CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, May 7, 2014

Bailey on The War on Crime, Privacy, and the State

Bailey_KimberlyKimberly Bailey (Chicago-Kent College of Law) has posted Watching Me: The War on Crime, Privacy, and the State (University of California, Davis, Vol. 47, 2014 Forthcoming) on SSRN. Here is the abstract:

The war on crime exemplifies how the deprivation of privacy makes one vulnerable to oppressive state social control. Scholars have severely criticized the war on crime’s subordinating effects on poor urban people of color. The role that privacy deprivation plays in this subordination, however, has been under-theorized. This Article takes an initial step in addressing this gap in the literature. It argues that one important reason why the war on crime is so abusive is because it oppressively invades individuals’ privacy; poor people of color have limited opportunities in the creation of their life plans, participation in mainstream political discourse, and access to social capital in part because they have limited privacy. These privacy invasions also have an expressive aspect because they send the message that the state does not trust these individuals to engage in valued activities in legitimate ways; therefore, they must constantly be watched. As a result, the deprivation of privacy also results in serious dignitary harms.

This Article further argues that current criminal justice policies cannot even be justified on utilitarian grounds. Indeed, the privacy invasions this Article describes contribute to counterproductive criminal justice policies. While this Article focuses on poor people of color, it cautions that they are the canary in the mine. Whites are also currently experiencing serious privacy invasions in the form of mass surveillance and DNA collection. The practices of harsh sentencing and overcharging are making them even more vulnerable to further privacy invasions. The truth is that for all Americans, criminal justice policies are steadily minimizing the line between the individual and the state.

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