The path from Laquan McDonald’s summary execution by Chicago police officer Jason Van Dyke to the reluctant release — over a year later — by the Chicago Police Department of video of the killing shines yet another spotlight on the disproportionate use of force by police against young black men and women and the failure of authorities to identify and punish this behavior.
The McDonald killing also reflects a larger injustice that afflicts our society. This injustice manifests itself in a system of behaviors, norms, laws and technologies ostensibly put in place to maintain public order but is most often directed against people Victorian-era authorities called the “dangerous classes” — minorities and the poor, who are treated as a persistent threat to the established social order.
This complex system of overlapping surveillance regimes did not emerge overnight but through reactions to moments of crisis, eventually becoming permanent aspects of government and society over time. In 18th century New York, for example, the fear of armed insurrection by enslaved people led to a series of ordinances strictly regulating the movement of blacks and Indians within the city. One such class of statutes required all unattended slaves to carry lighted lanterns after dark so that they could be easily identified and monitored by white authorities. Any person of color found in violation of these lantern laws was sentenced to a public flogging of up to 40 lashes, the actual number left to the discretion of the slaveholder.
Fast-forward to the late 20th century, and we continue to see the instantiation of surveillance mechanisms in response to perceived public crises. These laws and practices were enacted seemingly to maintain public order generally, but disproportionately targeted minorities and the poor.
The long-standing practice within the U.S. legal system of using race as a signal of increased risk of criminal behavior led to abusive stop-and-frisk policies in New York and elsewhere, enacted as part of a program of “zero tolerance” policing. The subjects of these programs are disproportionately African-Americans, who are targeted by police for “furtive movements,” “inappropriate attire,” “avoiding police” or “fitting a relative description.” Years of data have shown that these programs do not reduce the crime rate but instead serve only to humiliate, marginalize and contain black and brown people.
The system of structural surveillance inflicts multiple, simultaneous harms on communities of color. For example, the intersection of two key structural surveillance systems — prisons and foster care — disproportionately affects black mothers, who are at higher risk than whites of being incarcerated and having their children removed from them. According to a 2010 Bureau of Justice Statistics report, black children are 7.5 times more likely than white children to have a parent in prison.
Scholars have long shown that children in foster care are at an increased risk of incarceration, while children with incarcerated parents are more likely to end up in foster care, with U.S. Department of Health and Human Services data showing black children in foster care at a rate twice that of white children, adjusted for relative population sizes.
The buildup of the prison and foster care systems as state responses to social insecurity obscures the need for social change while further monitoring, disrupting and punishing poor families of color.
Even the processes through which social services are delivered fall within this system of structural surveillance. Social programs for the poor in America began to take a sharp disciplinary turn in the mid-20th century, as existing racial, political and social orders began to change. A conservative backlash movement to reform social programs adopted racially coded language that presented images of an out-of-control minority underclass (recall the breathless warnings during the 1980s of “welfare queens” taking advantage of an overly generous benefits system), driving perceptions among white voters of a growing crisis that required immediate and severe action.
The result was a wide-ranging system of welfare surveillance, stripping benefit recipients of their dignity, privacy and, ultimately, their social safety net. Under the guise of fraud prevention and quality control, government agencies closely scrutinized applicants,
demanding that they identify all sexual partners, submit to blood and urine tests for drug use and open their homes to unannounced (and warrantless) searches by government agents.
Because racial patterns of poverty can be directly attributed to systems of slavery, Jim Crow, redlining and other efforts to control or marginalize African-Americans, these reforms have had a disproportionate — and devastating — effect on black communities in this country. And the resulting welfare surveillance system functions as a new form of racial regulation.
At its core, this pervasive system of structural surveillance is a means of managing minority populations, a burden disproportionately borne by African-Americans. Rather than address the structural causes of chronic problems such as poverty, health inequities, homelessness and crime, this system centers the blame on the most marginalized communities, where the vulnerable and disenfranchised are left to bear their true costs: the brutal toll of both social disadvantage and state violence.
By demanding state recognition of the equal humanity of black people, the Black Lives Matter movement challenges not only individual cases of police brutality but also the unjust system of state surveillance that supports them.
Roberts is a Penn Integrates Knowledge professor at the University of Pennsylvania. Vagle is executive director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School.