I’ve been thinking a lot this week about this article, I Got Myself Arrested So I Could Look Inside the Justice System. Specifically, I’ve been thinking about this passage:
But in between the important cases, I found myself spending most of my time prosecuting people of color for things we white kids did with impunity growing up in the suburbs. As our office handed down arrest records and probation terms for riding dirt bikes in the street, cutting through a neighbor’s yard, hosting loud parties, fighting, or smoking weed – shenanigans that had rarely earned my own classmates anything more than raised eyebrows and scoldings – I often wondered if there was a side of the justice system that we never saw in the suburbs.
I know this isn’t really news to anybody, or groundbreaking legal philosophy or anything, but it’s really important to spend some time sitting with the question: what does it mean for a society to have laws of which everyone, or almost everyone, is guilty, and which are prosecuted selectively?
Cory Doctorow talks about this in one of his talks, Authors@Google: Cory Doctorow, describing black market laws in the Soviet Union — since the legal markets sometimes sold nothing but forks, to survive you needed to buy food on the black market. Therefore, everyone was guilty of using black markets. Therefore, if anyone with the authority to arrest anyone wanted to arrest anyone at all, for any reason, they could — and the transgression doesn’t have to be illegal, because they can just charge them for using black markets.
He compared that to piracy laws, that have allowed the entertainment industry to target disruptive programmers and musicians — whose behavior was totally legal — for illegal downloading, which everybody, or almost everybody, is guilty of.
In the video Don’t Talk to Police, (which I recommend,) Officer George Bruch of the Virginia Beach Police Department tells a classroom “I can follow a car for however long I needed to and eventually they’re going to do something illegal.”
Almost nobody doesn’t speed. People drive recklessly. People forget their seatbelts. People forget to signal, people tailgate, and so on. Nobody drives legally — which is how tongue-in-cheek offences like “Driving while black” emerge. Cops can pull over whoever they want, and, it turns out, they mainly want to pull over people of color.
White people, myself included, routinely rely on the common sense of authorities that, while an act might be technically illegal, enacting the proscribed punishment would be absurd. We grow up assuming that everybody can rely on that common sense — that the system as it’s written has its problems, but they’re resolved by the reasonableness of the humans with good intentions that are responsible for enforcing it.
People of Color, LGBTQIAP+ people, and other groups of people who are Othered by the mainstream of society don’t have that protection to the same degree as mainstream, cishet white people.
And, as we’re seeing in Ferguson, Mo. at the moment, it works in the other direction, too. When a white cop shoots an unarmed black teenager while he’s running away with his hands up, then keeps shooting after he’s on the ground and dead, then prevents the family from identifying the body and leaves him in the street for hours, it suddenly becomes common sense to a lot of Americans that, since being a cop is scary, it’s not really reasonable to go through the procedure of taking away that cop’s gun and investigating him. That ambiguity about which laws are really fair to apply manifests in defense of the white cop who used excessive force and murdered a black teenager.
This is a big part of what Thoughtcrime was about in 1984. It wasn’t just the criminilization of beliefs and expressions of belief — it was the existence of a crime of which everyone was guilty, so that in the eyes of the law, no one can reasonably defend themselves. That way, the police can do whatever they want. No one can possibly feel safe to stand up against them; although, as long as you’re not planning on it, it’s pretty easy to feel like you aren’t guilty — because no cop in their right mind would arrest you.