The New York Post reports good news (in itself a newsworthy event):

The NYPD will no longer make arrests or hand out tickets if people flout the mask-covering rules in the Big Apple, the mayor said Friday.

“Absent a serious danger to the public, NYPD will not take enforcement actions for failing to wear face coverings,” Mayor Bill de Blasio said during his daily press conference.

The shift in enforcement comes two days after another controversial video emerged of a police interaction with a woman and her young child in the subway over a mask.

Hizzoner said he wanted to reset the city’s approach on enforcement.

“The reset will be this: We start with the fundamental notion the NYPD is here to protect lives, to save lives, and where we see the greatest danger to lives in terms of the coronavirus and the areas where we can enforce is around gatherings, particularly large gatherings, so that’s where we’re going to focus,” the mayor said.

NY Post, May 15, 2020

Amidst the angry exhortations to “stay the f*ck home” and the like, fervent enforcers and shamers may have missed the news: NYPD has made dozens of arrests, most of them of people of color, and some of them violent. The focus on shaming people for behavior in the outdoors continues: here in San Francisco, people’s aggressiveness toward perceived violations has percolated to a point that one of my favorite journalists, Heather Knight, had to shame the shamers for targeting the (largely nonwhite) children of first responders. Only today at the skate park (our updated stay-at-home order allows us now to be there) someone thought it proper to video film the skating kids, including my 2.5-year-old son; needless to say most of the kids were not white. Of course, it’s not just police that is doing this racialized enforcement, as this ugly incident and these ugly incidents show.

We already know about the racial disparities in COVID infections and deaths, and today’s news highlights the counterpart: people at the bottom of the social ladder are also on the receiving end of the brunt of social distancing enforcement. A good way to make sense of this is to go back to the basics of theoretical criminology.

Conflict criminology, a strain of theoretical criminology originating in the 1960s and 1970s, highlighted the way in which the definition of crimes and enforcement of laws affirmed and exacerbated the existing unequal social order.

Thomas Bernard explains its premises:

  1. One’s “web of life” or the conditions of one’s life affect one’s values and interests.
  2.  Complex societies are composed of groups with widely different life conditions.
  3.  Therefore, complex societies are composed of groups with disparate and conflicting sets of values and interests.
  4.  The behavior of individuals is generally consistent with their values and interests.
  5.  Because values and interests tend to remain stable over time, groups tend to develop relatively stable behavior patterns that differ in varying degrees from the behavior patterns of other groups.
  6.  The enactment of laws is the result of a conflict and compromise process in which different groups attempt to promote their own values and interests.
  7.  Individual laws usually represent a combination of the values and interests of many groups, rather than the specific values and interests of any one particular group. Nevertheless, the higher a group’s political and economic position, the more the law in general tends to represent the values and interests of that group.
  8. Therefore, in general, the higher a group’s political and economic position, the less likely it is that the behavior patterns characteristic of the group (behaviors consistent with their values and interests) will violate the law, and vice versa.
  9. In general, the higher the political and economic position of an individual, the more difficult it is for official law enforcement agencies to process him when his behavior violates the law. This may be because the types of violations are more subtle and complex, or because the individual has greater resources to conceal the violation, to legally defend himself against official action, or to exert influence extralegally on the law enforcement process.
  10. As bureaucrats, law enforcement agencies will generally process easier rather than more difficult cases.
  11. Therefore, in general, law enforcement agencies will process individuals from lower rather than higher political and economic groups.
  12. Because of the processes of law enactment and enforcement described above, the official crime rates of groups will tend to be inversely proportional to their political and economic position, independent of any other factors (such as social or biological ones) that might also influence the distribution of crime rates.

Thomas Bernard, Distinction between Conflict and Radical Criminology

Radical criminology goes even further:

  1.  No consensus exists in society on the basic values and interests of individuals, and on the contrary, society is characterized by conflict on these issues.
  2. Society in general is divided into classes whose members have similar values and interests, the principal classes being those who own the means of production (the ruling class) and those who are employed in production (the working class). The principal conflict in society is between the ruling class and the working class.
  3. Crimes are defined as socially harmful actions that violate basic human rights. That includes both “street” crimes in which the lower class preys on itself and on others, and ruling class crimes in which the lower class is victimized through unemployment, pollution, and exploitation. Because the law is a tool of the ruling class in its conflict with the working class, the socially harmful actions of the ruling class are generally not defined as crimes by the official criminal justice system.
  4.  Conventional criminologists accept the definitions of crime provided by the law, and so assume a technocratic role in the social control of the working class. They do this through “correctionalism,” which attempts to reconcile the working class to the structure imposed by the ruling class, and through “reformism,” which attempts to improve the operation of the criminal justice system and increase its effectiveness in controlling the working class.
  5.  Radical criminologists reject the definitions of crime provided by the law and study all socially harmful behaviors that violate basic human rights. They argue that contradictions in the capitalist economic system are the underlying causes of these behaviors.
  6. The crime problem can be solved only by the overthrow of the capitalist economic system and the establishment of a socialist state. Once capitalism is overthrown, the law in its present form will eventually become unnecessary, as the conflicts between classes will have been resolved.
  7. The principal task of radical criminology is to promote the overthrow of the capitalist economic system, and thus radicals must guard against the danger of “cooptation,” that is, having specific points of radical criminology accepted by mainstream criminology and placed in a context that does not promote the overthrow of capitalism.

Bernard, see above

This distinction shows radical criminology as much more engaged with the Marxian social structure, and having more to say about what the crimes really are. Even though the two theoretical strains differ in the extent to which they accept the existing definitions of crime, the classic distinction between “crimes in the streets” and “crimes in the suites” comes in handy. The wealthy and socially powerful wreak harms that quite possibly should be defined as crime (corporate malfeasance, environmental crime), but sometimes escape the definitions altogether, because the law serves the interests of the ruling class or, if it exerts autonomy, overall supports the existing unequal social order. When the wealthy and socially powerful *do* commit crimes that are defined as such, they avoid enforcement either because they commit them in places and manners that escape detection, or because they wiggle their way out of criminal entanglement using social advantage and connections.

Social distancing violations are no different, in this respect, than any other type of crime. The most tragic example of “crimes in suites” in this pandemic that I can think of is the horrific story of the first known COVID-19 casualty in Brazil, Cleonice Gonçalves. Cleonice worked as a domestic worker at a wealthy Rio de Janeiro neighborhood. Her employer, who had just returned from holiday in Italy, was feeling ill and sought testing for coronavirus, but apparently did not inform Gonçalves, who had worked for the family for decades. The employer recovered; Cleonice died.

But this story holds the key to explaining why, through a conflict criminology lens, it is poor people and people of color that are bearing the brunt. First, wealthy people can avoid violating the law altogether. Some of us are riding this out in vacation homes, where they have extensive grounds, pools, and play structures, while some of us live in apartment buildings and projects devoid of natural beauty and space, who have to look for respite in city parks and beaches. Being able to afford grocery and takeout deliveries spares one the need to go outside and, by consequence, the possible formal and informal social control if one happened to forget their mask at home. Those of us with more social advantages have a more reliable internet connection, more access to toys and books for our children, which allows us more flexibility in entertaining our kids and thus less need to go outside.

Second, when wealthier people violate social distancing mandates, they can afford to do so in ways that keep their behavior undetected. Sneaking out to get your hair cut (or worse, having your hair stylist to come to your house), having your house cleaned by a cleaner who travels over to you (and faces risks outside and, worse, at your home), and quietly socializing with others indoors, allows you to engage in behaviors that are much more harmful to public health than outdoor mask-non-wearers.

Third, relatedly, law enforcement focus and priorities play a role in where crime is enforced. This is not news, of course, though the question of whether high enforcement priorities are necessarily racist is more complicated than it seems. But it is rather obvious that privacy concerns and the practicalities of law enforcement target places where people with less social advantage are more likely to be. Even if the police know that so-and-so has a house cleaner, coiffeur, or masseur come in once in a while, there are many practical and ethical disincentives to enforcing inside the home (they should get a warrant, right?).

Fourth, when the people at the lowest rungs of the social order violate the stay-at-home mandates, what they do is more likely to be perceived by all of us, including well-meaning folks, as a problem and a violation. Last week, UC Hastings and other Tenderloin institutions and businesses sued the city of San Francisco for the worsening conditions in the Tenderloin neighborhood. The increasing congregation of unhoused people in tents, in close proximity to each other, without bathrooms or hygienic facilities or reliable healthcare, is risking them first and foremost, but also, of course, others in the neighborhood. And yet the concern is, of course, that when law enforcement intervenes, it will be to “clean” the sidewalks and remove the nuisance-turned-serious-contagion-risk, rather than put together long-term plans to house and treat these folks properly. This is right out of the Anatole France maxim that critical criminologists quote all the time: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”

The irony, of course, is that the “crimes in suites” are much more perilous, from a public health perspective, than the “crimes in streets.” The risk of becoming infected outside is considerably lower than the risk from indoor congregations. The truth is that the ire about the spring break revelers in Florida was misdirected at their daytime beach activities, and should have been directed at the indoor partying later at night. But we focus on enforcement outdoors for the same reason that we look for a lost wallet at night under a street lamp: not because it’s more effective, but because it’s easier.

The tragedy of this is not just the hostile interpersonal environment this creates, but the concern that, if law enforcement intervenes because of some concerned citizen’s complaint, folks who are lacking social advantage to begin with will end up in jails and prisons, where their risk of contagion is so much higher, contributing to the scary incubators of disease that we are fostering in our prisons these days.

I suggest we all think about this the next time we have an urge to scowl at someone on the sidewalk. Your intentions are good, and you want us all to stay healthy, but your ire is misdirected at targets that endanger you less, and who are themselves endangered more by your actions.

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