Policing and incarceration
Crimes of the State | Week 4, Lecture 8
April 22, 2026
The state and legitimate force
Max Weber (1919)
“a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”
- Monopoly: sole holder
- Legitimacy: the acceptance by those subject to power…
- That the exercise of that power is justified
- Rules ought to be obeyed
- Not just because refusal is dangerous
- But because the ruler has some “right” to issue them
Police are the everyday embodiment of the state’s monopoly on violence
What makes police violence “legitimate”?
- Legitimacy is not automatic: it is claimed, contested, and sometimes lost
- Legal authorization: force is applied under written rules and statutes
- Procedural fairness: stops, arrests, and uses of force follow established procedures
- Accountability: officers face meaningful oversight and consequences
- Public consent: communities recognize the authority as valid
Selective enforcement and legitimacy
- Even when the law is neutral on paper, its application often is not
- Disparate enforcement erodes the claim to legitimate monopoly
- Procedural fairness: same rules, different enforcement
- Public consent: authority may not be recognized as valid where it is felt to be arbitrary
Remember Hobbes?
- Citizens surrender their right to violence in exchange for protection
- Ideally, the social contract requires equal protection
- Selective enforcement means some bear the costs of the contract
- …without the benefits
- The sovereign has not held up its end of the social contract
Prisons and the long history of confinement
- Confinement has existed for centuries, often without formal legal process
- Imprisonment as direct punishment emerged in 18th-century Western Europe
- Shift away from public spectacle and bodily punishment (see lecture 7)
- Colonial expansion exported the prison model globally
- Purposes have long been contested
- Punishment? Deterrence? Rehabilitation? Incapacitation? Something else?
International norms on detention
- Geneva Conventions (1949): humane treatment of prisoners of war
- Applies in armed conflict; often cited as a baseline in peacetime
- UN Standard Minimum Rules for the Treatment of Prisoners
- Adopted in 2015, also known as Mandela Rules
- Prisoners retain basic human rights
- Access to legal counsel and confidential communication
- Clear information about charges and reasons for detention
- Adequate food, health care, and humane conditions
- Almost no rules on post-incarceration, e.g., restrictions on employment, voting, etc.
“No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” — Nelson Mandela
Case study: Japanese American internment
- December 7, 1941: attack on Pearl Harbor, within months Executive Order 9066 implemented
- ~120K people of Japanese ancestry forcibly relocated, ~2/3 of which were US citizens
- Relocated to camps in remote areas including in California
- Inadequate housing, education, nutrition, health care
- 1943: military began drafting Japanese Americans; many served with distinction
Korematsu v. United States, aftermath and reckoning
- Fred Korematsu, a US citizen, refused to comply with the order
- Argued this violated rights of Americans of Japanese descent
- Supreme Court ruled 6–3 in favor of the government
- Security justifications overrode civil rights
- After WWII, internees returned with little support to rebuild lives
- Decades of advocacy from community organizations
- Civil Liberties Act (1988): formal apology from US government
- $20,000 in reparations per surviving internee
- Korematsu was not repudiated until Trump v. Hawaii (2018)
- Supreme Court upheld travel ban from Muslim countries
- Roberts: “Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.”
US incarceration today and Alexander’s argument
- The US has roughly 5% of the world’s population
- …but roughly 20% of the world’s incarcerated people (1.9M)
- Incarceration rates 5–10x those of peer democracies
- Caste: a group locked into an inferior position by law and custom
- Alexander: the US redesigns racial caste systems
- Slavery \(\rightarrow\) Jim Crow \(\rightarrow\) Mass incarceration
- Each system was legal and legitimated in its own moment
- Today, incarceration places restrictions on employment, voting
- The law does not need to mention race to produce a racial caste
- It only needs to be enforced along racial lines
- Recall selective enforcement
- Selective enforcement, sentencing, and collateral consequences produce disparate outcomes
- This makes the system harder to challenge in court and in politics
The War on Drugs
- Massive expansion of federal and state/local drug enforcement funding
- Possession arrests rose from ~500K (1982) to ~1.5M (2007) (Department of Justice)
- Drug use rates were similar across racial groups (National Survey on Drug Use and Health)
- Black and Latino people were arrested at much higher rates (FBI Uniform Crime Reports)
- Penalties escalated: mandatory minimums, three-strikes, sentencing enhancements
- E.g., crack/powder cocaine disparity (100:1) produced large racial disparities in sentencing
