Afrofuturism, Critical Race Theory, and Policing in the Year 2044
94 NYU LAW REVIEW 1 (2019)
I. Bennett Capers
By 2044, the United States will likely be a “majority-minority” country, with people of color making up more than half of the population. And yet in the public imagination—from Robocop to Minority Report, from Star Trek to Star Wars, from A Clockwork Orange to 1984 to Brave New World—the future is usually envisioned as majority white. What might the future look like in the year 2044, when people of color make up the majority in terms of numbers, or in the ensuing years, when they also wield the majority of political and economic power? And specifically, what might policing look like? This Article attempts to answer these questions by examining how artists, cybertheorists, and speculative scholars of color—Afrofuturists and Critical Race Theorists—have imagined the future. What can we learn from Afrofuturism, the term given to “speculative fiction that treats African-American themes and addresses African-American concerns in the context of . . . technoculture”?1 And what can we learn from Critical Race Theory (CRT) and its “father” Derrick Bell, who famously wrote of space explorers2 to examine issues of race and law?3 What do they imagine policing to be, and what can we imagine policing to be in a brown and black world?
Why focus on policing? *** I chose this focus in part for selfish reasons: I am a criminal justice scholar who writes about technology,4 so these are areas I know well. But, as a black man, I also chose policing because it is here, more than in any other area of the law, that “race matters.”5 Indeed, to a certain extent, many of the problems that plague the criminal justice system—mass incarceration, over-criminalization, and capital punishment, to name just a few—are only intelligible through the lens of race. How might these problems be addressed when people of color hold the keys to the courthouse and the prison? What can Afrofuturists and Critical Race Theorists tell us about what is likely to be decriminalized, and what “innocent” acts will in the future be deemed criminal? Or how the criminal procedure amendments—our “code of criminal procedure”6—will be interpreted? Or about punishment, and even the abolition of prisons? This Article attempts to answer these questions.
In 1994, in an influential essay titled “Black to the Future,” the cultural critic Mark Dery introduced the term “Afrofuturism” . . . .7

What is Afrofuturism? Dery’s definition—“speculative fiction that treats African-American themes and addresses African-American concerns in the context of… technoculture”8—is not the only one. In an interview, the Afrofuturist scholar Alondra Nelson describes Afrofuturism as a way of covering discussions about race, identity, alienation, and the aspirations of the black community in a utopic future.9 Another commentator describes Afrofuturism as combining “aspects of cultural history with futurologies both fanciful and technologically grounded… pos[ing] a progressive question: What would a positive future for Africa’s citizenry and diaspora actually look like?”10 Afrofuturist scholar Ytasha Womack defines Afrofuturism as “the intersection between black culture, technology, liberation and the imagination, with some mysticism thrown in, too…. It’s a way of bridging the future and the past and essentially helping to reimagine the experience of people of colour.”11

Beyond these broad definitions melding black culture and technology, one can discern certain themes. The most important of these is the insistence that people of color in fact have a future, and a commitment to disrupting racial, sexual, and economic hierarchies and categories.

Critical Race Theory and Its Chronicles
Given census projections that by the year 2044 whites will no longer be able to claim majority status, it makes sense to include CRT in any discussion of the law in the future. After all, Critical Race Theory, more than any other legal school of thought, imagines the future in color.
Critical Race Theory *** is committed to confronting “the historical centrality and complicity of law in upholding white supremacy (and concomitant hierarchies of gender, class, and sexual orientation),”12 and transforming the relationship between law and white supremacy to reshape American jurisprudence in a project of racial emancipation and anti-subordination. CRT demonstrates a “commitment to radical critique of the law . . . and . . . radical emancipation by the law.”13 And it aims “to develop a jurisprudence that accounts for the role of racism in American law and that works toward the elimination of racism as part of a larger goal of eliminating all forms of subordination.”14
The Year 2044 and Beyond
How might policing—from what constitutes a crime, to what technologies are deployed by police, to what constitutional restraints are brought to bear on law enforcement, to what sentences and punishments are deemed appropriate—change in the year 2044 and beyond when people of color make up the majority of the country and become the country’s decisionmakers? Informed by Afrofuturism and Critical Race Theory, this Part offers an answer to that question. Before turning to the answer, however, this Part begins by imagining—and discounting—dystopian “white fears” about a future in which whites no longer wield control.
A. Black to the Future, or Fear of a Black Planet
One might assume that in the year 2044, when whites lose majority status in the United States—or more accurately, in the ensuing decade or so when people of color use their numerical advantage to secure corresponding political and economic power and social capital—whites will be relegated to the low group on the totem pole.
A dystopian future based on white anxiety is also easy to imagine on the political front, especially now, when the slogan “Make America Great Again” is often heard as “Make America White Again.”15
But in a future informed by Afrofuturism and Critical Race Theory—and more precisely, in this Afrofuturist and CRT future—many of those assumptions would be wrong. Recall that the primary concern of Critical Race Theory is eradicating subordination along all racial lines. The goal of CRT is not racial domination—it is certainly not racial comeuppance. The goal of CRT is equality, including along lines of gender, sexuality, class, and disability. Likewise, although Afrofuturists insist that black and brown individuals will survive in the future, that survival is not contingent upon the subordination of whites. Rather, Afrofuturists imagine a future free of hierarchies along the lines of race, gender, class, or sexuality.
B. Policing in the Year 2044 and Beyond
1. Societal Changes
Although predicting levels of crime is notoriously difficult, in this Afrofuturist and CRT future, it is safe to say that crime as we know it will have dropped dramatically. First, to the extent that much economic crime and even violent crime is traceable to frustrations from wealth inequality, legislation and norm building to redistribute wealth and de-fetishize unadulterated capitalism will have already removed the major incentive for much of this type of crime. After all, in this Afrofuturistic and CRT future, conspicuous consumption will be viewed as gauche and déclassé; even having nannies will be looked at as “simply not done,” especially since universal childcare will be readily available. Indeed, in this Afrofuturistic and CRT future, old magazine issues listing the fifty wealthiest Americans will be viewed with a mixture of collective embarrassment and disdain, much in the same way most people will think about the beauty pageants that once existed. Were we all suffering from plutomania?, people will occasionally ask themselves, especially when they read history books about the 1980s.
2. Technology
In addition to the societal changes discussed above, technology itself is likely to reduce crime. Indeed, extant and emergent technologies already point the way to how crime will likely be reduced. Surveillance has become commonplace, with surveillance cameras now the new normal, and jurisdictions increasingly are experimenting with surveillance drones and even “eye in the sky” technology, the latter allowing one camera to essentially conduct surveillance of an entire city. At the same time, facial recognition technology is improving, as is access to Big Data—that trail all of us have as a result of using (or being used by) social media and credit cards, streaming Netflix and surfing Google, getting traffic tickets, and simply being born.
[I]t is easy to imagine that by the year 2044 the ability to commit crime in public without detection will be close to nil. This alone will make policing more efficient in terms of deterring criminal conduct and apprehending criminals. The future may also include the widespread collection of DNA from newborn babies to further deter criminal activity and improve apprehension—this collection already being done to test for genetic abnormalities. The future may include implanting microchips (already happening to employees) in arrestees and other at-risk individuals to allow the state to trace the individuals to deter recidivism and to obviate the need for pre-trial detention.

And of course, these are just some of technologies law enforcement officers will have at their disposal. It is easy to imagine that facial recognition will soon be coupled with improvements in voice recognition and gait recognition, that improvements to terahertz scanners will soon allow officers to not only detect illegal firearms remotely, but also remotely disengage them, that dedicated short-range communications technology will obviate the need for police to conduct traffic stops, that car chases will be a thing of the past since police will be able to stop vehicles remotely using electromagnetic pulses, and that neither traffic stops nor car chases may be necessary at all given the perfection of driverless cars.

Furthermore, these technologies will also lead to a drastic reduction in the use of force by the police. Setting aside that surveillance cameras will reduce the need for the type of police-citizen interactions that too often function as pathways to blue on black violence,16 the use of terahertz scanners could “immediately tell officers that a suspect is unarmed . . . obviat[ing] the need for deadly force.”17 Access to Big Data would also tell officers whether a suspect has a history of nonviolence or escalation, further reducing the need to draw a weapon or use force.18 Future technologies will likely enable police to remotely disable weapons, reducing the need for deadly force. And of course, for those at-risk individuals and individuals on pre-trial release who already have temporary microchips implanted, the chips themselves can be disabling in a way to make the use of force unnecessary.

For many individuals, and perhaps most whites, this future may seem dystopian, suggesting “the death of privacy”19 and George Orwell’s “Big Brother” run amok. But this is where Afrofuturism, Critical Race Theory, and changing demographics come in. A core tenet of Afrofuturism is that we embrace technology, especially technology that can disrupt hierarchies and contribute a public good. Critical Race Theory’s commitment to substantive equality and to radical interventions provides further support for the conclusion that, in a majority-minority future, technology will be put to good use. For starters, such technology will reduce crime, something people of color have disproportionately experienced as victims. Second, it will aid in the apprehension of lawbreakers, thus ending the under-enforcement that currently exists in black and brown communities. Third, it will deracialize policing, long a concern among CRT scholars, and reduce the concomitant “micro-aggressions” black and brown individuals are subjected to as a result of such policing.20 After all, cameras and terahertz scanners—absent human intervention—do not suffer from the unconscious racism or implicit biases Critical Race Theorists have written about.

There are two more reasons why an Afrofuturism and CRT-informed future is likely to embrace surveillance technology in particular; reasons that have everything to do with the role surveillance has played in the lives of black and brown people. At a time when blue on black police violence seems constant—from Michael Brown, to Eric Garner, to Sandra Bland, to Philando Castillo, to Tamir Rice21—and at a time when whites calling the police on black and brown people for simply engaging in routine activities seems an everyday occurrence, surveillance cameras have functioned as a tool of survival, as a way of making racism and inequality real, as a godsend, and as proof.22 The latter point is especially significant, given this country’s history of not permitting people of color to testify against whites, and the subsequent history of not believing them when they did.23 It is why the CRT scholar Lolita Buckner Innis describes a camera as equivalent to a “white witness.”24 Thus, while whites may think of the increase in surveillance cameras as intrusive, for many people of color, cameras function as necessary proof.

The other reason black and brown individuals are likely to embrace mass surveillance is because it will be a welcome change from the race-based surveillance, or “racial tax,”25 that comes with being black or brown in this country. Right now, “black and brown folk are more likely to be watched by the police, stopped by the police, and frisked by the police.”26 Black and brown people are treated as “panoptic sort,”27 “always already suspect,”28 and routinely subjected to “heightened scrutiny,”29 to repurpose a legal term. At the same time, white Americans enjoy a surfeit of privacy. The CRT scholar Cheryl Harris famously noted how whiteness itself is like property: valuable.30 What she left out is that part of its value lies in the right to claim privacy, to even take entitlement to privacy for granted, as a “right.” Put differently, the oft-claimed “right to privacy”31 and “right to be let alone”32 has never been distributed equally.33 For black and brown people, race-neutral surveillance—what I have elsewhere called “soft surveillance”34 and Mary Anne Franks calls “democratic surveillance”35—also has the added benefit of equalizing privacy.

3. Policing
Thus far, I have discussed how advances in policing technologies consistent with Afrofuturism and CRT will do much to reduce crime, as will wealth redistribution and the expansion of the social safety net that is likely to occur when people of color exercise majority control. Still, even with these changes, some crime will persist, necessitating some form of policing. However, what police departments will look like and how they will police crimes will likely be very different. Consider the size of police departments. As the foregoing discussion of technologies might already suggest, by the year 2044, technology will make much police work as we know it unnecessary, resulting in far smaller police departments. In addition, consistent with changes in demographics, most of the police officers that remain will likely be people of color, including at leadership levels. Indeed, in a future informed by Afrofuturism and Critical Race Theory, the racial makeup of rank and file officers will not be the only demographic change. Given Afrofuturism’s and CRT’s commitment to disrupting hierarchies not only along lines of race, but also along lines of gender, class, and sexuality, police departments will more likely reflect the full range of the country’s diversity.

These demographic changes are also likely to impact police-citizen interactions. The widespread addition of women and people of different sexualities, for example, will reduce the likelihood of “masculinity contest[s].”36 Changes in police training will also likely impact police-citizen interactions. For starters, a future informed by Afrofuturism and CRT is likely to insist that police training emphasize the caretaking role of policing, and to insist that recruits are screened for both explicit and implicit biases and undergo empathy training in the form of virtual reality simulations—more advanced but not unlike the virtual reality (VR) simulations that now exists in laboratories at Stanford and Barcelona. Such VR training will allow officers to “experience” being different—for example, male or female, gay or straight or questioning or trans, documented or undocumented, white or Asian or black or Latino, Muslim or Christian—and having to interact with the police.

In addition, the criminal procedure protections afforded individuals will be different, impacting not only citizen-police interactions but also prosecutions themselves. In a future informed by Afrofuturism and CRT, the Supreme Court, as well as lower courts, are more likely to reflect the full diversity of the population along a variety of lines, including race, sex, class, and disability. In this future, a diverse Supreme Court—now led by Chief Justice Sonia Sotomayor—will likely hew to precedent allowing nontargeted surveillance in public. However, rather than solely relying on the notion that there can be no expectation of privacy for what is knowingly exposed in public, they will likely add an additional justification for allowing this practice: Such surveillance reduces unequal policing and thus furthers the goal of equality, now incorporated in the Fourth Amendment.37 In short, it will be a technology-friendly Court. By the same token, the Court is likely to shift their interpretation of the Fourth Amendment when it comes to more routine police-citizen encounters. As just mentioned, the overarching goals of equality and nondiscrimination will likely be read into the Fourth Amendment, in particular its reasonableness clause. Moreover, rejecting the approach of the current Court, which insists that rights can be waived voluntarily even if unknowingly,38 the future Court is likely to insist that all citizens be informed of their rights, even the right to say no and walk away.39 And a Court informed by CRT is certainly likely to curtail the ability of officers and noncriminal justice actors to use “arrest as regulation”40 and curtail the discretion officers currently enjoy. *** For the same reason, the Court will likely revive the preference that warrants be secured from neutral and detached magistrates,41 especially since technology itself will eliminate the need for many of the current exceptions to the warrant requirement.42 As far as prosecutions, what few trials are necessary will not quite be “trial by machine,”43 but they may approximate it, since this too will eliminate the biases that tend to permeate trials in the present, including prosecutorial biases,44 even in the face of seemingly neutral Rules of Evidence and other protections.45

Up to now, I have argued that crime will be reduced, but I have said little about the types of crimes that might persist. This is in part because technological interventions and shifts in norms will likely play a role in reducing the frequency of certain crimes. For example, the widespread availability of sex robots, the legalization of sex work, the move towards positive sex norms (a feature of CRT and Afrofuturism) and most importantly the norm of sex equality and respect will likely contribute to the reduction of sexual assault crimes. Domestic violence is likely to see a similar reduction, given that gender equality and parity will be standard in a future informed by Afrofuturism and CRT, as will the availability of housing and employment, thus facilitating the ease with which individuals can enter and exit unwanted relationships. Gun violence will also have declined. Black and brown leaders, recalling firsthand the scourge of gun violence in the 1990s and persisting for decades, will have long enacted gun control legislation barring the possession of firearms outside the home, and will support technology to detect, disable, and confiscate such weapons outside of the home. And of course, since wealth will be more evenly distributed, and since displays of wealth will be frowned upon—keeping up with the Joneses, and the fascination with “bling” will be viewed as a curious relic of the 1980s culture and hip-hop—there will be far fewer property crimes. *** [G]reed will be perplexing. Corporate fraud will also be rarer; the power of multinational corporations long ago would have been put in check.

But there is another reason I have said little until now about crimes in the year 2044 and beyond, and that is because in a future informed by Afrofuturism and Critical Race Theory, what behavior is considered criminal will likely be far different. People of color, recognizing that defining criminal behavior has always been raced and classed, are likely to revisit a whole range of current crimes. Not only will marijuana be legal, but other recreational drugs—absent reasonable risk of harm to the public—will be decriminalized as well. *** More importantly, a future informed by Afrofuturism and Critical Race Theory is likely to de-criminalize a wide swath of what are currently known as “quality of life” crimes, since as CRT scholars have pointed out, those “crimes”—from loitering laws to curfew laws (both of which recall Black Codes46 with merely the word “black” removed)—primarily exist to enable, through the veneer of discretion, the police to maintain hierarchies by targeting outgroups along lines of race, gender, and sexuality. An Afrofuturist and CRT future is also likely to decriminalize a number of malum prohibitum crimes—such as cutting hair without a license,47 or selling “loosies”48—as best addressed through norms. In other words, a future informed by Afrofuturism and CRT will recognize that sometimes it makes sense “to keep the law at bay.”49

While these are some of the current “crimes” that are likely to be decriminalized in the year 2044 and beyond, other behavior currently deemed outside the purview of criminal law will promptly be brought within its ambit. Mere “words,” when grounded in hate, in some instances will be criminalized, and will certainly be sufficient for permitting the responsive use of non-deadly force. Discrimination on the basis of race, sex, national origin, religion, sexuality, or disability—i.e., following a customer in a store because of race, paying an employee less because of sex, banning a passenger from a flight because of perceived national origin or religion—will not only be actionable civilly, but also subject to criminal prosecution. Finally, in a future informed by Afrofuturism and Critical Race Theory, punishment will be handled differently. Even now, there are few black or brown individuals who have been untouched by this country’s race to incarcerate, or who do not know firsthand that imprisonment comes with weighty collateral consequences. Afrofuturists, as utilitarians, will ensure that punishment, when imposed, serves a public good that exceeds its cost.50 There will be algorithmic sentencing, but it will be individually tailored. For example, someone who violates the law by engaging in an economic crime—all the more offensive given wealth redistribution and the norm against excessive wealth—might have most of his assets forfeited. An individual who engages in the relatively rare crime of violence—a “heat of passion” killing, for example—might be punished, but the core of that punishment will likely be treatment and therapy to work through anger issues, as well as restorative justice, perhaps in the form of sessions with survivors of the victim. Moreover, while prisons—long known to be criminogenic, essentially finishing schools for criminals—will not necessarily be abolished, they will be a last resort. This is because a future informed by CRT and Afrofuturism “would recognize that ‘punishment’ does not follow from ‘crime’ in the neat and logical sequence offered by discourses that insist on the justice of imprisonment.”51 Perhaps most importantly, no matter what form the sentence takes, judges will always ask: Is society better off—society meaning everyone; law-abiders and lawbreakers alike—if the defendant receives this particular type of sentence, or not? And the goal of rehabilitation, or rather welcoming back into the fold, will always be the prime directive. *** Perhaps, needless to say, given the prime directive of rehabilitation, criminal records will be routinely expunged upon sentence completion. And perhaps, needless to say, the practice of imposing collateral punishments, something CRT scholars have long opposed, will be retired.

Lastly, any discussion of punishment in the year 2044 and beyond, when black and brown people have political and economic power to match their numerical numbers, would be incomplete without some mention of capital punishment, which several CRT scholars argue exists in the present solely because of race. Suffice it to say that black and brown legislators, knowing from numerous studies that capital punishment has always been tainted by racial discrimination and discrimination against other outgroups, and recognizing that the death penalty might one day be tainted against whites who by 2044 are a minority, will take steps to ensure the abolishment of the death penalty. The Supreme Court will also be eager for the right case to come along so that they can reverse their decision in McCleskey v. Kemp,52 which turned a blind eye to race-based punishment. In his dissent, Justice Brennan referred to “a fear of too much justice.53 The public will be eager to see who abolishes the death penalty first: legislators or the Court.

The ambition of this Article has been to imagine policing in the year 2044 and beyond when whites are no longer a majority in this country; black and brown people are. But it has not just imagined any black and brown future. It has imagined a future informed by Afrofuturism and Critical Race Theory.

To be sure, important questions remain. How do we prepare for this brown and black future? Or more specifically, how do we prepare for policing in the year 2044 and beyond? And how do we make sure a black and brown America does not simply replicate the inequality in policing that exists now? *** [H]ow do we ensure a vision that, consistent with Afrofuturism and CRT, aspires to “make America what America must become”54—“fair, egalitarian, responsive to needs of all of its citizens, and truly democratic in all respects, including its policing”?55 The answer I offer may seem inadequate to some, but it is the only honest answer: This Article offers a vision of the future. ***

1See Mark Dery, Black to the Future: Interviews with Samuel R. Delany, Greg Tate, and Tricia Rose, in Flame Wars: The Discourse of Cyberculture 179, 180 (Mark Dery ed., 1994).
2Derrick Bell, The Space Traders, in Faces at the Bottom of the Well: The Permanence of Racism 158 (1992).
3For a discussion of Derrick Bell’s influence on Critical Race Theory (CRT), see Patricia Williams, Tribute to Derrick Bell, 69 N.Y.U. Ann. Surv. Am. L. 7 (2013).
4See, e.g., I. Bennett Capers, Crime, Surveillance, and Communities, 40 Fordham Urb. L.J. 959 (2013)[hereinafter Capers, Crime, Surveillance, and Communities]; Bennett Capers, Policing, Technology, and Doctrinal Assists, 69 Fla. L. Rev. 723 (2017) [hereinafter Capers, Policing, Technology, and Doctrinal Assists]; I. Bennett Capers, Essay, Race, Policing, and Technology, 95 N.C. L. Rev. 1241 (2017) [hereinafter Capers, Race, Policing, and Technology]; I. Bennett Capers, Techno-Policing, 15 Ohio St. J. Crim. L. 495 (2018) [hereinafter Capers, Techno-Policing].
5See generally Cornel West, Race Matters (2d ed. 2001); see also W.E.B. Du Bois, Of the Dawn of Freedom, in The Souls of Black Folk 8, 8 (Henry Louis Gates, Jr. ed., 2007) (“The problem of the twentieth century is the problem of the color-line . . . .”).
6Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 929 (1965).
7Dery, supra note 1, at 180.
9Soho Rep., Afrofuturism, Youtube (Nov. 30, 2010), https://www.youtube.com/watch?v=IFhEjaal5js.
10Amah-Rose McKnight-Abrams, The New Afrofuturism, Vice: Garage (Feb. 9, 2018, 12:08 PM), https://garage.vice.com/en_us/article/437wq3/the-new-afrofuturism.
11Lanre Bakare, Afrofuturism Takes Flight: From Sun Ra to Janelle Monáe, Guardian Aug. 7, 2014, 1:00 PM), https://www.theguardian.com/music/2014/jul/24/space-is-the-place-flying-lotus-janelle-monae-afrofuturism (quoting Womack).
12Cornel West, Foreword to Critical Race Theory, supra note 14, at xi, xi.
13Derrick A. Bell, Who’s Afraid of Critical Race Theory?, 1995 U. Ill. L. Rev. 893, 899.
14Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329, 1331 n.7 (1991).
15See, e.g., Eugene Robinson, Trump Can’t Make America White Again, Wash. Post (July 5, 2018), https://www.washingtonpost.com/opinions/try-as-he-might-trump-cant-make-america-white-again/2018/07/05/0634e02e-8088-11e8-b0ef-fffcabeff946_story.html (arguing that racism is an active part of the Trump Administration’s public messaging).
16See Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 130 (2017) (arguing that many examples of police’s deadly use of force begin as ordinary citizen-officer interactions such as traffic stops).
17Capers, Race, Policing, and Technology, supra note 4, at 1279.
19See, e.g., A. Michael Froomkin, The Death of Privacy?, 52 Stan. L. Rev. 1461 (2000).
20I borrow this term from CRT scholar Peggy Davis, who uses it to describe the ways in which minorities are repeatedly subjected to “stunning, automatic acts of disregard” that in turn lead minorities to view the legal system as biased. See Peggy C. Davis, Law as Microaggression, 98 Yale L.J. 1559, 1576 (1989).
21For a discussion of these victims of police violence, see I. Bennett Capers, Essay, Criminal Procedure and the Good Citizen, 118 Colum. L. Rev. 653, 686–87 (2018).
22Capers, Race, Policing, and Technology, supra note 4, at 1246 (arguing that the recent widespread availability of video images of police violence has functioned as “an education” for many Americans, making claims of police violence true).
23See I. Bennett Capers, Evidence Without Rules, 94 Notre Dame L. Rev. 876, 889-92 (2018).
24Lolita Buckner Inniss, Video Surveillance As White Witness, Ain’t I a Feminist Legal Scholar Too? (Sept. 30, 2012), http://innissfls.blogspot.com/2012/09/video-surveillance-as-white-witnesses.html (“[P]rivate people often lose in battles of opposing narratives with public people about what has occurred. In such cases, video surveillance becomes a mostly neutral, unlikely to lie, legitimizing witness.”).
25Randall Kennedy, Race, Crime, and the Law 159 (1997).
26Capers, Race, Policing, and Technology, supra note 4, at 1290.
27This is a play on Oscar Gandy’s term about database marketing. See generally Oscar H. Gandy, Jr., The Panoptic Sort: A Political Economy of Personal Information 1 (1993) (describing how businesses and the state use surveillance technology in order to monitor individuals, develop profiles, and sort individuals by presumed economic or political value).
28Frank Rudy Cooper, Always Already Suspect: Revising Vulnerability Theory, 93 N.C. L. Rev. 1339, 1363 (2015) (observing that “when it comes to men of color, we are always already suspect”).
29Capers, Race, Policing, and Technology, supra note 4, at 1290.
30Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1713–14 (1993).
31See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (defining and arguing for a right to privacy).
32See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (describing the Fourth Amendment as conferring, “as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men”).
33See Khiara M. Bridges, The Poverty of Privacy Rights 45–55 (2017) (arguing that the law deprives poor mothers, especially poor mothers of color, of privacy rights altogether).
34Capers, Race, Policing, and Technology, supra note 4,, at 1244.
35Mary Anne Franks, Democratic Surveillance, 30 Harv. J.L. & Tech. 425, 488 (2017) (arguing that the rise of mass surveillance democratizes surveillance and serves as an opportunity for mainstream society to recognize the historical surveillance of marginalized groups).
36See Frank Rudy Cooper, “Who’s the Man?”: Masculinities Studies, Terry Stops, and Police Training, 18 Colum. J. Gender & L. 674-75 (2009).
37See I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 35–37 (2011).
38See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (ruling that consent to a search need not be knowing).
39See Capers, supra note 21, at 708–09.
40See generally Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809 (2015) (discussing how a host of actors—including public housing officials—rely on arrests as a regulatory tool).
41See Cynthia Lee, Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness Analysis, 81 Miss. L.J. 1133, 1136 (2012) (arguing that ideally the Court would “return to a robust embrace of the warrant preference”).
42See Capers, Policing, Technology, and Doctrinal Assists, supra note 17, at 730–33.
43See Andrea Roth, Trial by Machine, 104 Geo. L.J. 1245, 1248 (2016) (discussing the potential benefits of “mechanized” adjudication).
44See Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 Fordham L. Rev. 13, 16–17 (1998) (“[B]ecause prosecutors play such a dominant and commanding role in the criminal justice system through the exercise of broad, unchecked discretion, their role in the complexities of racial inequality in the criminal process is inextricable and profound.”).
45See Capers, supra note 32 (discussing the importance of recognizing the impact of unregulated “evidence,” such as race, in trial outcomes).
46Confederate states responded to losing the Civil War by enacting Black Codes—creating crimes like “vagrancy” that could be used against the newly freed blacks—which in turn facilitated a type of re-enslavement: incarceration and convict leasing. For more on the Black Codes, see Edward McPherson, The Political History of the United States of America During the Period of Reconstruction 29–44 De Capo Press 1972) (1875); see also Rhonda V. Magee, Note, The Master’s Tools, From the Bottom Up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863, 895 (1993) (discussing the proliferation of Black Codes following Reconstruction and how they “secured a system of feudal peonage”); Gary Stewart, Note, Black Codes and Broken Windows: The Legacy of Racial Hegemony in Anti-Gang Civil Injunctions, 107 Yale L.J. 2249, 2257–63 (1998) (discussing the history of Black Codes and their continuing legacy through vagrancy and other laws).
47Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Identification, 65 S. Cal. L. Rev. 1769, 1799–80 (1992).
48Individual cigarettes are often referred to as “loosies.” The reference to selling loosies is deliberate. It was in attempting to arrest Eric Garner for selling loosies that officers placed him in a chokehold, and held him in a chokehold even as he managed to say, “I can’t breathe.” Garner died as a result of asphyxiation. See Susanna Capelouto, Eric Garner: The Haunting Last Words of a Dying Man, CNN (Dec. 8, 2014, 7:31 PM), https://www.cnn.com/2014/12/04/us/garner-last-words/index.html.
49Austin, supra note 49, at 1808 (rejecting the argument that the state should assist the informal economy in black communities and advocating that the government not regulate informal economic activity at all).
50Paul Butler has written persuasively about a hip-hop theory of punishment that blends elements of retribution with utilitarianism. See Paul Butler, Much Respect: Toward a Hip-Hop Theory of Punishment, 56 Stan. L. Rev. 983 (2004). However, in this future informed by Afrofuturism and CRT, any theory involving retribution will have for the most part fallen out of favor.
51Angela Y. Davis, Are Prisons Obsolete? 112 (2003).
52481 U.S. 279 (1987). In McCleskey, the Court accepted as true a longitudinal study that concluded that defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing black victims, even after taking into account 39 nonracial variables. Id. at 297. However, the Court declined to disturb the imposition of the death penalty against McCleskey, or indeed the death penalty system itself. Id. at 308.
53Id. at 339 (Brennan, J., dissenting) (responding to the majority’s fear that redressing racial disparities would open the door to claims of other types of discrimination, such as sex, which Justice Brennan described as “a fear of too much justice”).
54James Baldwin, The Fire Next Time 24 (1963) (“[G]reat men have done great things here, and will again, and we can make America what America must become.”).
55I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835, 880 (2008).
Scholarship of Note
Against Prosecutors, 105 Cornell Law Review (forthcoming 2020)

Afrofuturism, Critical Race Theory, and Policing in the Year 2044, 94 NYU Law Review 1 (2019)

Evidence Without Rules, 94 Notre Dame Law Review 867 (2018)

Criminal Procedure and the Good Citizen, 118 Columbia Law Review 653 (2018)

Race, Policing, and Technology, 95 North Carolina Law Review 1241 (2017)

Unsexing the Fourth Amendment, 48 U.C. Davis Law Review 101 (2015)