ae $a” Wark ia le American Hemel: Ufacface_ i Ve Amercen Ton Reliving and Prion sR Penal Deveoviaeg Dorlam, MC: Dobe Uav Press 2Oo7 Racial Profiling and the Societies of Control Jared Sexton "In Resisting State Violence, Joy James levies an important critique of the Fou- cauldian analytic of disciplinary power! There she argues that the well-known, "late French philosopher failed to adequately comprehend the persistence of "racist violence as a basic structural feature inthe social formation of Western modernity. That is to say, discipline (as Foucault discusses it) simply does not supercede or even significantly (q7-UF fact nonetheless subject and control as what we might understand as forms of supplem ‘Lam not suggesting that blacks are therefore normalized, like the subjectssents neither a breakdown of the strategies of containment, assimilation, or so- cial control nor an excess of entrenched power threatened by the prospect of, which really means any manner of brutalization whatsoever, including so- called unjustified shootings. In each case, the police enjoy a virtual immunity from prosecution and rarely experience even intern change from bel ive or strategic, Organized, systemic racial vi rein isnot only practical, however—the effect of negligent judicial oversight or disorganized civilian review boards—itis also codified as what Janet Koven Levit terms “constitutional carte blanche.” There recourse against the violence and violation of the are, according toa recent Human Rights Watch rep. ary, It is what allows for wars in the proper sense to be fought, even the most brutal one-sided massacres. It embodies the permanent state of exception par excellence. Empire thus exceeds its poi ever blacks are concerned, an the sooner, the better? We must end more attention to the pleasures of mi ism itself, the pure enjoyment of collective destruc police departments “shielded from fice" At this point of extremity, the power of life and death rests clearly in their hands, granted by official decree. Before the pol al, economic, and 1e multitude could stand wwe do not live under jonal (or other) protection of any sort. We are, in short, ‘naked before the social fantasies of ‘Under such conditions it should surprise no one that “racial profiling” as of the police is not only possible 1g hyperbolic about my argument here. Reading the legal scholarship on racial profiling, one get a distinct sense ‘of vertigo. What one finds there is an infinite regress around the standards of “probable cause” set forth in the Fourth Amendment protection against “unrea- law? To say this is no mere institutionalized practice of the agen or pervasive but ent embellishment, however, no meré name calling ging forengagement. Too often commentators write off the obvious exhilaration displayed by those intent on “killing the black community” as a character flaw of a fanat lass faction$ its social-psychological Achill this atitude—sometimes smug, sometimes hopeful—conceal ‘mately unsustainable faith cor the inexplicable inevi ‘of hubris or the drunkenness of a seemingly absolute power. Prior ‘of September 1 idinal economy of antiblackness was broug sharp relief by an international forum on the question of racial profiling in th United States, but most critical analyses to date have consistently retreated from its discussion in favor of what are by now hackneyed explanations or me ‘moral denunciations. Needless to say, the issue never fail to resurface, produc sonable searches and seizures.” A numberof scholars have amply demonstrated hhow, for instance, the recent cases of Ilinois v. Wardlow (2000) and United States v. Whren (1996) effectively circumvented the standard of ‘reasonable sus- picion” that previously governed the conditions under which the police might stop and frisk pedestrians or motorists during routine traffic stops.” That earlier standard of reasonable suspicion was established in Terry v; Ohio (2968) «ase from which the well-known “Terry stop” takes its name. However, on even ted a loophole around the 2001, the ing each time the most acute interference inthe discourse and organization of greatly during its war on drugs, as Reagan declared it in 1982 We might radical politics. 6 away of the standards of suspicion, yet if we ory of Fourth Amendment protections, we find ‘Genealogy of Pol again that probable cause itself reduces down to an equally vague and problem- In the contemporary United States, the police operate as the unaccountable ar tic standard of protection. As H. Richard Uviller remarks in Virtual Justice: 1 violence, the agents of a domestic militarism that underwrites ism and interventionism. They are, as a rule, afforded imput 3 to use what we continue to euphemize as “excessive force Probable cause is not a very apt te nothing whatever with causality B Aescribe the degree of suspi has little to do with probability and the term chosen by the Framers to te for the government to move into 198 JARED SEXTON RACIAL PROFILING 199particular the Forbla jon is acute. The most recent attack on Fourth ‘Amendment protections followed immediately the Warren Court “due process revolution,” as inaugurated by its decisions in the Mapp (1961) and Miranda (4966) cases This shift in judicial opinion in favor of criminal suspects and de- fendants,disproportionately black and characterstically depicted as such, was supposed by some to be the criminal-law equivalent to or extension of then re- cent civil law reforms. The motion toward constitutional protections for blacks ‘was, then, taken to be a byproduct of the limited success of the Civil Rights Mover syond a reasonable doubt, not even more likely than not. But suspicion, That’ the best we can do to ‘Not certain ‘more than a hunch or [mer Of course, the Fourth Amendment was intended to preclude the use ofthe “general warrant” or “writ of assistance” carried by British colonial officers be- fore the Revolution, which sanctioned the search and seizure of anything and everything in the home or on the person of agiven “suspect.” In other words the parameters of search and seizure were at the discretion of the colonial police and not subject to any judicial review. It is safe to say that the police today have such that under present circumstances “we all sry whims and unsupported hunches of police officers."® The pretexts available to stop and frisk any pedestrian or motorist they so choose are as numerous as they are unavoidable. In a motor vehicle, any infraction of the trafic code, however minor, can lead to le search and ‘one can drive for even a few blocks without committing , the mainstream presented ominous criminal tendencies, among other things. ‘The idea that blacks could or should have both civil and criminal rights thus entered the furor of an emergent “law and order” political culture whose execu- ‘tive legislative, and judicial wings all feverishly and collaboratively retrenched, ‘The legal history from Richard Nixon to Ronald Reagan to George W. Bush— fom “war on crime” to “war on drugs” to “war on terror" —is alarmingly short. ‘The liberal civil-rights legislation and judiciary review enjoyed a very brief and ven that" arrest. 4 minor violation," one is imminently open to police encounter on the streets and highways. Simply walking away from the police is now grounds for a stop and frisk, despite the supposed constitutional right to do so. Standing stil is also grounds for a stop, ether in particular designated “high-crime areas” or in any setting in which the police judge your presence “incongruous” In theory, everyone in the United States (and many outside its boundaries) is subject to these rules of engagement. Yt, as Ia Glasser, former director of the ‘America Civil Liberties Union (Actv), recently noted, while the police could, say, randomly raid apartment buildings on the Upper West Side of Manbat- they clearly do not. Ashe put because most ofthe folks who live in those apartment b dont do it because if they tried to doit, the outrage would become so big 50 fast that it would become politically impossible to sustain." We might wonder ‘who would be outraged at such operations and whose outrage would make a difference? At any rat ‘of the ground fantasy of “white America” There is, finally, no golden age for blacks before the criminal law. Therefore, in our discussions of a so-called creeping fascism oc nascent authoritarianism or rise ofthe police state, particularly in the wake ofthe Homeland Security and paa1or acts, we might do better than trace its genealogy to the general warrant (or even the Executive Order), whose specter forever haunts the democratic experiment of postrevolutionary civil society Instead, the proper is the antebellum slave code and its tecedents in colonial statute, not because the trajectory of this egal hi threatens to undo the rights of all, but precisely because the prevailing liber- farian impulse inthe United States has so resourcefully and recurrently ren- deed the concrete situation of blacks in metaphorie terms. Under the force of this law, blacks, who were clearly inthe polity but de- fitvely nt of i, were not on tof investiga tan and yield fruitful res the verdict of his analysis is clear: wailable to arbitrary search and seizure—the bane of the general warrant—but were, in the main, always already searched and seized. More to the point, they had, in the famous phrase, “no righ white man [was] bound to resp. ‘ery—in other words, the last in our airports, and at our customs check: irrespective of class, and without distinctions (On our highways, on our streets points, skin color once agai ce again is being used ts? based on education or economic status, skin color reason to violate people’ as a cause for suspicion, and a suflici 200 JARED SEXTON RACIAL PROFILING. 201