“US criminal justice is not one system of enormous racial inequalities, but two different regimes,” MSNBC presenter Chris Hayes writes in his book, A colony in a nation. “One (the nation) is the kind of police regime you expect in a democracy; the other (the colony) is the kind you expect in an occupied country. ‘
George Floyd’s death and the brutal attacks on protesters reveal the split system Hayes describes. The idea that the US contains two completely different operational models for police and criminal justice is grimly reflected on our Twitter feeds, our televisions and outside our windows every day.
I spoke to Hayes by phone on Tuesday to discuss the parallels between the police regime the founders of America are revolting against and the one black American currently facing, why presidents who loudest call “law and order” are often the most blatantly illegal The role of public humiliation in fueling the social revolution, militarization of the US police and much more.
A copy of our conversation, edited for length and clarity, will follow.
The story we are often told about the American founding is one of an uprising against illegal taxation. In the book you tell a completely different story. To what extent did the founders rebel against a version of police brutality?
The American revolution was clearly complicated. But I think in telling that history, we focus on taxes and not on the means by which taxes were collected. Taxation then meant rates applicable to goods that were imported or exported. And the way the rates were collected at the time was customs, which is essentially police work. Officials would literally search the ships for how much tobacco or whiskey was on board.
That creates what I call in the book “the first generation of stop and body search”. The British pull every ship aside. And when they act hard, it is oppressive and tyrannical. That is why in the statement of details of the Declaration of Independence against the king you get the sentence: “He has sent swarms of officers to harass our people and eat their contents.” That actually refers to British police.
At some point, the Crown realizes that normal customs officers are not enough, so they send British naval officers. This was a huge deal at the time. It’s one reason we have this search and seizure protection in the Bill of Rights. There are tremendous trials over this. There is a lot of looting. Customs officers, when they tried to see the ship, would be received by crowds at the quay. They would catch the officers. They would honor and feather them. They would lock them up. They crossed them around the city to beat them up for everyone. And that was the police at the time.
Revolutions are complicated, but this part of it was an uprising that was very actively caused by the cruelty and repression of the police force of the crown. It is something we are not often taught, but it is there, just like a day.
The book distinguishes between two very different police and criminal regimes in modern America: “the nation,” which is governed under the logic of democracy, and “the colony,” which is governed under the logic of occupation. What exactly is “the colony” in this analysis, and in what ways is it governed as such?
The Colony is, in some ways, the lack of accountability and consent of the ruler, which defines a nation and defines a culture of democratic police work. I keep thinking right now on the steps in California during one of the shutdown protests where a bunch of very violent protesters get in the faces of the police pushing them and screaming in their faces – and the police just hold on a bit.
When you see that, you see that the police control people who are their voters in some way and, in a larger sense, their ‘bosses’. These are people who are angry, but who are engaged in constitutionally protected protest, and the police are there to keep the peace, but not to dominate it. That is the model of democratic oversight.
Domination is the model of colonial police, the model of occupation. It is what happens if you don’t treat the people you control as fundamental members of the community or constituents: they are subaltern, they are subject to the crown – they are subject to the power of the state, not its agents.
And that means you can basically do what you want to do. Now I want to be clear: not every policeman is like that and there are tons of policemen who do police democracy. But fundamentally, police culture, police training, and the legal and institutional frameworks that have emerged around the U.S. police – particularly in predominantly black and brown areas in America – adopt this colonial model.
One place that seems particularly relevant is the militarization of the US police.
Exactly. The Justice Department under Barack Obama has conducted some very good investigations with various police forces. One was one pattern or practical research from the Cleveland Police Department after Tamir Rice was murdered. In one of the Cleveland Police Department neighborhoods, they found a sign referring to it as a “forward base,” the terminology used by deployed service personnel in Afghanistan, where they are more or less off-line and they set up a small forward operating base. That makes the metaphor quite literal: you are a soldier operating in enemy countries. That mindset is poisonous and is present throughout the entire system.
That is a police model in which there is essentially no such thing as the constitutional rights that we take for granted. This was the great finding of Judge Shira A. Scheindlin’s court on “stop and search”: the fundamental protection of the Constitution against search and seizure – largely in effect because of precisely the excessive police force of the British crown I mentioned earlier – was completely lacking. In fact, they did not exist for the residents of New York City, especially for the black and brown citizens.
I often think the assumption in the US is that identical laws and legal structures lead to equal treatment. If the law, as written, applies to all of us, in practice it will apply to all of us. But I think you realize that we are not dealing with dissimilar laws, but radically dissimilar enforcement regimes behind those laws.
I think drugs are where this is most apparent. Something I write about in the book is what would it look like as a regime of essentially total criminal tolerance of young people with resources? The answer is elite universities. People use a lot of drugs. They buy drugs, they sell drugs, and guess what? There is no police enforcement.
So there are those who sell on the corners of neighborhoods, and there are those who trade in the dorms. The same set of general laws applies to both, but they only exist in two different police regimes.
Now I do not want to give up completely the aspiration power of equal justice under the law, but it does not exist. The law is what the legal institutions say. And the legal institutions reflect power. So we are protected from unreasonable search and seizure of the constitution, but that protection is not functionally present in the lives of millions of our fellow citizens.
Something that comes to mind for me is this concept of “law and order”. You have a very interesting discussion in the book about how the two are so often under stress – how the obsession of the US police state to create ‘order’ in poor, black communities is actually at the expense of legality. Can you talk about that? In what sense are ‘law’ and ‘order’ at odds?
The first thing I will say is that the two most egregious lawless presidents of the past 60, 70 years have both shouted loudest about “law and order.” There are those who are extremely sensitive to the law, but Richard Nixon and Donald Trump don’t describe that. Those guys are literally criminals.
The idea that the police are there to maintain order is not entirely ridiculous in the sense that there is such a thing as widespread chaos and disorder that can break out in society. It’s just that order is such a malleable concept: it’s something a community agrees on – a kind of social fabric and a social norm. And especially in the era of “broken windows”, the police are increasingly tasked with maintaining order rather than law enforcement.
This is really grim when you consider the settlement percentages. Compared to 20 or 30 years ago, most large urban police stations have more police officers and larger budgets with less crime. But crime clearance rates have not gone up – or have fallen. That makes sense if law enforcement’s role is only to keep order: Stopping people from breaking windows is very different from solving murders.
I think this tension between “order” and “lawfulness” has really grown over the past week. While I watched the countless videos of police officers with flash grenades and SWAT equipment brutally attacking protesters, all I could think of was a question you ask in the book: Where’s the Constitution in all this? Where are the basics of America anyway?
But this is what happens when you decide that order is our highest national priority – if you maintain an abstract idea of ”order,” it is above the law, above our ideals, above basic humanity. The result is simply terrifying.
I think that’s exactly right. We see police tactics commonly used by people who are out of the picture: pressure, intimidation and ultimately domination.
I find the word domination so remarkable. The president has been explicit about this: The goal is domination. And what does dominance look like? It looks like a knee in the neck. In fact, a boot around the neck is like the oldest trope we have to represent domination and represent tyranny. What is the Colonial Flag? It is a snake that says, “Do not enter me.” Don’t step on me. Don’t put your foot on me. That is domination. And if you do, I will respond.
That is the most essential emotional and conceptual core of freedom and dignity. Self-determination is not to be dominated, to be a free and sovereign person, not to have a boot or knee on your neck. There is nothing more important than what we say we do. So when the president comes out and says we’ll dominate, it’s like he just comes out and says. that is the purpose here – to exercise authority for the sake of authority.
And I think the flip side of domination is humiliation: it is the humiliation of being dominated that makes domination so repugnant and resistance so powerful.
My colleague Matt Yglesias had a very interesting piece that pointed out how police killings of unarmed black men have declined in recent years. That’s certainly important, but one thing your book points out is that these murders aren’t the whole story themselves – the humiliation of life under an oppressive police regime is a big part of that. You call humiliation “the most powerful and most undervalued force in human affairs.” Why is that? What role does humiliation play at such times as this?
Why is George Floyd’s murder so blatant? Because the boot on the neck is how you treat an animal – not how you treat a human. A person does not step on top of another human. It is an affront to a person’s humanity above and beyond the violence and sadism and cruelty and sniffing of a life.
Humiliating someone – and humiliation is the basic core experience in police work for millions of our fellow citizens – is robbing humanity, being kept low. Humiliation is such a powerful emotion because you can’t put it anywhere else. You take it and you push it down somewhere. It doesn’t just disappear, it just builds up.
Something interesting you talk about in the book is that this humiliation isn’t limited to the obvious, like the murder of George Floyd. You write that “for subjects of authoritarian rule humiliation is the permanent state of existence.” And you talk about how every black individual you spoke to in Ferguson experienced instances of humiliation from the police.
Everyone, everywhere. I’d say every black person I know, whether it’s friends, colleagues or people I’ve interviewed, has a story about being humiliated by the police. It is such an important part of the story.
Let’s take another example: the Arab Spring. What was the spark of the Arab spring? It was humiliation by police officers for a minor offense – selling fruit from a cart without a seller’s license – and confiscating the fruit. Then it went to the municipal office, as Mohamed Bouazizi did, to be rejected and essentially told, “Get out of here, you humble fruit seller.”
This police officer had harassed Bouazizi for days and humiliated him. And Bouazizi, who had been working on this since childhood, had no place to put that humiliation. So he set himself on fire. And that’s how it all started: The Arab Spring started as a protest against police harassment. This is how many protests against regimes begin.
It really seems as if the common pattern here is that one blatant display of humiliation activates all of the smaller, more subtle forms of humiliation that have built up over an entire community over time.
Yes! Because almost everyone has experienced it and everyone is holding it in their body as physical memory. Stress and trauma are like pieces of paper that accumulate in the psyche. It is a cliché metaphor to talk about the ‘wound of racism’. But in a literal, psychological sense, being humiliated time and time again is traumatized without any express outlet for it. Have other emotions such as anger or fear; humiliation, actually by definition, has to be bottled because you cannot express it at the moment.
I remember when I read about the American Revolution, I never really understood why the founders would “pitch and feather” colonial officials. Why was that necessary? But within this framework of humiliation, it makes sense: It’s a way to reverse the humiliation to the people who caused it.
Exactly. You humiliate those who have humiliated you. You can easily sit at home and wonder, why do people throw things like water bottles at the police? That’s the reason: You want to humiliate people who humiliated you.
Rereading your book has really reshaped the way I have looked at these protests in recent days. I think our mindset in America, based on how we are taught about recent American history, is to expect disciplined nonviolence as the norm – and then to find any form of violence as evidence of wrongdoing.
However, given the humiliation and fear and violence that are part of everyday life in so many black communities, it may be time to revise that expectation. In any case, I am shocked by how many protesters have had the capacity to remain peaceful during all of this.
I think you are right that people have this set model of how protests should work. And that’s largely because there is one specific protest movement in American life, the 1960s civil rights movement, which has been elevated and celebrated in the national canon.
But even the details of that protest movement are very poorly understood. We are talking about the Selma Bridge as the most iconic version of disciplined nonviolence of King / Gandhi in the face of state violence. But we overlook that those people were highly educated. They went to eight-hour meetings in church basements. It took a militant and incredibly organized movement to realize that moment.
The people protesting today are people who simply take to the streets – they have no training. You watch demonstrators trying to enforce the standards, trying to prevent people from plundering or calling people throwing things, whatever it is. But there is no uniform voice here.
In general, however, what you see is nonviolent protest. That doesn’t mean no other things are happening – of course they are. But most of what you see is nonviolent. That’s noteworthy considering not only the sense of humiliation, but also the total lack of training and organization that takes place because these protests are so organic.
It seems like a pretty smart tactic for those who are against the goals of a particular protest to hold that protest to an essentially impossible standard of pure Gandhian nonviolence.
It is. When the protests in Hong Kong went down, you have people like Marco Rubio and Tom Cotton celebrating the protesters in Hong Kong. Meanwhile, the Chinese state says these people are looters and rioters and break windows. So it’s not that the demonstrators in Hong Kong were this perfectly disciplined model of nonviolence – that no one broke windows or set things on fire or threw things at the police. All three of those things happened. Tahrir was the same. So we are very willing to stand on those edges when it comes to certain protests in other places.
Now I want to be clear: I don’t think people should break windows and set things on fire. I just say as a descriptive question what rebellions and unrest look like. The kind of extremely disciplined, deeply trained nonviolence of King and Gandhian is a special tradition carried by an enormous amount of work and organization. It is only one specific part of what I would broadly call the category of non-violent protest.
You wrote A colony in a nation about a period of black protest and rebellion in which Barack Obama was the President of the United States. Now we have Donald Trump. What do you think it matters when a Trump presidency is on top of all the factors we’ve discussed so far?
The contradictions of the criminal justice system can never be greater than in the person of Donald Trump. He goes from tweeting about Michael Cohen as a snitch to saying “we stand behind our law enforcement.” And [Monday] at night he basically broke the law to take a photo. The law says nothing to him.
At the same time, cities in this country with progressive prosecutors and liberal reformers are not exempted from this. In that regard, I don’t hesitate to say everything about Donald Trump. But he is the ultimate apotheosis of everything corrupt and rotten and wrong with US law enforcement.