“American criminal justice isn’t one system with massive racial disparities but two distinct regimes,” writes MSNBC host Chris Hayes in his book, A Colony in a Nation. “One (the Nation) is the kind of policing regime you expect in a democracy; the other (the Colony) is the kind you expect in an occupied land.”
George Floyd’s death and the brutal attacks on protesters reveal the bifurcated system Hayes describes. The idea that the US contains two entirely different operating models for policing and criminal justice is on grim display every day on our Twitter feeds, our televisions, and outside our windows.
I spoke with Hayes by phone on Tuesday to discuss the parallels between the policing regime America’s founders rebelled against and the one black Americans currently face, why presidents who shout “law and order” the loudest are often the most flagrantly unlawful, the role of public humiliation in fomenting social revolution, the militarization of America’s police forces, and much more.
A transcript of our conversation, edited for length and clarity, follows.
The story we’re often told about the American founding is one of a rebellion against unjust taxation. You tell a very different story in the book. To what extent were the founding fathers rebelling against a version of police brutality?
Obviously the American Revolution was complicated. But I think in the telling of that history we focus on taxation and not the means through which taxes were collected. Taxation then meant tariffs applied to goods that were being imported or exported. And the way that tariffs were collected at the time was customs enforcement, which is essentially policing. 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 frisk.” The British start pulling over every ship. And when they crack down, it’s oppressive and tyrannical. That’s why in the Declaration of Independence’s bill of particulars against the king, you get the line: “He has sent hither swarms of officers to harass our people and eat out their substance.” That’s basically referring to British cops.
At one point, the Crown realizes that normal customs officials aren’t enough, so they start sending British naval officers. This was a huge deal at the time. It’s a reason that we have these protections against search and seizure in the Bill of Rights. There are these huge trials over this. There’s tons of looting. Customs officers, when they tried to see the ship, would be met by crowds at the dock. They would grab the officers. They would tar and feather them. They would lock them up. They’d wheelbarrow them through town to beat them up in front of everyone. And those were the police at the time.
Revolutions are complicated, but this slice of it was a rebellion very actively triggered by the brutality and oppressiveness of the crown’s policing power. It’s something that we aren’t often taught, but it is there, plain as day.
In the book, you distinguish between two very different policing and criminal justice 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 what are some of the ways is it governed as such?
“The Colony” in some ways is the absence of accountability and consent of the governed, which defines a nation and defines a culture of democratic policing. I keep thinking about this moment on the steps in California during one of the shutdown protests where a bunch of very rowdy protesters are getting in the faces of cops pushing them, yelling in their faces — and the cops just sort of hold their ground.
When you see that, what you see is police policing people that are their constituents in one sense and in a grander sense are their “bosses.” These are people who are angry, but they are engaged in constitutionally-protected protest, and the police are there to keep the peace but not dominate them. That’s the model of democratic policing.
Domination is the model of colonial policing, the model of occupation. It’s what happens when you aren’t treating the people that you are policing as fundamentally community members or constituents: They’re subaltern, they’re subjects to the crown — they’re subjects to the power of the state, not agents of it.
And that means you can basically do what you want to do. Now, I want to be clear: Not every police officer is like that and there are tons of police officers who do police in democratic ways. But fundamentally, police culture, police training, and the legal and institutional frameworks that have grown up around American policing — particularly among predominantly black and brown areas in America — take on this colonial model.
One place this seems especially relevant is the militarization of the American police force.
Exactly. The Department of Justice under Barack Obama did a bunch of very good investigations of various police departments. One of those was a pattern-or-practice investigation of the Cleveland Police Department in the wake of the killing of Tamir Rice. They found in one of the Cleveland Police Department precincts, a sign that refers to it as a “forward operating base,” which is the terminology used by deployed service members in Afghanistan, where they’re sort of outside the wire and they set up a small forward operating base. That’s making the metaphor quite literal: You are a soldier operating in enemy lands. That mentality is toxic, and it is ubiquitous throughout the whole system.
That is a model of policing in which there is essentially no such thing as the constitutional rights we take for granted. This was the big finding of Judge Shira A. Scheindlin’s district court trial on “stop and frisk”: The Constitution’s fundamental protections against search and seizure — largely in place because of precisely the excessive policing powers of the British Crown I mentioned earlier — were totally absent. They did not exist in any actual sense for the citizens of New York City, particularly the black and brown citizens.
Often, I think the presiding 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, then, in practice, it will apply to all of us. But, I think what you’re getting at is that what we’re dealing with isn’t unequal laws — it’s radically unequal enforcement regimes behind those laws.
I think drugs are the place where this becomes most evident. Something I write about in the book is: What would it look like to have a regime of essentially total criminal forbearance of young people with substances? The answer is elite universities. People do a shit ton of drugs. They buy drugs, they sell drugs, and guess what? There’s zero police enforcement.
So there are people selling on the corners of neighborhoods and there are people dealing in the dorms. The same set of general laws apply to both, but they just exist in two different policing regimes.
Now, I don’t want to give up on the aspirational power of equal justice under law altogether, but it doesn’t exist. The law is what the institutions of law say. And the institutions of law reflect power. So we are protected against unreasonable search and seizure in the Constitution, but that protection isn’t functionally present in the lives of millions of our fellow citizens.
Something that brings up for me is this concept of “law and order.” You have a really interesting discussion in the book of how the two are so often in tension — how the American police state’s obsession with creating “order” in poor, black communities has actually come at the cost of lawfulness. Can you talk about that? In what sense are “law” and “order” at odds?
The first thing I’ll say is that the two most flagrantly lawless presidents in the last 60, 70 years have both shouted the loudest about “law and order.” There are people that are extremely sensitive to the law, but that does not describe Richard Nixon and Donald Trump. Those guys are literally criminals.
The idea that police are there to maintain order is not totally ludicrous in the sense that there is such a thing like widespread mayhem 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 sort of social fabric and social norm. And particularly in the “broken windows era” police have increasingly been tasked with preserving order as opposed to enforcing the law.
This is really stark when you look at clearance rates. Compared to 20, 30 years ago, most major urban police departments have both more police officers and bigger budgets with less crime. Yet, the clearance rates for crime haven’t budged — or have gone down. That makes sense if the role of law enforcement is only to keep order: Stopping people from breaking windows is very different than solving murders.
I think this tension between “order” and “lawfulness” has become really stark in the past week. As I’ve watched the countless videos of police officers with flash grenades and SWAT gear brutally attacking peaceful protesters, all I really could think of was a question that you pose in the book: Where the hell is the Constitution in all this? Where are America’s founding ideals for that matter?
But this is what happens when you decide that order is our highest national priority — when maintaining some abstract idea of “order” comes above the law, above our ideals, above basic humanity. The result is just terrifying.
I think that’s exactly right. We’re seeing tactics of policing that are usually used on people that are outside of view: pressure, harassment, and ultimately domination.
I think the word domination is so remarkable. The president has been explicit on this: The goal is domination. And what does domination look like? It looks like a knee on the neck. In fact, a boot to the neck is like the oldest trope we have to represent domination and represent tyranny. What is the flag of the colonies? It’s a snake that reads, “Don’t tread on me.” Do not step on me. Do not place your foot on me. That is domination. And if you do, I will react.
That is the most essential emotional and conceptual core of freedom and dignity. Self-determination is to not be dominated, to be a free and sovereign person, to not have a boot or a knee on your neck. There is nothing more core to what we say we’re about. So for the president to come out and say, we will dominate, it’s like he’s just coming out and saying. that is the goal here — the exertion of authority for authority’s sake.
And I think the flip side of domination is humiliation: It’s the humiliation of being dominated that makes domination so abhorrent and resistance to it so potent.
My colleague Matt Yglesias had a really interesting piece pointing out how police killings of unarmed black men have gone down in recent years. That’s certainly important, but something your book points out is that these killings themselves are not the whole story — the humiliation of life under an oppressive police regime is a huge piece of this. You go as far as to call humiliation “the most powerful and most underappreciated force in human affairs.” Why is that? What role does humiliation play in sparking moments like this one?
Why is the murder of George Floyd so egregious? Because the boot on the neck is how you treat an animal — not how you treat a human. A human being does not put a foot atop another human being. It’s an insult to someone’s humanity above and beyond the violence and the sadism and the cruelty and the snuffing of a life.
To humiliate someone — and humiliation is the fundamental core experience in policing for millions of our fellow citizens — is to robbed of humanity, to be made low. Humiliation is such a powerful emotion because there is nowhere to put it. You take it and you push it down somewhere. It doesn’t just go away — it just builds up.
Something interesting you talk about in the book is that these acts of humiliation aren’t restricted to the big obvious ones like George Floyd’s killing. You write that “for subjects of authoritarian rule, humiliation is the permanent state of existence.” And you talk about how every black individual you talked to in Ferguson experienced instances of humiliation at the hands of police.
Every person, everywhere. I would say that every black person I know, whether that’s friends, colleagues, or people I’ve interviewed, has a story about being humiliated by the cops. It’s such an important part of the story.
Let’s even take another example: the Arab Spring. What was the spark of the Arab Spring? It was humiliation at the hands of police officers for a petty infraction — selling fruit from a cart without a vendor’s permit — and having the fruit confiscated. Then it was going down to the municipal office, as Mohamed Bouazizi did, to be turned away and essentially be told, “Get the hell out of here you lowly fruit vendor.”
This police officer had been harassing Bouazizi for days and humiliating him. And Bouazizi, who had been making a living doing this since childhood, had no place to put that humiliation. So he lit himself on fire. And that’s how it all began: The Arab Spring started as a protest against police harassment. Lots and lots of protests against regimes start that way.
It really seems like the common pattern here is that one flagrant display of humiliation activates all of the smaller, more subtle forms of humiliation that have been building up over time throughout an entire community.
Yes! Because almost everyone’s experienced it and everyone’s holding it in their bodies as physical memory. Stress and trauma are like paper-cuts that build up in the psyche. It’s a cliché metaphor to talk about the “wound of racism.” But in a literal, psychological sense, to be humiliated time and time again is to be traumatized without any expressive outlet for it. Other emotions like anger or fear have outlets; humiliation, sort of by its definition, has to be bottled up because in the moment you can’t express it.
I remember when I read about the American Revolution never really understanding why the founders would “tar and feather” colonial officials. Why was that necessary? But under this framework of humiliation it makes sense: It’s a way of turning the humiliation around onto the people who have been causing it.
Exactly. You humiliate those who humiliated you. It’s easy sitting at home to wonder: Why are people chucking things like water bottles at the cops? That’s the reason: You want to humiliate people that humiliated you.
Rereading your book has actually really reframed the way I have been looking at these protests over the past few days. I think our mindset in America, based on the way we are taught about recent US history, is to expect disciplined nonviolence from protesters as the norm — and subsequently to find any acts of violence as evidence of illegitimacy.
But, given the humiliation and fear and violence that is part of everyday life in so many black communities, maybe it’s time to revise that expectation. If anything, I am shocked by just how many of the protesters have had the capacity to remain peaceful through all this.
I think you’re right that people have this fixed model of how protests are supposed to work. And that’s largely because there is one specific protest movement in American life, the 1960s civil rights movement, that has been elevated and celebrated in the national canon.
But even the particulars of that protest movement are very poorly understood. We talk about the bridge Selma as the most iconic version of disciplined King/Gandhi nonviolence in the face of state violence. But we overlook the fact that those folks were highly trained. They were going to eight-hour meetings in church basements. It took a militant and incredibly organized movement to make that moment happen.
The folks protesting today are people just coming up the streets — they have no training. You watch protesters trying to enforcers norms, trying to stop people from looting or calling out people that are chucking stuff, whatever it is. But there’s no unified voice here.
By and large, though, what you’re seeing is like nonviolent protest. That doesn’t mean other things aren’t happening — obviously they are. But the majority of what you’re seeing is nonviolent. That’s remarkable considering not only the sense of humiliation but also the total lack of training and organizing that’s happening because these protests are so organic.
It seems like a pretty smart tactic for those who oppose the aims of a given protest to hold that protest to an essentially impossible-to-meet standard of pure, Gandhian nonviolence.
It is. When the Hong Kong protests went down, you have people like Marco Rubio and Tom Cotton celebrating the Hong Kong protesters. Meanwhile, the Chinese state is saying these people are looters and rioters and breaking windows. So it’s not like the Hong Kong protesters were this perfectly disciplined model of nonviolence — that no one broke windows or lit things on fire or chucked things at the cops. All three of those things did happen. Tahrir was the same way. So, we’re 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 light things on fire. I’m just saying as a descriptive matter that’s what uprisings and unrest looks like. The sort of extremely disciplined, deeply trained King and Gandhian nonviolence is a particular tradition borne of a tremendous amount of work and organizing. It’s only one specific slice of what I would call broadly the category of nonviolent 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. In your view, what difference does it make when a Trump presidency is layered on top of all the factors we’ve been discussing so far?
The contradictions of the criminal justice system can never be more heightened than in the person of Donald Trump. He goes from tweeting about Michael Cohen as a snitch to saying “we stand with our law enforcement.” And [Monday] night, he basically broke the law to stage a photo op. The law means nothing to him.
At the same time, in cities with progressive prosecutors and liberal reformers aren’t exempt from this. In that respect, like I’m hesitant to make it all about Donald Trump. But he is the ultimate apotheosis of everything that’s corrupt and rotted and wrong about American law enforcement.