Abstract

Excerpted From: I. India Thusi, The Racialized History of Vice Policing, 69 UCLA Law Review 1576 (September, 2023) (349 Footnotes) (Full Document)

None of the Police Commissioner's men, even with the best will in the world, have any way of understanding the lives led by the people they swagger about in twos and threes controlling. Their very presence is an insult, and it would be, even if they spent their entire day feeding gumdrops to children. They represent the force of the white world, and that world's real intentions are, simply, for that world's criminal profit and ease, to keep the [B]lack man corralled up here, in his place. The badge, the gun in the holster, and the swinging club make vivid what will happen should his rebellion become overt. Rare, indeed, is the Harlem citizen, from the most circumspect church member to the most shiftless adolescent, who does not have a long tale to tell of police incompetence, injustice, or brutality. I myself have witnessed and endured it more than once. The businessmen and racketeers also have a story. And so do the [sex workers]. - James Baldwin

The abolition of prisons and policing has entered mainstream discourse, and many abolitionists argue we should divest from punitive systems and invest in systems of care and communities. The discourse on abolition, however, is often sidelined by concerns about how to effectively address harm in an abolitionist world. The problem with these critiques is they fail to seriously contend with the principles and premises underlying the abolitionist critique.

In this Article, I provide a basis for an abolitionist approach to the criminal legal system by examining the history of the policing of vice crimes in several American cities. But first, I want to further explain the abolitionist critique. I believe there are at least three organizing principles underlying abolitionist thought that liberals, and others, have failed to sufficiently take seriously, which I plan to explain more fully in a future piece. The first principle is legacy. This principle looks to the history and legacy of institutions in examining their continued value in modern society. The second principle is the futility principle, which rejects incremental reforms that maintain the logic and structures of social injustice. Philosopher Andre Gorz's conception of nonreformist reforms reflects an embrace of the futility principle. In the midst of debates in the 1960s about whether revolutionary or reformist measures were necessary to achieve a truly egalitarian society, Gorz argued that adopting nonreformist reforms that reject the logic of the current system, but reduce its harm, is an effective strategy for building a more just society. Gorz rejected reformist reform “which subordinates its objectives to the criteria of rationality and practicability of a given system” and which may expand the existing system. Prominent abolitionist thinkers and groups, such as Critical Resistance, have embraced Gorz's conception of nonreformist reforms. This strategy implicitly recognizes the futility of reforming the existing system and encourages organizers to minimize the harms of unjust systems while rejecting the logic of such systems. The futility principle may be the most important for abolitionist thinking in that it requires abandonment of futile attempts to resuscitate morally bankrupt institutions. The principles of futility and legacy are closely linked because the legacy and history of an institution are instructive in understanding the futility in trying to reform that institution.

The final principle is possibility. This principle focuses on looking at what is possible in society and is not limited by current understandings and structures. This principle encourages imagination and looking beyond the current world to construct a new ideal. Possibility pushes us to look beyond the status quo to actualize a reality where everyone flourishes. In her seminal piece on abolition, Professor Allegra McCloud has described this aspect of abolition:

[A]bolition may be understood instead as a gradual project of decarceration, in which radically different legal and institutional regulatory forms supplant criminal law enforcement. These institutional alternatives include meaningful justice reinvestment to strengthen the social arm of the state and improve human welfare; decriminalizing less serious infractions; improved design of spaces and products to reduce opportunities for offending; urban redevelopment and “greening” projects; proliferating restorative forms of redress; and creating both safe harbors for individuals at risk of or fleeing violence and alternative livelihoods for persons otherwise subject to criminal law enforcement.

But the possibility principle is not the focus of this Article. This Article is primarily concerned with legacy and futility and will use vice policy to illustrate why legacy and futility make fully embracing alternative possibilities a mandate, rather than an aspirational option. This piece applies the three principles I have identified to analyze the history of vice policing in the United States. Vice crimes are often described as victimless crimes that, nevertheless, invite criminal intervention because of the nature of the conduct involved. Historically, these crimes have included sex work, gambling (or the numbers game), narcotics consumption, sodomy, and interracial relationships. Vice crimes fall into the category of crimes that are malum prohibitum, which are criminalized because they are supposedly affront to community morals. The history of the racialized policing of vice reveals a legacy of policing to maintain racial and residential segregation. The policing of vice was a tool for reinforcing stereotypes about Black people as being inherently predisposed to criminality. Policing reinforced racial boundaries and maintain the superior position of elites within a community. This history shows policing is not solely or even primarily concerned with maintaining community safety for people in the policed community.

The racialized history of the policing of vice provides a concrete example for applying the legacy and futility principles, and understanding why abolition should be considered as a serious option in addressing the harms of policing and the criminal legal system. Part I provides the abolitionist framework adopted in this Article to evaluate the policing of vice. Part III examines the history of policing of vice in three United States in three moments of time. Part II of this Article provides that story of famous boxer, Jack Johnson, which is an illustration of the racialized nature of vice policing in the United States. Part IV considers how the legacy of the racialized policing of vice in this country provides evidence of the futility of police reform. It contextualizes the history and uncovers the continuities remaining in contemporary forms of policing. The policing of vice in the United States has primarily concerned with segregation, containment, and surveillance. The police in several cities deliberately pushed activities out of white communities into Black communities to protect white property interests and maintain existing residential segregation. Police segregated vice out of white areas into less desirable communities. After segregating vice into Black communities, police contained vice and ensured that there was no spillover across the borders of racial segregation. They were not concerned with eradicating vice in Black areas. Rather, they were concerned with ensuring that any vice that occurred did not seep into other areas. Finally, vice activities also provided police with a justification for surveilling Black communities. The very presence of vice reinforced racist stereotypes about Black people and provided a justification for police to adopt an aggressive posture when policing these communities. These objectives of segregation, containment, and surveillance reflect police forces more concerned with maintaining racial hierarchies than eliminating harm, at least when the affected communities were Black ones. Many police reformers might ignore this legacy when evaluating contemporary policing or fail to see its continued relevance. However, for the abolitionist, this legacy is instructive when evaluating whether this form of policing is impervious to reform.

Part IV infra illustrates the potential for centering legacy when examining contemporary policing. It also provides guidance on whether it is reasonable to expect reformist reforms to meaningfully change the nature of policing in the United States. If policing vice was primarily concerned with maintaining racial subordination, there should be substantial evidence to support that it is capable of deviating from this norm. Without this evidence, the futility principle would suggest that abolition of this form of policing is necessary if we are committed to eliminating institutions reproducing white supremacy. If the core objective in policing vice crimes has been in creating and maintaining racial segregation while providing a justification for surveillance rather than preventing harms to the policed communities, then perhaps policing does not pay its way. Part III embraces the legacy and futility principles by providing a brief historical analysis of the policing of vice and its racialized nature in three U.S. cities--New York, Chicago, and Detroit. This history reveals the racialized nature of vice policing and is instructive in understanding whether this form of policing should continue.

[. . .]

This snapshot into the history of vice policing reveals the racially discriminatory effect of policing vice. Vice policing was driven by a strategy of (1) segregation, (2) containment, and (3) surveillance. Police deliberately pushed vice crimes and redlight districts into Black neighborhoods. In many cities in the United States, police pushed vice into racially segregated neighborhoods and contributed to a geography of vice that was racialized and segregated. This segregation protected property interests in white neighborhoods while allowing vice to continue to exist within these cities. As such, the policing of vice was a mechanism for maintaining racial segregation.

After pushing vice into racially segregated communities, police contained it within these communities by regulating public spaces and harassing Black people who were suspected of bringing vice into white communities. They also engaged in surveillance of Black communities that monitored vice activities, allowed them to harass Black patrons, and manage the people in these areas. Vice policing also facilitated and continues to facilitate police corruption with many police officers soliciting bribes in connection to vice crimes.

Despite community demands for police protection, police responded to vice with community harassment and exploitation. The police were accomplices of vice crimes and often appeared to be more concerned with ensuring that it occurred on their terms than actually eradicating it. By embracing a constant and visible presence in Black communities, while simultaneously ignoring calls for police protection, they communicated they were present in these communities to fulfill their agendas and the people within these communities were not the people they were serving. This form of policing reveals the ways policing is focused on the managerial aspects of criminal law administration and not the actual enforcement or prevention of crime or harm.

Abolitionist theorizing invites us to look backward at this legacy of policing in assessing its continued value in society. The legacy of vice policing reveals an institution primarily concerned with racial segregation, containment of vice in Black communities, and the surveillance of Black communities often resulting in police violence. The legacy of vice policing is concerned with maintaining racial hierarchy, protecting white property interests, and containing vice to Black communities.

This legacy of racialized vice policing is instructive in understanding the futility of police reform. Futility instructs us to abandon racist institutions that are impermeable to meaningful transformation. It demands we divest from institutions intended to perpetuate white supremacy. The racialized history of policing vice provides evidence that policing has been concerned with protecting the property interests of white people and maintaining racially segregated communities. This interest might be in alignment with those of elite white property owners, but it certainly suggests people concerned with the experiences of Black people should reassess whether police should be reformed when it is an institution that has engaged in deliberate policies to maintain their subordination.

Police reform presumes policing is intended to protect all communities and when we deal with the few rotten apples in the bunch we will be able to realize a more just police force. By fixing chokeholds, or trainings, we will slowly inch toward a more just policing system. We might even diversify the police force in hopes that would eliminate racially prejudiced policing. This perspective centers the stated goals of policing for certain segments of the population without fully contending with the historical role policing has played and continues to play in racial discrimination and segregation.

Police reform reflects an optimistic view of policing and assesses it in the vacuum of what is happening in the present. The history of policing and its many failed attempts to professionalize, community-ize, human rightsatize suggest policing is serving a function that is at odds with principles of equity. No amount of Black or women police officers will be able to transform police organizations that have a history and a present of racial subordination into police organizations of racial equality. The institution operates as intended when it continues to perpetuate racial subordination. How can reform meaningfully transform this?

The futility principle invites us to abandon practices, policies, and institutions that have a legacy of white supremacy and have been resistant to efforts at reform. Although the history of racialized vice policing may be new to many, including people who focus on policing issues, the failure of police reforms to eradicate biased policing is common knowledge. The history of racialized vice policing illustrates the futility of adopting measures that tinker with policing at its edges. Policing is doing exactly what is and has been intended to do--it has a long legacy of protecting white property interests.

Professor of Law and Charles L. Whistler Faculty Fellow at Indiana University Mauer School of Law and Senior Scientist at the Kinsey Institute for Sex Research.