Wednesday, November 22, 2017

I. Bennett Capers

I. Bennett Capers, , 95 North Carolina Law Review 1241 (May, 2017) (316 Footnotes Omitted) (Full Article)

IbennetcapersI am a black man. I say this up front because, like Patricia Williams, I am convinced that subject position is everything in my analysis of the law. I say this up front, too, because when it comes to policing, my blackness means that I am a disturbing statistic. After all, as recently as 2013, one in three black men could expect to go to prison during his lifetime. A prosecutor is more likely to seek higher charges against me, and a jury is more likely to convict me than a white defendant based on similar evidence. According to the United States Sentencing Commission, if I am sent to prison, I will likely receive a sentence nearly twenty percent longer than a white offender for the same crime. I live in a world in which [y]oung + [b]lack + [m]ale" too often "= [p]robable *1243 [c]ause[,]" and where, as Professor Randall Kennedy has observed, there is a "racial tax[.]" I accordingly carry myself knowing that I will be watched by the police, scrutinized by the police, and that at any point I can be stopped by the police. As much as I might hope that my status as an academic might insulate me from racialized policing, my own experience and the experiences of numerous black professors suggest otherwise. After all, the police do not see an academic. They see only what they want to see, "figments of their imagination[,]" "woven ... out of a thousand details, anecdotes, stories[,]" reducible to this: a black man. So, I am a black man. But not tragically so. In a sense, I am that black male because this is how I have been socially constructed. Change the construction and liberation should be possible. There is a final reason to foreground my blackness, here on this black and white page: I want to make an argument that might seem counterintuitive, that might rile libertarians and progressives, and that might even give pause to a few black folk. What I want to argue is that, if we truly care about making policing egalitarian and fair to everyone, then that might mean more policing, not less. More to the point, it will mean redistributing privacy.

*1244 Before elaborating, I should say that this Essay is only indirectly about police violence, the issue most associated with the Black Lives Matter movement and which is now part of the national Zeitgeist, though of course that issue is an important one. In 2015 alone, police killed over 224 unarmed men and women, almost half of them black like me. Video images, captured on cellphones and dashboard cameras, have become the nightly news in my brain, playing in an endless, "spirit-murder [ing]" loop. Still, as someone who has thought and written about policing for a decade now, I know that police violence is not the disease, but rather a symptom of the far larger problem of racialized policing more generally. Every police shooting, after all, begins with a look, a suspicion, or an encounter. We can do little to address racialized police violence if we do nothing to address the far broader issue of racialized looks and encounters.

This Essay is accordingly about police looks and police encounters. It is also about technology and how harnessing technology can help deracialize policing. To be sure, the technology this Essay proposes comes at a cost. In exchange for a reduction of hard surveillance of people of color, it will require an increase in soft surveillance of *1245 everyone. In short, it will require a redistribution of privacy. This might seem too much of a sacrifice for some. It is certainly unlikely to sit well with those who are unwilling to adopt, even temporarily, a Rawlsian "veil of ignorance" and imagine what type of policing would be fair if they themselves were black or brown. Absent some "interest convergence," white Americans who currently enjoy a surfeit of privacy might balk at ceding some privacy to those who are black like me. But hear me out. I do think I can make a persuasive and utilitarian argument, even to the naysayers.

I begin, in Part I, by limning some of the problems with policing, with a particular focus on racial profiling. But lest anyone think I am unfairly singling out the police, I make clear that some courts have been anything but innocent bystanders when it comes to racialized policing. The Supreme Court, time and time again, has in effect aided and abetted *1246 racialized policing. Far from furthering a goal of equality before the law, the Supreme Court has contributed to that goal's very opposite, in effect invoking a type of policing exceptionalism. This background informs my argument that it is time to look elsewhere to address policing problems.

That elsewhere, as Part II makes clear, is technology. In short, there are ways to harness technology to reduce racialized policing. Such "techno-policing,"

Part III acknowledges, will come as a cost. It will involve widespread soft surveillance, for a start. And it will mean the redistribution of privacy: many will have to cede some of the privacy that they currently enjoy. Part III accordingly makes the argument that this redistribution is a net good that ultimately will redound to everyone's benefit. More than that, the cost could be necessary if we care about "mak[ing] America what America must become" egalitarian, responsive to the needs of all of its citizens, and truly democratic in all respects, including its policing[.]"

* * *

I am a black man. For me, the personal is the political. It is inseparable from how I think about the Fourth Amendment, how I think about policing, and how I think about the way we live now. That is why I have tried to make an argument for more technology in policing, even if it means, or perhaps I should say especially if it means, the redistribution of privacy. The costs, especially to those who already enjoy an abundance of privacy, might seem great. But even greater should be possibility of what we can become. A fairer society. A more just society. A society where, just possibly, all of us, including those of us who are black and brown, can be equal before the law. In short, a society that gets us closer to the dream the Founders could not have imagined but was there all along in the text, waiting to be born. Or to be truly read. But already, I am getting ahead of myself. So for now, in this liminal moment, allow me to return to policing. If the goal is equality in policing, if the goal is efficiency and transparency and crime reduction, this Essay maps a route there.


Stanley A. August Professor of Law, Brooklyn Law School. B.A., Princeton University; J.D., Columbia Law School. Assistant U.S. Attorney, Southern District of New York, 1995-2004.

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