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Criminal Procedure

Keeping Track: Surveillance, Control and the Expansion of the Carceral State

The full text of this Book Review may be found by clicking on the PDF link below.

After decades as a divisive political touchstone, American criminal justice is now characterized by widespread, bipartisan agreement that the system is “broken” in significant ways. The Brennan Center recently published a report in which many of the 2016 presidential candidates outlined their reform ideas on crime, policing, and incarceration. In contrast to previous election cycles, Democratic and Republican candidates have voiced support for many of the same criminal justice reforms. Meanwhile, conservative reform advocates such as those who launched Right on Crime have been joined by bipartisan alliances pushing for change, most notably the Coalition for Public Safety, which unites the Koch brothers and the ACLU in an unlikely political collaboration. As the Huffington Post opined: “[T]here is one issue that may have enough cross-party appeal to break through the logjams. That issue is criminal justice reform.”

Variously motivated by arguments about morality, racial injustice, economic inefficiency, or the squandering of human capital, the agreement about the need for criminal justice reform has coalesced largely around two substantive issues. First, highly publicized police killings of civilians, such as Michael Brown in Ferguson, Missouri, and Eric Garner in Staten Island, New York, have raised awareness about when and how police are permitted to use deadly force in the line of duty. Second, the United States has the highest incarceration rate of any industrialized nation, holding close to a quarter of the world’s prisoners, and there is a growing consensus that we imprison a large number of people who, from a public safety perspective, don’t need to be there.

But while overincarceration and police brutality are serious problems themselves, they bespeak flaws that lie even deeper within the system, suggesting a criminal justice regime gone seriously awry. A meaningful prescription for reform must include solutions for mass incarceration and police brutality, but must also look beyond them to address the everyday interactions and social processes that underpin the problems virtually everyone now agrees are troubling.

Before delving into our argument about social processes, it is worth taking a moment to discuss the role of racial bias and other forms of social inequality in the criminal justice system. In summer 2015, President Barack Obama gave a speech to the NAACP in which he called American criminal justice “broken,” arguing that “[w]e can’t close our eyes anymore” to the system’s ails, and citing the disproportionate numbers of minority men in prison and videos of police brutality as evidence of bias built into the system. Indeed, the brunt of overincarceration and police brutality is borne by poor people and racial minorities, most significantly black men. Statistics show dramatic racial disparities: blacks comprise 13% of the U.S. population, use and sell drugs at similar rates to people of other races, yet account for 30% of people arrested for drug law violations and nearly 40% of people in state or federal prison for drug law violations. Additionally, as Professor Marie Gottschalk points out, certain underlying economic and social factors sustain similarly punitive policies “for certain whites, Latinos, immigrants, and members of other demographic groups.” She notes that “the United States would still have an incarceration crisis even if African Americans were sent to prison and jail at ‘only’ the rate at which whites in the United States are currently locked up.” In fact, even if people of all races were represented proportionally at every level of the system, we would still have some big problems on our hands. Incarceration rates are increasing faster for women than for men, and the United States now “incarcerates almost one-third of the 625,000 women and girls confined to jails and prisons worldwide.” People in the lowest income brackets, and with the least education, are also vastly overrepresented. Class bias not only compounds the effects of race, but also exerts effects of its own. While about 23% of non-incarcerated men between the ages of twenty-seven and forty-two earn less than $18,000 annually, nearly 60% of incarcerated men between the ages of twenty-seven and forty-two earned less than $18,000 annually prior to their incarceration — an economic trend that carries across racial groups. While racial bias in the criminal justice system is extremely pronounced, and has deservedly been (and should remain) at the forefront of policy conversations, it is also important to realize the complexity of the inequalities, including class-based in-equalities, that have long been welded into the girders of our system.

When we look at the processes that comprise the day-to-day functioning of the criminal justice system, it is important to hold two questions in our minds: What are the underlying social mechanisms, systems of control, and interpersonal interactions that constitute American criminal justice? And how do criminal justice processes create, reflect, perpetuate, and amplify bias? The questions are closely related, but each is important in its own right. Note, too, that neither question can be answered solely, or even primarily, by statistical data. While numbers are useful in helping us realize that we have particular problems, we need to delve beneath them in figuring out how we got here and what we can do about it.

This Review argues that an important root cause of our criminal justice ails can be found in the social processes that comprise the system’s daily activities and forms of control over individual Americans — processes largely taken for granted. To explore the ground-level interpersonal interactions that underpin the criminal justice system, we engage three recent books: Pulled Over: How Police Stops Define Race and Citizenship by Professors Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel; On the Run: Fugitive Life in an American City by Professor Alice Goffman; and The Eternal Criminal Record by Professor James Jacobs. Substantively and methodologically, the books might first seem an odd trio. But together, they reveal the importance of a key phenomenon: “surveillance” in the word’s broadest sense — keeping track of people’s movements, histories, relationships, homes, and activities.

In the criminological literature, the term “correctional control” usually refers to Americans under direct, formal supervision: incarceration, parole, or probation. But many more millions of Americans are under informal criminal justice control. These Americans include people who have been incarcerated, charged, or arrested in the past, those who are stopped or searched, those about whom police have collected information (even if they have no criminal records), witnesses to crimes, and people questioned by police in connection with loved ones’ involvement in the system. When we broaden the scope of criminal justice control to take these additional groups into account, the effect of the system’s everyday operations becomes more far-reaching. A complete understanding of the system requires an examination of these many species of interaction between citizens and law enforcement officials. We use the terms “control,” “keeping track,” and “surveillance” in this Review interchangeably, to signify the manifold ways in which the criminal justice system shapes people’s everyday lives.

We argue that in the forms these books catalog, the constant surveilling presence of the criminal justice system has several corrosive consequences, including fostering mistrust of the police, amplifying existing inequalities, and most significantly for our purposes, creating a kind of “liminal,” “second-class,” or “peripheral” citizenship from which it is difficult to escape. In important ways, the modern criminal justice apparatus destabilizes lives, particularly those lived in poor and minority communities. Instead of helping people gain stability, the system actually frustrates people’s chances of getting jobs, keeping their housing, and staying out of trouble. It makes criminal justice something to overcome — something people may succeed in spite of, not with the help and protection of. How do we understand what is going on, and how can we use this new knowledge to take advantage of this moment for policy change?

Pulled Over describes a world in which police and other criminal justice officials are “trackers” rather than investigators, and in which particular people and places are the primary foci of investigation. The result is a system that excels at discovering “low-hanging fruit,” and for which the continued discovery of this fruit not only comes to “justify” police-citizen contact, but also shapes the identities of citizens subject to it. On the Run exemplifies qualitative work’s ability to reach beyond the numbers and expand our understanding of on-the-ground social processes. Drawing on several years of ethnographic research, Goffman documents how “the moral world that people weave around the courts, the police, and the threat of prison involves suspicion, betrayal, and disappointment” (p. 139). She explains how being labeled “dirty” — wanted by, or under the control of, the criminal justice system — shapes a person’s life and bars access to key institutions. Lastly, The Eternal Criminal Record provides the first comprehensive examination of the production, proliferation, and use of criminal records in the United States. The buildup of the prison system, coupled with technological advances permitting widespread and open access to criminal records, renders it nearly impossible for some individuals to overcome their pasts and rejoin society.

We discuss each book in turn, underscoring how various forms of surveillance facilitate the production and maintenance of a second-class citizenry that exists in a liminal, even pseudo-carceral, state. In a final section, we explain how these authors’ illumination of criminal justice processes can help us think about legal and policy reform.

 


* Ph.D., J.D., Assistant Professor of Sociology, University of Massachusetts, Am-herst, beginning fall 2016; Postdoctoral Fellow, Bill Lane Center for the American West, Stanford University.

** Ph.D., Adelbert H. Sweet Professor of Law, Stanford Law School, and Co-Director, Stanford Criminal Justice Center. Both authors are deeply grateful to Robert Weisberg for his valuable comments on this Review and his insights on framing the issues, as well as to Sarah Brayne for her useful feedback.