than one every minute, twenty-four hours a day, every day of the year. (Think about the police labor it takes to effect that; and of course the impact on everyday life, not to mention longer term social prospects and wellbeing.) Over 90 percent of those stopped were black and brown. While the numbers dropped fourfold in 2012 when successfully challenged in court on grounds of racial profiling, a person was still stopped every five minutes or less. A little over 10 percent were arrested as a result of the stoppages, overwhelmingly for marijuana possession. Despite Bloomberg’s populist rationalization of the policy that Blacks and Latinos represented a larger proportion of violent criminals, only 12 arrests were made for weapons possession, very few for possession of violent weapons and only one for carrying an unlicensed firearm. The overwhelming arrests were for drug possession, mostly marijuana. Black and brown men, especially, are more likely to be treated violently by the police — this is Eric Garner territory, after all— subsequently arrested and ultimately imprisoned largely for non-violent drug offenses. (Random “stop and frisk” was ultimately ruled unconstitutional in 2013. Police may still stop and search on the basis of any suspicion.)



Nationwide, African Americans suffer violence at the hands of police across the United States at almost twice the rate of Latinos and nearly four times the rate of whites (4.4, 2.3, and 1.2 percent, respectively). Those recklessly killed by police across American cities have almost invariably been Black. In 2012, one study shows, a black man in the United States was killed by police, security guards, or vigilantes every twenty-eight hours. According to FBI data, between 2007 and 2014, police killed 400 people per annum, a quarter of them Black (more than double their population percentage). Though making up approximately 26 percent of the US population, Blacks and Latinos are made to serve up something like 62 percent of the US prison population.


Nearly one third of black men between the ages of 20 and 29 are currently under some form of criminal justice supervision (prison/jail, parole, probation), and have an approximately 30 percent chance of spending time in prison across their lives. It is revealing that, today, more black men in California reside in prison than attend college, and that the annual cost at $75,000 is greater than tuition at the most expensive elite private colleges such as Stanford. The impacts are cross-generational, with massive multiplier effects: a little more than 4 percent of American children have a parent in prison; for African-American kids, it is over 10 percent. And, according to a just released study, the probability that middle-aged black men (those aged 50 plus) ascend into middle class status is approximately 60 percent lower for those charged with a crime as a young adult.


So much for the depressing numbers.The lure here, which sometimes seems irresistible, would be to focus exclusively on disproportionality. These characterizations begin to blur the lines between social status and the experience of racism . They indicate the ways social position heightens the likelihood of racist experience. Such racial experience, in turn, often reinforces social structures, keeping them in place. Redirect the racially driven processes to whom stopping and frisking apply, the racial targets of law enforcement processing, of lack of adequate legal representation, lack of inherited wealth, privilege, and influence, and what you would get is a radically disproportionate number of white men going to prison. After all, the data shows that white folks consume outlawed drugs at somewhat greater rates than black and brown folks. This may indeed have to do with their socially being better off, in terms of material wealth and privilege and so disposable income in all racially ordered states. But in turn it opens up the question of whether their being better off means they are less likely to be criminalized for drug consumption and therefore more likely to partake. So, reproduced social structure and all its effects are as a matter of course crucial here.


I want to focus on a consideration in all of this that, at least in direct terms, has received little attention. It is a key consideration, ultimately, in all matters where race and crime interface: law enforcement disposition and suspicion, interdiction and incarceration, from criminal transgression through response by and in the criminal justice system. Indeed, it shapes even the framing and conduct of racial crime studies and data collection. A focus on racial judgment interweaves the interplay of the structural and the experiential, the expressive and the actionable. When attended to at all, it is invariably through dispositional considerations that impact racial judgment, like bias and stereotyping. And the determination is made after the fact, reading back into the event description bias or stereotyping to account for unequal, unjust, or disproportionate treatment. Perhaps the social psychologist Jennifer Eberhardt comes closest to addressing this, in work that focuses on how unconscious racial coding and categorizing suffuse decision-making and judgment, most notably in law enforcement and jurors’ criminal sentencing. In short, a focus on racial judgment places in question how one is socially persuaded—and one is socially moved to persuade oneself to act in ways debilitating to the lives of those defined as racially other.


Practical judgment or practical reasoning has a long philosophical tradition of analysis. Kant, following the Thomist tradition, conceives of the will as interwoven with considerations of normative principle (“I ought to do X” or “Y is right”) and the relevant empirical conditions facing one. The will offers agency and culpability, or so the argument goes, for it is the medium of choice between competing normative principles and different data inputs or emphases regarding the act circumstances one faces. The will undercuts the rationalization that God (or the Devil for that matter) “made me do it’. From free exercise of the will, or unreasonable failure to exercise it, responsibility for one’s action(s) follows. The good will for Kantians is the will driven by right reasoning in the appropriate circumstances. Madness accordingly involves the loss of reason to greater or lesser degree, and so proportionately the loss of responsibility for actions that might follow.


Before Aquinas and Kant, however, there was Aristotle. Aristotle had a more parsimonious understanding of the exercise of practical reasoning. Practical reasoning, as he puts it, is driven by ratiocinative desire (or desiderative ratiocination): basically, desire plus reasoning is required to effect an end (as action). I desire or want to achieve a goal Z. I reason as to the most effective means to bring about that goal. Notice that what is at stake here is not to effect a judgment about action, as with Kant: The conclusion is not that bringing about Z would be good that then requires the will to get me actually to act to bring about the desired outcome. I act to bring it about. For Aristotle, the additive of the will is irrelevant to practical reasoning. Desire defines for a person the drive to a goal desired, to be pursued and brought about. Reasoning determines the means most optimal in the situation to bring about the desired end. “I want Z.” Characterization of the situation involves description of available resources, obstacles, and challenges to achieve Z. This will include the play of normative social principles contravention of which might come with burdens like punishment. Reasoning also establishes the generalizable moral and social rules applicable to the circumstance at hand. So practical reasoning ending in an act consists of the weighing up desire, the situation description one is facing, the applicable normative principle(s) in play (for example, I ought not to be break the law, I ought to act in a respectful way towards others impacted by my act), and their respective weights for one in the calculus. In saying that there is nothing more to effecting practical action than this, Aristotle is intimating that there is nothing more to volition—to seeing oneself going in this or that direction–than the play of these relations. There is no autonomous black box—the will– the workings of which are different from this play of considerations or otherwise forever obtuse to us.


Here, more broadly than in work like Eberhardt’s, race would enter into the equation as input with respect to each of these three registers: desire, normative principle, description of the act’s social context and the act’s relevant social landscape. For Eberhardt, race is simply a largely unconscious bias, thus impacting largely if not quite completely a person’s desire. Consider that a policeman or policewoman might hold the (discredited) Bloombergian generalization that Blacks are more violent than whites. Their desire is to ensure the safety of the precinct within the parameters the law allows. They walk into a social context where a bunch of white people and one black man are fleeing a department store from which a shooting has been reported. The black man is holding a dark object in his hand that could be a gun. The policeman shouts “freeze”. People keep running amidst the chaos and noise. A shot rings out, the black man sprawls forward, a cell phone sliding across the floor as he hits the ground, dead.


The police officer here is literally seeing through race, and not in any critical sense. Habituated judgment—I want to say policing judgement, and not just general social judgment, though the two are deeply interactive as the Bloombergian generalization evidences–is racially ordered. So the question is what makes up, what determines this specifically policing judgment?


Policing policy today most everywhere is especially careful to be racially neutral. Where race might be referenced it would be in carefully coded terms, sometime dog-whistles like “dangerous” or “more violent neighborhoods.” A general rule might say something like, “Don’t shoot where there is a heightened probability innocent bystanders might be caught in the shooting or crossfire.” The rule might be qualified as such: “unless in imminent danger from the suspect.” Put this “shooting protocol” in play with the Bloombergian rule. A black suspect then already is seen—that mix of perceived and considered, conceived–to constitute heightened danger to those around him, but a step from imminent danger. The policeman, in the scenario I’ve sketched, blood rushing, anxiety heightening, temples throbbing–sees in a matter of seconds a surging crowd following a store shooting, a black man among them, something in hand looking to him like a gun. Harvard experiments have shown that for white viewers black subjects with an undefined object in hand are far more likely to be assumed to be bearing a gun than white subjects. So, flashing across the officer’s mind: heightened possibility of imminent danger. Shoot. Philando Castille slumps dead over the steering wheel of his car, his girlfriend iPhone filming in horror, the image seared into her four-year-old daughter’s memory for life, sitting silently in the back seat.


Note that it is not a will that is deciding reflectively between the two options, to shoot or not. The policeman in such circumstances doesn’t have the luxury of a philosopher. “Let me sit back and reflect on it”—to which might be added, “so my free will can make a choice for which I would then be responsible”— is not an option. It is the weight of circumstances, the play of elements, their likelihood, their imminence, in relation to the general principles applicable here and the desire to save lives, even do the right thing. But there is another element in play here too, not yet mentioned, that pulls the practical outcome away from any notion of a free will choosing to the driving play of the elements and their probabilistic likelihood.


Police training sets general normative principles for acting in the field, for interacting with other police and the public, as well as the skills for carrying out the job. These include motor, communicative, interactive, physical, mental and social skills. Police training, especially in the US, stresses self-preservation most notably in the face of imminent danger. You are no longer of policing value if you are no longer alive, save perhaps as an example of what not to do, or of heroism. But it also stresses shooting to kill. The target, when police perceive themselves to be in danger, is the head. And they mostly or most readily perceive themselves in imminent danger when the suspect is a black man. A person is fleeing the police; shots are fired not at the legs but at the back of the head, the upper torso. There have been video game simulation studies demonstrating that police more quickly shoot black suspects than white suspects. There are plenty of data now also evidencing that policemen in the US literally see black men as larger than they actually are; black kids as older than they are, allowed no innocence; blacks more likely criminal than whites; and “characteristically” black faces more so than less characteristically (or stereotypically) black faces (on the latter, see Eberhardt). So, the training disposes not towards incapacitating the person perceived as imminent threat long enough to subdue and apprehend him. Rather, “Kill him, he’s an imminent danger.” We have gone from “Look Mama, a Negro”, in Fanon’s classic account, to “Look, a black man, gun (likely) in hand.” Shoot, to kill. Answer questions later. An exchange between a policeman and a black behavior therapist looking after an autistic boy just shot by policeman in Florida: “Why did you shoot me?” “I don’t know.” Practical reasoning is overcome by racial presumption, which has outcomes at least equal to no reasoning at all.


Police target practice generally operates with abstract, faceless targets, black outlines on white paper. It wouldn’t be an exaggeration to say, however, that there have been—there still are—some explicitly racist police departments known to target practice with identifiably black targets. During George Zimmerman’s trial for killing Trayvon Martin there were policemen practicing with what was generally taken to be Martin’s hooded image as target.


One can generalize from the determination to shoot to more general policing practice and interaction, at least in the US context. The Bloombergian mis-generalization—which in fact long precedes him – witness D’Souza’s The End of Racism in 1995, drawing as it does on The Bell Curve, published a year earlier, still looms large in a considerable deal of police racial disposition and judgment in street interactions. Consider the readiness and swiftness with which interactions devolve into physical beatings, taserings, chokings and the like; in short the ease and speed with which such interactions become unhinged. Again, normative principles, context, training and desire, all to some degree or another racially ordered or at least not counter-racial, lead us to the consideration of a process that cannot be explained by some discrete action of an independent will. The causes of the acts themselves are the outcome of a prior process of racialised judgment that then plays out in the action. He’s resisting arrest or conceivably might be? So instantly punch or chokehold him to ensure compliance and the policemen’s own safety. One punch, two, a kick. He is still flailing? Rain down more punches, tighten the choke hold, taser him repeatedly, kick him to bits. He can’t breathe? Tough shit, he should have thought about that when he started resisting.


What police training produces, not unsurprisingly, are professional habits, an Aristotelian habituation to act pretty much predictably in like circumstances, a Bourdieuan habitus. To act differently would require that we loop the tape back a long way; to produce different ‘normativities’ would require the inculcation of different principles, trainings, and contextual considerations. The point here is to recognise how such desire, fear and instant decision-making as shaped by normative consideration and by their interactive mix would have to be different. Training, albeit not the only factor, would be vital to foster a different cast of habits. This is especially complicated and fraught given the historical sedimentation of racial presupposition, racially deep-rooted suspicion and skepticism, more or less racially settled and cemented dispositions – in short, the prevailing racial habitus.


Police in the US, at least, assume dispositions of authority. Politeness quickly gives way to assertion and command at the slightest hint that their authority is not being deferred to. Failing to exhibit what is deemed sufficient deference to police authority—questioning, arguing with or talking back, slowness to obey a command, ignoring police assertion because one takes oneself to have done nothing wrong, to be unreasonably targeted—can quickly be interpreted as resistance to police, leading invariably to escalated violence. “Resisting police” is the police go-to public rationalization where questions are raised about police violence. Patience is largely not an operative principle in American policing. Protocol and rule invariably trump discretion, or dare I say judgment. Which is to say normative principle overwhelms the play of other factors in practical reasoning, hardening effectively into authoritarian self-assertion. Do as I say, failing which the only follow up is assertion of physical violence to impose police control, mostly for its own sake. Race unquestionably heightens the stakes, more often than not dramatically.


Take one small but telling example: an eleven-year-old black boy was attending basketball practice at the Police Athletic League in Jacksonville Florida over the summer. Police here take themselves to be providing mentoring to kids, “filling playgrounds, not prison.” After one practice, the boy was bouncing his basketball on the court alone, waiting while his mother was down the hallway speaking with someone. A uniformed policeman claims he asked the boy to stop. When he didn’t the white policeman shouted at him, “I know you hear me, boy,” started lurching for him, and the boy, scared, bolted. The policeman grabbed and handcuffed the adolescent, hands behind his back, declaring “Now you’ll see what it feels like to be arrested.” His mother found him outside the building, cuffed and surrounded by four policemen. The arresting officer rationalized his action as a response to his “being disrespected.” Needless to say, this is far from an isolated incident.


Since Trump assumed the Presidency, calls by white people to the police to register concern about the presence of black people—in workplaces, at Starbucks, in study environments, in neighborhood homes, in community swimming pools, on the street—have surged. It’s not that they didn’t exist in the past—witness Skip Gates’s well documented experience getting into his home in Cambridge, Mass in 2009 during the Obama years. But there has been a dramatic increase of late in everyday criminalizing of “living while black.” Police, sometimes embarrassed, explain to the confronted black person that once called they are obliged to check out the object of expressed concern. This invariably involves cross-examination, requests for identification, proof of belonging in the environment—a student ID on a campus, proof of residency in a home, keys to the community pool—and general discomfort on the part of the interviewee. After all, black men are killed by police three times more than white men. As many have commented, this is what it means to live Black in America.


But we could also ask why the police protocol presumes wrongdoing or unbelonging on the part of the black accosted. Why not begin by interrogating the invariably white caller about the prompt for the call and where obvious that the prompt is nothing but racial discomfort at black (or Muslim) presence to issue a warning to the white caller that another idle call of this kind would entail a citation for misuse of police resources. A New York state legislator has introduced a law that would criminalize such calls as a “hate crime” unless the caller has reasonable evidence a crime is in process of being committed. That shifts the burden. And it is easy enough to differentiate a call of unwarranted suspicion from one that is a genuine case of say breaking and entering or other clear wrongdoing. Training for wise judgment would go a long way—not all the way, to be sure—for undercutting these sorts of racially driven suspicions.


The lens of race, seeing ‘through’ race (again non-critically), positions the racially conceived as perpetrator, as suspect, the conduct as crime in the making, resistance to police as guilt. The individual becomes a number, member of a series in a Sartrean sense, stepping-stone to a statistic. Failure to comply to a command simply serves as another iteration in the reinforcement of the Bloombergian rule. But also further instantiation of the counter-official demonstration of racially profiling police violence. A woman police officer in Texas returned after duty to her apartment building, opened the door to the wrong apartment and, seeing a dark figure inside, opened fire. The twenty-six-year-old resident of the apartment, Botham Jean, lay dead (the policewoman has been charged with manslaughter). It’s not that critics would have Blacks police-killed at the rate of white men. Rather, it raises the question as to whether at least in all but extreme cases police really need to kill at all.


Racial judgment as exercised and manifest systemically and systematically — and so thoughtlessly in the Arendtian sense — is thus central to the production of crime and the reproduction of racial criminalization. Beneath or embedded within disproportionality are conditions—structural, psychic, institutional—more or less directly reproductive of the “givens,” the “inevitabilities” of the production of racial crime. This also gets reproduced through the prosecutorial system in ways large and small, implicitly and explicitly, in the courts, throughout the immigration gauntlets, in prisons, in solitary confinement, and in the passage to death row.


These variegated conditions point to multiple registers within racism, and to multiple forms of racism. This very embeddedness of institutional and structural formations of racism is the most challenging issue to address because it is the least obvious and least visible. Yet racism is rooted in the very institutional structures of racial states like the U.S. and Britain. It carries over into new organizational formations. It lies buried at multiple levels in the sedimented practices passed on from earlier historical moments. It is extended in multiples form of contemporary inattention. It continues to reproduce not just inequitable criminological treatment but lifelong structures of experience and social positioning racially ordered and reproduced. The racially marginalized in society are subjected to violence that no one should have to endure. The Lancet, a major medical journal, just published an article evidencing a spiked rate of mental health challenges, especially for black women, in those urban areas where police shooting of black men have occurred. Structural and systemic racisms enable both exploitation of more vulnerable, racially identified populations (e.g., migrant labor regimes; prison labor; but also cumulative fines for misdemeanor violations like traffic infractions to address municipal budget shortfalls) and elimination of populations deemed by a powerful officialdom as racially undesirable. The latter can take various forms, from social removal (where removal can range from expulsion to incarceration) to an exterminationist logic, a policy of killing.


Individual expressive racism plays out in how an individual may characterize or treat publics generally or those over whom they might express some institutional or individual authority. These forms of racism–characterized compellingly by Philomena Essed, as “entitlement racism”, including demeaning attitudes, humiliations, reductions—may take their cue from, while certainly also reinforcing, existing institutional and structural forms. To characterize them as “hate” expressions or even hate crimes is again to treat them as anomalous, to render them as affectively driven, as undue passions that are somehow exceptionally prompted, and so as unusual and extreme. To do so is to de-structuralize and de-systematize them by uncoupling them from the socio-structural conditions and social systems that enable that sense of entitlement to begin with.


Contemporary developments further serve to cover up the less detectable structural underpinnings in the production and reproduction of race-driven policing of crime. Algorithms are being deployed by cities and police departments to connect data revealing high incidence of crime to the geographical areas in which crime is spiking. What is new here is not the technological identification of spikes in crime, but linking those spikes to specific neighborhoods or even street corners in the city. Police departments accordingly assign more police and patrols to those areas—the west side of Chicago, say, where the number of murders has spiked, of late. This heightened police presence in turn increases crime identification and arrests. This further reifies the judgment that the neighborhood is crime infested. Recall “stop and frisk.” Data accordingly reinforces crime (re)production, rather than stemming it. This is precisely because the structural conditions that give rise to crime remain invisible and by extension untouchable. Many of those singing the virtues of the digital revolution laud algorithms—the operating code that runs the technology we so readily use today—as racially or gender neutral, as involving no intentional bias to favor or disfavor populations groups. Intentionality notwithstanding, however, algorithmic application often (even if sometimes inadvertently) reproduces disfavoring racial effects. In the case of policing neighborhoods, algorithmic neutrality counter-intuitively spawns and cements crime.


The one-dimensionality of prevailing studies of the interaction of race and crime today ordinarily registers racism as institutionally discrete, as the anomalous expression of wayward individuals, and as inconsistent with stated institutional values. Data driven policing completely fails to get at—even is in active denial of—the complex multi-dimensionalities of racisms, of pretty much all racist articulations. The contrast, and so the “measure”, is what a socially dignified and respected life amounts to. What are the institutional arrangements and structures that would enable lives both dignified and respected? What would such arrangements and structures require to operate in a non-racial manner, and indeed to be explicitly based upon breaking with a racist logic entirely? In short, what would be the social and institutional conditions that we might envisage not only to shrug off and distance themselves from racial configurations and their conditions of social possibility and impossibility, but actively designed to be resistant to the conditions of such structural factors and enactments which I have sketched above? How might we begin to think of the racial field of crime, of racially targeted policing, of sub-human carceral conditions in these contexts as violations of dignity and respect, and of the social conditions of their sustaining possibility?


The social formation of crime accordingly offers the register for assessing the parameters and profile of authority in any society. The fragility of institutional commitments to sustaining lives of dignity, respect, co-constituting autonomy, and equitable social arrangement has been evidenced of late by the all too ready devolution of institutional authority into authoritarianism. The criminal justice system perhaps better than any other social institution most clearly exemplifies this social unraveling into authoritarian insistence and assertion. What are the social conditions, we must ask, prompting such hardening of attitudes and practices in different times and places, or hardening in some dimensions (e.g. migrant detention) while softening in others (criminal decarceration, for instance, in the Netherlands)? How to define the key terms? What are the racial articulations of their (re)produce-ability? And what are the implications for addressing and redressing the social impacts of current policing practice, of the criminal justice system, of the shape of the social more generally? What, for example, is prompting the spiraling impatience of policing in the US and throughout the criminal justice system more generally? What underpins the trigger happiness, the insistence that orders be followed immediately? What are the racial disparities in both response-time and aggression-force indices? And what do these disparities indicate about the expression of disproportionate racial value?


What, then, are the various meanings and practical commitments of abolition as counter or resistance to these racial logics? Abolition as a general social counter-principle articulates the horizon of possibilities for countering institutional racisms and their driving expressive formulations, for undercutting and refusing authoritarianisms dominant and petty. Ultimately addressing such questions requires opening up a forum for addressing and developing effective spaces for articulating the institutional, social conditions for enabling and sustaining and where necessary reconstituting dignified modes of redressing wrongdoing.


Martin Luther King insisted that there are three major interactive elements reinforcing social injustice: racism, social inequality, and militarism. A commitment to abolition as horizon of possibility, in short, offers a platform for considering critical judgments about these interlocking conditions of racisms, inequalities and militarizations of social life. Such a platform offers also the possibility of effecting dignifying and respect-inducing judgments about punishments and their social conditions of production, as Angela Davis has made evident. Consider, as one example of principled abolitionism, Black Lives Matters.


What, then, are the most compelling methodologies for addressing the range of questions I have raised here? What would be the necessary quantitative and qualitative, data, interview and ethnographic studies, the protocols and pragmatic pointers for the most far-reaching analysis? What are the implications for the algorithmic and data driven modes that, in turn, shape ethno-racially reproductive policing, bail, bond, and parole denials? How best to undo the racial hold over hidden persuasion? These are among the consuming questions of race, and especially of race and crime production, for our time.


This is a lightly edited version of a keynote address to a symposium, entitled, ‘Race Matters: A New Dialogue Between Criminology and Sociology’ held at the London School of Economics, 6 September 2018. Professor David Theo Goldberg is the director of the University of California’s Humanities Research Institute and the Executive Director of the Digital Media and Learning Research Hub.