This article was produced with support from The Economic Hardship Reporting Project and the Knight First Amendment Institute.
I talked to L. through the mesh wire of a holding cell in the basement of the New Haven County Courthouse. He wore the grime of months living outside like another skin and stared at Carly Levenson, my clinic partner, and me with jaundiced eyes. When we met in the fall of 2014, he was a thirty-year-old recovering drug addict; Carly and I were second year students in the Yale Law School Criminal Justice Clinic. A week before, when I’d been pondering how to introduce myself to a new client, I’d imagine a young black man, like me, not L., a blue-eyed white guy. (L.’s name has been withheld to protect his privacy.)
“The Jungle” is what local police officers call the 301-unit housing complex where they picked up L. They figured that any white person walking through that neighborhood must be trespassing and desperate for narcotics. Two officers stopped and questions L. about his presence in the neighborhood. L. told them that he’d been walking through Church Street South, the complex that officers called “The Jungle,” as a shortcut to downtown New Haven. When asked why he’d ignored the no trespassing signs, L. said he’d never seen them and that everyone cuts through Church Street South to go downtown.
The officers didn’t believe L. and arrested him for trespassing. When they searched him, the officers discovered a small plastic bag and a glass pipe. Both contained traces of crack cocaine. The drug charges that L. faced carried a five-year mandatory-minimum prison sentence. Though I recognized the community where L. was incarcerated, I’d expected his whiteness to shield him from the attention of the police. I was wrong. Now I struggled to explain an arraignment process that my client knew better than either of us. Minutes later, we would stand beside him at his arraignment as he plead not guilty to trespassing, drug possession, and the possession of drug paraphernalia.
One afternoon, Carly, who is white, and I walked through the neighborhood to check out L.’s story. She wore slacks, a dress blouse, and a rain jacket. I wore a dark suit. Walking through the neighborhood does get you downtown more quickly and we nearly missed the no trespassing signs hung high on the side of the concrete buildings. As we left the area, a black man about our age asked if we needed anything. Then he asked us a second time. I grew up in neighborhoods like this, around people who sold narcotics. I recognized the look he gave us, his gaze and nod letting me know that there were few good reasons that we’d be there, in the rain, on that day and that if we wanted drugs he had what we needed.
During the last two decades, policing has become synonymous with surveillance: the intense scrutiny of persons in public spaces.
When our client walked through the area, probably missing the no trespassing signs as we nearly did, the two cops who stopped him assumed that he had been looking for drugs, in the same way that the dealer figured that a white woman and a black man walking through that neighborhood must have been craving illicit drugs.
During the last two decades, policing has become synonymous with surveillance: the intense scrutiny of persons in public spaces. Poverty and the symptoms of drug addiction signify criminality to the police in ways similar to race. This surveillance targets the most vulnerable people in American society: people of color and poor whites. L. experienced a form of social oppression well known to people of color, targeted because their presence is considered a threat to others, because of their appearance, race, or presence in certain public spaces.
Mass incarceration in the U.S., is largely thought of as a problem for black and brown communities. But this characterization risks masking the pervasive injustice that befalls others who live in and around those communities. The threat of surveillance has fallen disproportionately on African Americans and Latinos for decades. But during the era of mass incarceration, surveillance has increasingly become further disconnected from any legitimate suspicion of criminal behavior.
The new approach makes surveillance seem like a primary responsibility of government. But this purported governmental “responsibility” (which does not appear in the Constitution) is rapidly overtaking the right to be free from surveillance, a protection that the Fourth Amendment to the Bill of Rights guarantees.
We live in a country where the poor are often presumed guilty, since they have failed to pull themselves up by their bootstraps. This “failure” has profound consequences. As Barton Gellman and Sam Adler-Bell, a senior fellow and senior policy advocate at the Century Foundation, noted in the 2017 Century Foundation report, “The Disparate Impact of Surveillance,” the gaze of the state is “heaviest in communities already disadvantaged by their poverty, race, religion, ethnicity, and immigration status.”
In his 2001 work Overseers of the Poor, political scientist John Gilliom documented 100 years of surveillance of the poor in America. During the Great Depression, only families who did not have working cars received assistance from the federal government. Gilliom notes that families “met this requirement by putting their cars up on cinder blocks and removing the wheels.” Two generations later, President Bill Clinton’s 1996 welfare reform law, The Personal Responsibility and Work Opportunity Reconciliation Act, included provisions penalizing women who did not disclose the names of the fathers of their children. They lost Temporary Assistance for Needy Families benefits, their basic welfare support payments.
Surveillance was a key tool in 'broken windows'-style policing — penalizing disorder to keep it from morphing into crime.
Many of the people caught in this web are impossible to identify because the surveillance is erased from the public record. Sociologist Alice Goffman made a valuable contribution to the understanding of surveillance in her 2014 work On the Run. The account of a group of young black men in Philadelphia, some of them low-level drug dealers, demonstrated that the young men’s belief that they were under surveillance changed how they lived their lives.
They avoided visiting friends in prison because they feared that correction officials would run their license plates and names for possible warrants. They avoided seeking jobs that required background checks because their criminal records almost certainly guaranteed that they wouldn’t get hired. In these and other cases, the fear of surveillance led to a loss of free association and free expression.
The New York Police Department’s stop-and-frisk campaign has long been synonymous with “broken windows”-style policing — penalizing disorder to keep it from morphing into crime. Surveillance was a key tool in this campaign. Between January 2004 and June 2012, the NYPD stopped more than 4.4 million people, roughly 80 percent of those people were African American or Latino. In about half the stops, the NYPD searched for weapons as well. In 98.5 percent of those searches, officers found no weapon.
In the landmark 2013 case Floyd v. City of New York, Federal District Judge Shira A. Scheindlin ruled that the NYPD violated the Constitution’s protection against unreasonable searches when it stopped African Americans and Latinos with no basis to do so. The NYPD also violated the Constitution’s guarantee of equal protection under the law when officers targeted people based on race. It’s a splendid ruling, featuring a strong condemnation of NYPD policies and practices. Yet its reliance on evidence about the low percentage of stop-and-frisks resulting in criminal charges suggests a perverse outcome: that the surveillance might have been constitutional if there had just been more evidence of wrongdoing on the part of the defendants.
The Fourth Amendment’s protections against unreasonable searches and seizures extend to everyone. Yet many people would distinguish the troubling police tactics exemplified by stop and frisk from what happened to L. They might suppose that since searching L. produced evidence of drug possession and related crimes, the two police officers did not violate his rights. But imagine that L. had been a Yale student visiting friends in a tony local suburb. If officers stopped him, arrested him for trespassing, and then searched him, his family would have hired an attorney, and that attorney almost certainly would have used the circumstances of the initial stop and search to challenge the arrest on Fourth Amendment grounds.
So why didn’t my partner and I challenge the search if we believed that the police officers violated L.’s Fourth Amendment right to be secure against an unreasonable search? Because L., like many entangled in the criminal justice system, faced numerous challenges. Unemployed, homeless, and struggling to receive consistent treatment for his addiction, he was also on probation.
The circumstances of his life meant he risked incarceration if he tried to press his case. Had we challenged the search, the state of Connecticut would have charged L. with violating his probation. Even if the evidence from the search had been ruled inadmissible in a criminal trial, it would have still been admissible in a hearing for a probation violation. L. had no chance of avoiding such a violation, and would have received up to six months in jail, in addition to facing the mandatory five-year minimum sentence on the drug charges.
The prosecutor agreed to drop the trespassing charge and not pursue a probation violation in exchange for a guilty plea to felony drug possession. So, two months after being arraigned, L. pled guilty in exchange for unsupervised probation and a suspended two-year sentence. He wanted to disentangle himself from the system, even if only partially.
His goal was freedom, not justice.
The specter of surveillance — systematic and close observation — frequently disappears in the machinations of the system that relies on it. Public spaces become sites of potential harassment and, really, persecution. Under the authority of police officers and others not normally associated with surveillance like public housing officials, freedom of speech and the right to privacy slowly diminish in all vulnerable low-income communities regardless of race or ethnicity. L. was a victim of the surveillance state, and for people like him, America is a country of vanishing justice.
Reginald Dwayne Betts is a lawyer and a Ph.D. student at Yale Law School and an Emerson fellow of the New America Foundation.