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Bennett Capers

Bennett Capers, Policing, Race, and Place, 44 Harvard Civil Rights-Civil Liberties Law Review 43-77, 437-47, 77-78 (Winter 2009) (217 footnotes omitted).

 

Abstract

Most Americans live in neighborhoods and communities segregated along racial lines, and take this segregation for granted. To the extent they view their communities as racially segregated at all, they assume that this segregation is largely the result of individual choice, socio-economic status, or perhaps a remnant of de jure segregation. The ambition of this Article is to draw attention to a component of segregation that has been largely ignored: the significant role that criminal law and procedure have played, and continue to play, in maintaining racialized spaces.

This is not a matter of little consequence: spatial separateness allows social relationships to be structured along racial lines, which in turn has the effect of perpetuating and reinforcing social and economic inequality. The thesis of this Article is straightforward: If we hope to achieve our goal of a more perfect union where true racial equality exists, it is critical that we examine and understand the link between policing, race, and place.

. . .

Forty years after the passage of the Fair Housing Act, a particular contradiction stands out. America has never been more racially diverse or racially egalitarian. And yet, America remains very much racially segregated. Most Americans continue to live in neighborhoods and communities segregated along race lines. Even more troubling, this residential segregation is often relegated to "a minor footnote" in the ongoing debate about equality and race. We assume that residential segregation along race lines is largely the result of individual preference, socio-economic status, or perhaps a remnant of de jure segregation. We assume that the government's role in maintaining and perpetuating segregation is a thing of the past. We assume that there is nothing more we should do. And we assume that, aside from prohibiting discrimination in housing--which we have already done-- there is nothing we can do. If there were a box, we could go ahead and mark it "Done."

As a starting point, this Article makes the argument for moving residential segregation from the footnotes to the body of the text, and treating it as a subject of some urgency that should concern us all. Spatial separateness allows social relationships to be structured along racial lines, which in turn has the effect of perpetuating and reinforcing social and economic inequality. The ambition of this Article is to do more than point out the harm of continued residential segregation. It is to draw attention to a component of segregation that has been largely ignored: the significant role that criminal law and procedure have played, and continue to play, in maintaining racialized spaces. My thesis is straightforward: If we hope to achieve our goal of a more perfect union where true racial equality exists, it is critical that we examine and understand the link between policing, race, and place.

Part II of this Article examines the collateral consequences of residential segregation. Many of these consequences are already well-known. Entrenched segregation tends to deny racial minorities equal access to jobs, government resources, amenities, and as we were recently reminded in the Seattle and Louisville cases, quality schools. Segregation also tends to disproportionately burden racial minorities with society's detritus: power plants and hazardous waste facilities, group homes for the mentally disabled, halfway houses, shelters for the homeless, and public housing projects. Many of these consequences may be obvious; however, racial segregation is also harmful in other, less visible ways.

Part II focuses on these less visible harms. Building upon recent scholarship in social capital theory, Part II.A begins with the observation that residential segregation structures social relationships--i.e., with whom we bowl or golf, with whom we watch the Superbowl or American Idol, with whom we discuss politics and shop, and so on--and argues that residential segregation harms individuals by reducing their social capital. Part II.B builds upon this analysis and argues that another consequence of residential segregation is that it contributes to race-making by producing and reproducing racial difference and white privilege, drawing upon Cheryl Harris's concept of "whiteness as property." This section expands on Harris's work, arguing whiteness because of property. Finally, Part II.C functions as a gateway for this Article's discussion of crime and policing and argues that segregation contributes to the entrenchment of deleterious norms, including deleterious norms about crime and criminality.

Having examined some of the collateral consequences of residential segregation, Part III of this Article turns to criminal procedure, criminal law, and policing. In particular, I argue that our current methods of policing contribute to residential segregation. All aspects of policing contribute to residential segregation: policing our national borders, the continued policing, well after Loving v. Virginia, of interracial intimacy, and especially the way we police our neighborhoods. Part III discusses several types of policing that contribute to residential segregation, including Terry stops. In critical race theory, it is fashionable to follow Mari Matsuda's admonishment to "look to the bottom" to those most affected by discrimination as a starting place for effecting change. This Article takes a different approach by looking to the middle. My focus is not on the outliers, minority law-breakers; rather, my focus is on the vast middle: minority law-abiders, especially middle-class minorities. After all, it is the law-abiding, middle-class minority who is best positioned to not only cross, but also tear down, racial barriers. Collectively, they are also best positioned to disrupt what social cognition researchers have identified as the implicit biases about race we all hold, notwithstanding our protestations to the contrary.

Consider the law enforcement practice of taking into consideration racial incongruity in assessing whether reasonable suspicion exists to justify a Terry stop. As a result of this practice, law-abiding minorities entering predominantly white neighborhoods are frequently stopped and questioned as to the reason for their presence in the neighborhood. These stops effectively discourage integration. Using racial incongruity as a factor for determining reasonable suspicion reinforces the notion that certain neighborhoods are white, certain neighborhoods are black (or brown or yellow), and never the twain shall meet. Furthermore, stopping law-abiding citizens suggests a "racial tax" that comes with crossing geographic borders and demonstrates the existence of state action in the service of segregation. Another way of thinking about this is to consider the number of minority professors who have been stopped by the police based on their presence in predominantly white neighborhoods. When racial incongruity functions as a factor for stopping Cornel West, William Julius Wilson, and Devon Carbado, to name just a few, it not only points to a flaw in how we police but also sends the expressive message from a representative of the state about who belongs and who does not.

Changing the way we police, the project I outline in Part IV, will not alone result in the eradication of residential segregation. But new policing methods can play a vital role in making all neighborhoods appear welcoming to racial others. As it stands now, too many neighborhoods are perceived as spaces where racial others are by default cast as aliens, intruders, and suspects. At a minimum, changing the way we police can eliminate the perceived racial borders that our police now patrol. After all, these perceived racial borders function as very real barriers to integration. And as this Article will hopefully make clear, eradicating such barriers is key to equal access to opportunity and, ultimately, to our democratic project itself.

. . .

When I began this Article, I was reminded of two stories. One was about Randall Kennedy. At a symposium I attended, Kennedy described the preventative measure he took when he moved to a predominantly white neighborhood. To preempt any suspicion from passing police, to avoid having a gun pointed at him or being told to freeze, he drove to the local precinct, introduced himself as a new resident, and inquired about volunteering his services, perhaps with a neighborhood watch organization. The other story dates back to when I was a federal prosecutor, and involves one of the questions put to a black applicant. The question was this: If an officer saw a white male approach a young black male in Union Square Park, would that constitute reasonable suspicion of a drug crime? The other interviewers in the room apparently shifted in their seats, in part because they clearly thought the answer was no while the person who asked the question clearly thought the answer was yes. But mostly, it was because his question suggested a type of litmus test to the black applicant, to see if the applicant could be "objective," "unbiased," and recognize black criminality. I found the question troubling for yet another reason. At the time, I lived two blocks from Union Square Park in a neighborhood that is predominantly white. I thought the interviewer's question could be describing me. I am black and my partner is white. If we were in the park, two blocks from where we lived, would we be deemed suspicious?

There are other stories that have informed my thinking about the link between policing, place, and race. Stories that inform the streets on which I walk in the evening, in which neighborhoods my partner and I choose to live. The consequences of how we police are real even to those of us who would never dream of committing a crime, even to those of us who are former prosecutors.

Regina Austin has written nostalgically about a time when the black community stood more clearly apart from the white community, both geographically and in terms of outlook, a time when "blacks were clearly distinguishable from whites and concern about the welfare of the poor was more natural than our hairdos," when the black community was "Home." But I think for many of us dedicated to "mak[ing] America what America must become"-- fair, egalitarian, responsive to needs of all of its citizens, and truly democratic in all respects, including its policing--our vision of home is different. Home is neither black, nor white, nor any other color. As Toni Morrison put eloquently:

 

I have never lived, nor has any of us, in a world in which race did not matter. Such a world, one free of racial hierarchy, is usually imagined or described as dreamscape--Edenesque, utopian, so remote are the possibilities of its achievement. From Martin Luther King's hopeful language, to Doris Lessing's four-gated city, to Jean Toomer's "American," the race-free world has been posited as ideal, millennial, a condition possible only if accompanied by the Messiah or situated in a protective preserve--a wilderness park.

But . . . I prefer to think of a-world-in-which-race-does-not-matter as something other than a theme park, or a failed and always-failing dream, or as the father's house of many rooms. I am thinking of it as home.

That is my vision of home, and country. The task that lies ahead is mapping a route there. This Article, hopefully, makes a start.

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