Above: Detainee locked with a GPS monitoring bracelet
“Whatever share of responsibility that Biden may own for the growth in prison populations over the next decade or more, he should be praised for his central role in pushing legislation that saved thousands of lives…The streets of American cities are much safer today than a quarter-century ago before wide-ranging changes in federal crime control policy were enacted.”
– James A. Fox, Professor of Criminology at Northeastern University, member of USA Today‘s Board of Contributors
“Any radical thought always adopts the most extreme position of desperation.” – Giorgio Agamben
As I write this, people are dying in prison. Intensive care units are strained to breaking. Workers are being forced to risk their lives in unsafe conditions. Adults are losing their elders, and parents, mostly black and brown, are losing their children.
I live in a working-class neighborhood in New York City in the year of Covid-19. I ought to have something better to think about than an Italian philosopher.
In February a then-celebrated (now-despised) political thinker named Giorgio Agamben made a provocative, seemingly idiotic assertion. He regarded the Italian government and media’s response to the coronavirus to be an “irrational…state of panic” because it mandated “a state of exception with serious limitations on movement and a suspension of daily life in entire regions.” Agamben’s previously-developed concept of “the state of exception” describes a seizure of oppressive control by executive authorities under the cloak of public emergency. The state’s power-grab reaches into the basic components life, operating on the level of biopolitics.
Rebuttals from other theorists were published immediately. In the US, the most prominent criticism came from Anastasia Berg, a philosopher writing in The Chronicle of Higher Education. Berg passed moral judgements on Agamben, as well as aesthetic ones for his “outdated jargon”, but underlying it all was an empirical argument, which she returned to again and again. The Italian thinker was accused of not caring about the “empirical situation” and “deploying the heavy theoretical machinery [without having] looked around” at any data. Most outrageous was Agamben’s comparison of Covid with influenza, because “even under the most conservative of estimates, coronavirus’s fatality rate is 10 times greater than that of the common flu — 1 percent to the common flu’s 0.1 percent.”
I am not a medical expert, but then neither Berg. The main difference between us is that I view empiricism as something more than a cudgel to beat dissidents over the head with. That is, I feel obligated to get my facts straight, a burden that people defending a dominant narrative seldom take on these days.
Berg wrote that she “turned to Agamben to get away from facts.” This is bad faith, however—Berg didn’t expect to get away from material claims, just to have the ones she’d already heard in the media woven into a moral theory. Fact-checking Agamben is one of her main concerns. So let us review Berg’s foremost empirical claim, that the novel coronavirus (also known as SARS-CoV-2, or Covid-19) is at least “10 times more deadly than the common flu.”
On February 28, two days after Agamben published his comments, The New England Journal of Medicine published an editorial entitled “Covid-19—Navigating the Uncharted.” According to NEJM,
“If one assumes that the number of asymptomatic or minimally symptomatic cases is several times as high as the number of reported cases, the case fatality rate may be considerably less than 1%. This suggests that the overall clinical consequences of Covid-19 may ultimately be more akin to those of a severe seasonal influenza (which has a case fatality rate of approximately 0.1%) or a pandemic influenza (similar to those in 1957 and 1968) rather than a disease similar to SARS or MERS, which have had case fatality rates of 9 to 10% and 36%, respectively.”
The lead author of this article was Dr. Anthony S. Fauci, best known as the director of the National Institute of Allergies and Infectious Diseases.
In a time of dramatic and terrifying human loss, it may seem odd to dwell on dry numbers and intellectual disputes. The truth is the Agamben controversy evokes life and death questions around trust, paranoia, power, autonomy, dignity, safety, exploitation, and trauma. But I begin with statistics, because that’s the only way to navigate a terrain this vast. Ironic and iconic anecdotes—whether its Boris Johnson’s collapse in the ICU or the full recovery of a 100-year old Iranian woman from the virus—don’t help us much. In order to weigh risks and trace out a path, we have to look critically at data and read beyond headlines. This is exactly what Berg and other critics of Agamben have not done. The empirical errors and exaggerations in her piece, and the fact that it appeared in a respected publication like The Chronicle, are an indication that panic is warping the way many of us perceive the world.
Some things have changed since Dr. Fauci’s NEJM article, and some things haven’t. Today in April 2020 no epidemiologist considers Covid-19 to be comparable to MERS, and a global case fatality rate of 36% is universally dismissed as madness. The possibility that “the case fatality rate may be considerably less than 1%,” however, remains wide open. This doesn’t mean Covid 19 is “just like flu” (which isn’t what Agamben is saying anyway) but it does make it comparable to the above-mentioned pandemics of 1957 and 1968. Neither one of those caused national shutdowns, even though they killed over one million people each. This is what Agamben means when he writes that “There have been more serious epidemics in the past, but no one ever thought for that reason to declare a state of emergency like the current one, which prevents us even from moving.”
Perhaps we simply live in a kinder time than 1968. Perhaps neoliberals like Steven Pinker are correct that our civilization cherishes life more with every single year, but I have my doubts. The liberal establishment’s advocacy for lockdowns is perceived as a variation on the “precautionary principle”: if there is even a slight chance that an action could cause social harm, then it must be suppressed. But the contradiction is clear: this is a society which rejects the precautionary principle across the board. It accepts—no, embraces—the danger of cars, alcohol, deforestation, factory farms, fossil fuels, and even cuts to healthcare itself.
Something is fundamentally odd—and fundamentally unjust—about this deviation in politics. It may simply be that governments’ emergency responses are determined by the rich and old, and their personal concerns are elevated above all else. The 2009 pandemic (H1N1 flu) killed more American children, mostly poor and black ones, than Covid-19 has, but those children did not concern the rulers of our society much. Lockdown was never considered. It was only when wealthy boomers like Tom Hanks started to catch a disease that society was forced to a screeching halt.
And just as the concern is not universal, the effects are not equal. Millionaire celebrities cavort with their exotic pets while unemployed shut-ins (the number of whom grow everyday) slowly go mad with despair. Billionaires shelter on their yachts while poor women are locked up with their abusers (in some cases their killers). In NYC, the outcome of lockdown doctrine is a world where Black and brown children are not allowed to play together in city parks, but millions of whites in the same cities enjoy the socially distant outdoor activities of jogging and skateboarding. That social distancing favors the middle-class tendency towards atomization, and the fully mediated existence of surveillance capitalism, seems disturbingly convenient. Agoraphobia becomes a way of life, a sadly necessary one, we are told.
It’s easy to ridicule people who complain about feeling like they’re in prison during the lockdown, particularly millionaires with mansions and private limousines. But Bomani Shakur, a New Afrikan political prisoner on death row, doesn’t find the comparison inappropriate for working-class people in crowded dwellings. “People have been asking me questions ever since this ‘shelter in place,’ with people having to stay home,” wrote Bomani this month.
“It’s somewhat similar I suppose to being in solitary confinement, even though you might be with family and whatnot. Being in solitary confinement is really just being thrown upon yourself…My cell has a bookshelf with three shelves, and there’s a table to sit and write. I have a lot of music, books to read.”
The prisoner warns that, even with distractions and stimulation, many people suffer monumental psychic damage from being confined inside. “I’ve watched quite a few people fall apart, lose their minds.” Still, his biggest concern is that the prison will exploit the crisis to remove the few rights he still has. “I realize there’s a pandemic, so I’m all for suspending visits temporarily. My fear is that after this is said and done, they will use this as an excuse to extend the no-visit policy.”
The government weaponizing the trauma of bereaved families—and their desperate desire for protection from further loss—in order to oppress vulnerable people is not a paranoid fantasy. New York has been here before in the aftermath of 9-11. Right-wingers claim to this day that the draconian and racialized measures which 9-11 hysteria introduced were justified to protect us from another attack that could kill thousands of Americans (the anthrax attacks were continuing in 2002 during the passage of the Patriot Act) In retrospect, most New Yorkers consider that lockdown on liberties to be repressive overreach that damaged society. Indeed, the creation of one of today’s most despised institutions, the Immigration and Customs Enforcement agency (ICE) was excused with the rationale that it was saving us from another mass casualty event. In 2002, who could have proven they were wrong?
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“Rational authority not only permits but requires constant scrutiny and criticism of those subjected to it; it is always temporary, its acceptance depending on its performance.”
– Erich Fromm
Apprehension about the relationship between threat perception and social control doesn’t emerge from a “conspiratorial view of history” so much as a historical view of conspiracies. Whatever one thinks of 9-11 and the anthrax attacks, we can agree that the Iraqi government was not responsible for them, yet media sensationalism, state disinformation, and public panic led the American masses to believe that Saddam was complicit. Mendacity about disarmament and a “grateful, democratic Iraq” was even more craven and widely accepted—accepted by Democratic leaders, by respected newspapers, and most of all by The Recognized Experts. Donald Trump did not invent fake news, and he does not have a monopoly on it.
Anyone who has followed the Bernie Sanders, Jeremy Corbyn, or Evo Morales election campaigns knows that there is no more truth being told at CNN and The New York Times than there is at Fox News and The Wall Street Journal—and scarcely fewer lies are told in The Guardian and Mother Jones. Ask Joe Biden’s apparent rape victim Tara Reade about the fairness and wisdom of respectable media. (Where the truth is broadcast about Biden it’s usually by right-wing media, however hypocritical they may be.) The fact that the Times and CNN now, belatedly, report on climate change and white supremacy doesn’t help us when they also undermine people who may be able to stop these things, and prop up people like Biden who perpetuate them.
In a competitive clickbait media system, it is even possible to distort factors in the NYC disaster. In early April, headlines across the world screamed that New York had a new program of digging mass graves on the city-owned Hart Island in response to coronavirus. On April 12, however, The Guardian acknowledged that the city had been interring hundreds of thousands of unclaimed bodies in that way for decades. In the ninth paragraph (!) of the article, we learn that a recent surge in the number of bodies is not directly due to Covid-19 deaths, but “can be attributed, at least in part, to New York City cutting the amount of time a body can remain unclaimed…The new 14-day rule was a quietly introduced switch from the previous practice, which gave families or friends 30 days to claim a body. The footage from Hart Island shocked many, but for this little island it was just the latest chapter in a long, sad history.”
Such sloppy reporting has led some genuine paranoids to dismiss the entire epidemic as a “hoax.” I doubt they would want to defend that theory to Lloyd Torres, a Bronx man who lost both his mother and his brother to coronavirus within 24 hours. Yet it’s no less deluded to dismiss those who agree with Fauci’s original assessment that “the overall clinical consequences of Covid-19 may ultimately be more akin to those of a severe seasonal influenza (which has a case fatality rate of approximately 0.1%) or a pandemic influenza (similar to those in 1957 and 1968).” A similar finding was made by one of the first peer-reviewed studies on the virus, as well as a more recent study by a Stanford University team. Facts countering the apocalyptic narrative emerge regularly, but are scarcely reported. The lead author of a major University of Bonn virological study on Covid-19 goes so far as to say that its contagion is misunderstood: “There is no significant risk of catching the disease when you go shopping. Severe outbreaks of the infection were always a result of people being closer together over a longer period of time.”
The BBC nonetheless asks incredulously why so many “intelligent people” believe that the SARS-CoV-2 crisis might be exaggerated. It may be because these people read the BBC’s own science reports. An April 1st BBC Future story quotes Oxford epidemiologist Carl Heneghan explaining that,
“During an epidemic, doctors are more likely to attribute a death with complex causes as being caused by the disease in question – a trait known as ascertainment bias.
“We know, during an epidemic, people will call every death as though it’s related to Covid-19. But that is not the case,” says Heneghan. “Always, when people look back at the case notes and assign causation, they realise they will have overestimated the case fatality in relation to the disease.”
The reason for the bias is that “there’s a tendency to focus on the worst-case scenario”, says Heneghan. “That’s the only message that gets out there.”
One example is the H1N1 pandemic of 2009, known as swine flu. Early case fatality rate estimates were inflated by a factor of more than 10. Even 10 weeks into the epidemic, estimates varied widely between countries, coming in between 0.1% and 5.1%. When medics later had a chance to go through case documents and evaluate cases, the actual H1N1 case death rate was far lower, at 0.02%…As time goes on, the estimate of the Covid-19 death rate is likely to improve, as clinicians are eventually able to go through case notes and tease out the tangle of factors that contributed to each Covid-19 patient’s death.”
(This would not be the first time that new organizations’ reporting on the virus contradicted their opinion writers. The Washington Post generally leans towards worst-case scenarios in its Covid-19 coverage, but on March 16th, they encouraged the public to gather at the polls for the Democratic primaries. In the following two days, the Post published two different opinion pieces condemning Ohio’s state government for postponing its primary because of health concerns.)
Despite the empirical weight behind it, this concern about an overcount is seldom featured in the American press. Instead it’s become common to see headlines claiming that NYC is undercounting, which has led to a policy change: The city is now immediately labeling all ambiguous deaths of the elderly as Covid-19 without testing them. Automatic and untested classification has never been used previously for a virus in New York, including for seasonal influenza. This means flu deaths of past years have also been “undercounted” locally.
Besides the danger of ascertainment bias noted by Oxford’s Dr. Heneghan, one should also consider the reliability of those who conceived this creative accounting policy. It appears to be the brainchild of Councilman Mark Levine, chair of the council health committee and a man of dubious credibility in these matters. Levine recently made headlines when he erroneously tweeted out that the mayor was initiating the temporary burial of Covid-19 casualties in New York City parks. A USA Today factcheck a few days later rated his claim as “false,” and reported that the councilman had deleted his tweet and made a formal retraction. “Although burials at the Hart Island public cemetery have increased, these graves are for individuals whose families haven’t claimed their bodies for private funerals after 14 days,” reported the news organization. “The city’s medical examiner’s office does not anticipate requiring temporary graves.” (Levine has a history of reckless claims which isn’t even very consistent: On February 9th, for instance, the councilman dismissed the epidemic as the “coronavirus scare.”) Agamben’s view of Covid-19 response, that “in a vicious circle, the limitations of freedom imposed by governments are accepted in the name of a desire for safety that was created by the same governments that are now intervening to satisfy it,” seems borne out by events.
Sadly, much US discourse around the virus is little more than partisan hackery, premised on the wisdom of liberals and the absolute fallaciousness of those who doubt them. Of course, the demented racism, avarice and superstition of most Republicans is undeniable, but there is grave danger in the presumption that Democrats are trustworthy protectors of the public. In reality it was a mainstream liberal autocrat named Andrew Cuomo who spent the years leading up to this crisis closing major hospitals, blocking prison reform, gutting public housing, and cutting Medicaid even as hundreds of poor and Black people were repeatedly infected with Legionnaire’s Disease in the Bronx. Trust in liberal wisdom kills people, particularly the most vulnerable. There are no good captains steering this ship. We will have to be our own navigators.
In recent weeks, leaders of the far-right have challenged the national lockdown in the name of “liberty.” It’s easy to be cynical about such claims, even aside from the unsavory characters involved. Afterall, in the US, the rhetoric of liberty and freedom have become almost synonymous with capitalism. Yet this is a recent development in history: The whole concept of liberty owes a great deal to indigenous people. In the era before Ron Paul and Austrian economics, it was anarchist-communists who primarily claimed the mantle of libertarianism. And from the Haitian Revolution, to the suffragettes, to the civil rights movement, one of the signature cries of radicalism was “Freedom or death!” But perhaps we’ve decided that freedom no longer has value. It would seem that safety has taken primacy in the left’s discourse in recent years.
Nonetheless, the conviction that long-term liberty is more important than short-term safety still underlies the premises of many social justice projects. In its literature on abolishing the prison-industrial complex, Critical Resistance writes of “throwing all the prison doors open, tearing down the prison walls and the station houses and the detention centers and the punishing mental ‘health hospitals.’” The collective warns that “we live in a society where the media takes advantage of our fears,” to enable a situation where “The government creates other crimes to increase the police’s ability to control people.”
The logic of abolition creates dilemmas that have to be resolved, and they inevitably come with short-term costs in safety. Violent street crime was (and is) real. 5000 or more African-Americans died from drug-related murder in each year of the 1980s. In 1990, as Joe Biden conceived his crime bill, one of every 50,000 African-American males was the victim of a homicide. In Miami and other cities, refrigerated trucks outside hospitals were filled with the overload of Black bodies. That tragedy should not have been used to rationalize the prison-industrial complex (although many older Black people did accept that justification), and the current danger cannot be used to justify alienating and authoritarian measures today. Vigilance against those who exploit trauma to expand their control is more necessary than ever. Awareness that institutional liberals are particularly good at exploiting it should be front and center. 
The US establishment has traded in the War on Communism-Stalinism for the War on Crime-Drugs for the War on Terror-Islamism for the War on Covid-19. It is the same bi-partisan campaign in new and ever more oppressive clothing. It’s empirically provable that Stalinism, drug gangs, and jihadism each killed tens of thousands (perhaps millions) of innocent people globally—just like the virus. The question is, is blind fear and authoritarianism really our best, most healthy response to crisis? And what is the recent government and social track record of constraining people’s basic liberties “for their own good”?
Many radicals are thrilled by the recent prison releases which are seemingly in response to the crisis, but they may be misunderstanding the significance of these events. Reducing indoor crowding is imperative to saving lives, but we should not be under an opportunistic illusion that the pandemic response is facilitating liberation. Covid-19 has not led to anything like a 180 degree turn in prison policy—rates of re-entry have been increasing for years, even under the Trump administration, with 500,000 or more prisoners released annually. (In November 2019, over 400 Oklahoma prisoners were released on a single day.) At the same time there are more people than ever under “correctional control” (parole and probation) which includes involuntary electronic surveillance. Immigration activist and New York University law fellow Albert Fox Cahn has written extensively on the nightmare condition of his clients who’ve been forced to wear an electronic tracker, and considers this to be the vanguard of social control:
“Increasingly, American jails are built without bars, razor wire or even guards. Instead, 21st century prisons are built from data. More and more, inmates are confined not by physical buildings but by GPS monitors, radio-frequency trackers and an array of other electronic monitoring.”
Virtually all of the newly decarcerated prisoners are suffering this form of confinement. Cahn considers it a form of “torture,” not only because the electro-magnetic devices have a history of causing headaches and breathing problems, but because they are used to extort excessive “rental fees” from prisoners and record people involuntarily 24 hours a day. The legal scholar warns that in our apathy toward this new form of biopower we may “let the movement to reform prisons become a movement for virtual prisons.” Similarly, in the Cardozo Law Review, Chaz Arnett notes that the carceral state is becoming “malleable, extending beyond prison walls,” and that compelled electronic tracking is “expanding our carceral reality” in “a move from decarceration to e-carceration.” Ultimately, it “may exacerbate one of the greatest harms of mass incarceration: the maintenance of social stratification.”  Agamben’s theories on the normalizing of exceptional repression do not seem outdated in this light.
I would be remiss in not mentioning the notorious Bill Gates microchip conspiracy theory that’s now making the rounds. Despite some of its more grotesque iterations, it is incredibly dangerous to ignore the possibility of some aspects coming true and further entrenching social stratification in the way that tracking systems have always done. Microsoft is invested in nanotechnology that is designed to be implanted intradermally as a digital certificate for “immunization passports.” While a major study from Oxford led by Dr. Sanjar Gupta shows the likelihood that community immunity can be developed without isolation or vaccination, Microsoft’s founder rejects this outright, and assumes that everyone is a super-spreader until proven otherwise. In the plans of Gates and his partners, a person would need the new epidermal electronics to circumvent social isolation and “demonstrate they’re virus free and can work or socialize in some formats…” But who gets labeled as safe? If it is true, as many have posited, that Blacks are more susceptible to being infected by Covid-19, then they are far more likely to have their immunization passport marked “restricted,” and denied the freedom of movement that less “risky” demographics are granted.
In the journal Geographic Review, Jerome Dobson wrote that digital tracking “promises to be the greatest instrument of social change arising from the Information Revolution…a grand social experiment which has already begun without forethought.” The judgement of Professor Cahn is equally grand, but more severe: “Emerging surveillance technologies pose an unprecedented threat to civil rights and the promise of a free society.” Academic geographers go so far as to say it portends “geoslavery.” The far-right’s view of this technology is highly distorted, but the left’s failure to keep an eye on it at all is an equal travesty.
Techno-authoritarianism is surging in the midst of a state of exception and it is not science fiction. This suspension of liberties isn’t proven to save lives, but does fit the pattern of past social disasters in America. Long before the mass opposition by the right, Agamben, a thinker of the left, tried to warn us of this situation. Despite the fact that he was a 77-year old man living in Italy, belonging to the group which is supposedly being protected by the lockdown, he was scorned as privileged and detached. But drawing attention to panic and deception isn’t to besmirch the suffering in the Bronx, or in Bergamo. It’s simply to grapple with the historical dilemma that governments can exploit one tragedy to create another, perhaps worse, one.
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1. During the period that Sanders was leading Biden in the polls, Mother Jones virtually stopped covering the democratic socialist at all, and where it did, it egregiously promoted neoliberal claims. In September 2019 it aggressively argued that Sanders’ advocacy for rent control, and opposition to gentrified luxury condo development, was crypto-conservative and racist. In June 2019 it implied Sanders’ had an inferior climate policy to Elizabeth Warren. In March 2019 it argued that Democratic voters were moving “dangerously to the left.”
The Guardian did not object to the coup against Evo Morales until a month after it had taken place, and gave no warnings about the proto-fascist opposition in Bolivia in the months leading up to the election.
2. Those who truly wish to center empiricism should bear in mind that the equation of correlation with causation is bad science and even worse politics. It’s an objective fact that the decline of African-American homicide victims in the 1990s correlates with a rise in the prison population. But only a proto-fascist considers those statistical relationships to be true causality. Some are very respectable proto-fascists, however (commonly thought of as liberal experts and tenured at mainstream publications) like the criminologist I quoted at the top of this page.
3. “Most notably, the study found that African American inmates have significantly lower odds of preferring electronic monitoring over prison than White inmates, demonstrating that African American inmates view electronic monitoring as highly punitive, and may in some cases prefer more time in prison to avoid being released on long periods of electronic monitoring.”- from the Cardozo Law Review