- Parent Category: Criminal Justice and Racism
- Category: Police Brutality and Lynchings
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Liyah Kaprice Brown
Abstracted from: Liyah Kaprice Brown, Officer or Overseer?: Why Police Desegregation Fails as an Adequate Solution to Racist, Oppressive, and Violent Policing in Black Communities, 29 New York University Review of Law and Social Change 757-794 (2005) (210 Footnotes)
On January 23, 2004, Timothy Stansbury, Jr., a nineteen-year-old Black man, earned his GED. He planned to attend community college and start a family with his girlfriend. Hours later, Timothy met two of his friends and together they traveled to another friend's party. The three young men took a shortcut across the rooftop of Timothy's building because the intercom in the building where the party was held was frequently broken. As the trio approached the rooftop doorway, Timothy was gunned down by a White police officer who panicked upon seeing Timothy. This incident occurred in the Louis Armstrong Housing Projects of Bedford-Stuyvesant, a predominantly Black inner-city neighborhood of Brooklyn, New York. Both the police officer who killed Timothy and the police officer's partner had their guns drawn, pursuant to a New York Police Department (“NYPD”) policy, while on a routine vertical patrol. Although NYPD Commissioner Kelly immediately characterized the shooting as unjustified, a grand jury cleared the officer of any wrongdoing.
On the same day of Stansbury's murder, in Bensonhurst historically Italian and Jewish neighborhood located in Brooklyn, New York--a subway rider complained to the police that a man on the subway had a gun. When police arrived at the subway platform, Kevin Tester, a thirty-eight-year-old security guard, fired three shots at them with his .38 caliber revolver. Instead of drawing their own guns and blasting off rounds, the police took cover, called for backup, and talked Tester into giving up his gun. Tester was subdued without injury before being taken into police custody. Mr. Tester, a White male who was illegally armed and violent, is alive today while Timothy Stansbury, a Black male who was unarmed and law-abiding, is dead.
The blatantly inapposite police tactics employed in these two cases illustrate, in part, why members of the Black community declare,” No justice, no peace, til the police are off our streets,” and “Our kids are human too!” Since our existence in this country, we have been subjected to a dual system of law enforcement in which we remain “at risk” for police antagonism and violence while Whites enjoy service and protection. The police in our neighborhoods continue to operate as an “occupying force” established to police (not protect) us.
In this article, I argue three main points. First, historically, White policymakers have mischaracterized the problem between police and the Black community as one of Black hostility and resentment rather than as one of police racism and misconduct. Second, the “solution” of police desegregation, which was recommended after nationwide disturbances erupted during the 1960s, fails to remedy the crisis of law enforcement in Black communities because of a misplaced focus on changing Blacks' perceptions of police as opposed to changing the police itself. Finally, desegregation is a formal rather than substantive remedy that may alter the face of the police but does not eradicate its subordinating nature and thus, serves White but not Black interests.
In Part I, I discuss, in the first subsection, the historical problems between law enforcement and the Black community and, in the second subsection, the manner in which the National Advisory Commission on Civil Disorders characterized those problems during the 1960s. In Part II, I explore the subsequent police response to the Commission's recommendations to increase the numbers of Black police officers. I use critical race theory in Part III to analyze why desegregation fails as an adequate solution to racist, oppressive, and violent law enforcement in Black communities. This part highlights so-called “reverse discrimination” claims by White police officers and the doctrine of “operational needs,” which arose as a defense for police departments' voluntary affirmative action plans.
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Dynamics between the police and the Black community remain highly charged and may even be as electric as they were during the 1960s. Despite nearly forty years of desegregation, the Black community can cite countless stops, frisks, strip-searches, botched raids, and certainly unanswered calls as evidence of business as usual. The dual system of law enforcement that so many Black people struggled to eradicate remains. While Whites are met with courtesy, professionalism, and respect, Black residents are forced to endure a system that is hostile, sub-par, and offensive.
The current crisis of law enforcement in Black communities flows from the failure of policymakers to correctly assess the causes of tension between Black people and police. It should have been obvious--even to those who would rather not have noticed--that since racist and aggressive policing in the Black community was primarily responsible for the loss of life and economic and social devastation that followed from urban riots, a total reconstruction of police was necessary. But rather than consider what the riots indicated about the police departments, policymakers concerned themselves with what the riots signified about Black people. Those in power blamed Black hostility for the widespread destruction and focused on changing Blacks' perception of police instead of rethinking the police itself. The flawed framing of the problem inevitably infects the solution and is directly responsible for the continuance of police business as usual.
Hindsight reveals that a desegregation model of police reform is inept to address what is really the problem--oppressive and repressive policing in Black communities. As we were during the 1960s and before, Black children, women, and men today are targeted, humiliated, and brutalized by police. Black officers still lack meaningful employment and are concentrated in bottom-level positions. Recently, Black NYPD officers felt the ill-effects of operational needs and its deterioration from a justification for affirmative action to a basis for racist decision-making. Desegregation also fails because it is too simple to address the complexities of racism among those who are racially subordinated. And while police and politicians have benefited from hiring Black officers to perform undercover and race relations work, the Black community has yet to realize what it deemed valuable in having members of our own in law enforcement.
Certainly, the Black community has not agreed on the law enforcement policies that will best serve our interests. But the constant failure of policy-makers to consider our input shows that it is wise for us to take control of the debate. As a very preliminary manner, this paper hopes to inspire a new framework for implementing and evaluating police reform in which the best interests of the Black community remain central. Still yet, the Black community must decide the issue of whether police and criminal justice reform is preferable and viable absent a model for Black liberation and self-determination.
Law Clerk to Hon. Sterling Johnson, E.D.N.Y.; J.D. 2004 New York University School of Law; B.A. 1999 Georgetown University.
Donald F. Tibbs
Abstracted from: Donald F. Tibbs, From Black Power to Hip Hop: Discussing Race, Policing, and the Fourth Amendment Through the “War On” Paradigm, 15 Journal of Gender, Race and Justice 47- 79 (Winter 2012) (160 Footnotes)
Checks out the message in its rough stylee, the real criminals are the C-O-P.
I'm not the other color so police think, they have the authority to kill a minority.
Son do you know what I'm stopping you for? Cause I'm young and I'm black and my hats real low, do I look like a mind reader sir, I don't know?
Despite the longstanding history of race in America, the twenty-first century curiously purports to be an era of post-racialism. As support, it points to the first State of the Union address ever given by an African American President, Barack Obama. President Obama's ascendancy acknowledges our racial progress, but it is far from an uncomplicated celebratory milieu. While it is true that the convergence of racial progress and multicultural democracy marks this historical moment, claiming we are indeed post-racial overstates our reliance upon its significance. Rather than destabilize the basic notions of white superiority, the significance that we have a Black president, and thus the claim that we are post-racial, actually reinvigorates what Professor Joy James called “the disciplinary narratives of anti-black racism.”
Taking stock in this instance, however, means recognizing how the rise of Obama raises the specter of racial uplift by way of the redeployment of racist tropes of Black criminality. He is nominated, runs, and wins a presidential election not because of his Blackness, in which he represents the whole spectrum of Black social and political existence, but because his brand of Blackness is the “other”--the palpable, tolerable, embraceable Black man who represents the proudest moment in colorblind ideology: the ability of young African Americans to pull themselves up by their own bootstraps. In other words, Obama rises because of pathological Blackness, not in spite of it. This is not to understate President Obama's qualification for the position, although many have tried. But as Professor Fred Moten explains, “[t]he cultural and political discourse on black pathology has been so pervasive that it could be said to constitute the background against which all representations of blacks, blackness, or (the color) black take place.” Stock taking in this context, then, means dealing with the contradictions of the present state of America, of Obama's post-racial America, in terms of how white supremacy constitutes the basis not only for white identity but for Black subjectivity as well.
But the fashioning of Black existence within the framework of post-racialism presupposes a significant recognition about state power: how can we assess this state of dis-union through an understanding of the nexus between America's war on social issues and popular culture? In particular, how is post-racial America affected by this nation's longstanding war on Blackness, ranging from the Black Power Era to the era of Hip Hop? How does the state's power to control the narrative of race demonstrate its ongoing efficacy in both classifying crimes and who is criminal? More importantly, what are some of the insidious ways in which state power moves under the cover of darkness? I maintain a key component for understanding the “fallout” of declaring war on social issues and its impact on young people of color is the recognition that the state is most effective where it is least visible example, in the trajectory of American law.
Contesting racial progress is not an easy task. After all, most Americans embrace the idea that our racial tolerance today is considerably different from the past: that the old vanguard of American racism is dead and buried, and racial enlightenment has risen from the fiery ashes of de jure and de facto segregation obliterated by 1960s civil rights struggles. While there may be some value to that argument, strict regimentation begs the question: racial enlightenment according to whom? In order to contest racial progress we must approach the discussion honestly. In other words, we need to locate these new discussions about post-racialism in the old discourse of colorblindness, which itself needs situating in terms of the state's naked criminality against the liberation fighters of the Black Power Era.
Post-racialists, of course, would have us believe that the landmark ruling in Brown v. Board of Education and the passage of the Civil Rights Acts of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968, effectively made racism a thing of the past. In other words, law not only officially outlawed racism, but it also reframed its abrogation with irrefutable evidence of Black equality, most specifically, with the presence of more Blacks in high profile careers. But that characterization misses the mark. Because white civil society in this country has “long considered black people to be weapons of mass destruction,” the increasing presence of Black men in prominent positions should indeed give us pause. The persistence of racial inequality is not so easily replaced because a few Blacks have poked through America's glass ceiling in law, politics, and business. Instead, racial inequities, namely in policing and punishment, still overwhelmingly prevail. In fact, the ongoing discourse of post-racialism actually makes it difficult to discern the ongoing reality of anti-Blackness in American law. Campaigns, such as “get tough” on crime, wage a “war on drugs,” and “increase our border security” adopt colorblind language, but their targets are almost overwhelmingly Black and Brown people. Simply, the effect of post-racial ideology on racial progress is to render racism illegitimate and suspect by definition, hence the use of the phrase “playing the race card” anytime a person of color simply points to the most mundane and obvious moments of racism in the post-Civil Rights Era.
Although Critical Race scholars have interrogated post-racial ideology and its jurisprudence, no one has connected it to its material base: the historiography of the late 1960s Black Power Era where the dirty work of an anti-Black state apparatus was deeply mired in extra-legal activities. During the Black Power Era, from 1966 through 1980, the state pursued two primary strategies in repressing the Black liberation struggle: to criminalize Black expressions of sovereignty and to criminally assault Black people everywhere. The FBI's clandestine counterintelligence program, COINTELPRO, was a central means toward this end and should be a requisite study for all generations. Fraudulent prosecutions and assassinations of Black leaders and rank and file activists were coupled with the mundane killings of everyday Black folk by the police. Between 1966 and 1969, the federal government engaged in numerous counterintelligence operations against Black liberation organizations and their leaders. Between 1971 and 1973, nearly 1000 Black people were killed by law enforcement. This is a higher rate of state-sanctioned death--over one police murder per day for three years--than during the height of anti-Black lynchings around the turn of the twentieth century.
To all that's been said thus far about post-racialism, I wish to add this: the discourse on post-racialism emerges from a context of profound anxiety and self-consciousness about the ongoing brutality of the law's relationship to Black Americans. The assiduous insistence on defining racism as merely individual acts of bias betrays a desire to hide the reality of structural violence and institutionalized forms of discrimination. Whereas post-racialism emerged out of a raw and violent period of social protest and state repression, seeking to transform the meaning of these struggles from a historic political context to merely a matter of criminality, legal discourse on post-racialism appears after four decades of law and order retrenchment. The memory of the social movements, of the state's naked criminality, and of the law as a space of open contestation has waned. So, also, has the memory of a racial discourse that was actually grounded in reality. Post-racialism, therefore, is really about a desire by whites to move this society into a post-Black people era. It ignores the insatiable demands of the Black community and denies the ways in which Black existence is a reminder of state violence. Simply, post-racialism hopes Black people will stop being Black.
While new generations of young people are raised under conditions that are considerably worse than those faced prior to the post-Civil Rights Era, both liberal and conservative whites appear eager to “move on”--to disregard, with finality, the historical context that produced today's miserable conditions. The generation I refer to is the children of the Black Power activists of the 1960s and 1970s, the children who came of age in the 1980s and 1990s, and were bequeathed revolutionary ideals in a post-revolutionary age. This generation also faced a society in which changes in the political economy have reduced employment and education opportunities forever, state restructuring abetted rather than ameliorated poverty, conservative jurisprudence facilitated draconian public policy, and Cold War foreign policy translated into war-making against people of color throughout the Third World. This generation of Black and Brown youth would come to be called gangsters, thugs, and hoodlums, while they would come to call themselves “the Hip Hop generation.”
The 1980s, the beginning of the post-Civil Rights Era of colorblindness and formal legal equality, saw an increase in structural violence that hit Black communities the hardest. The portion of Black children living in poverty during this decade increased from 41.2 to 43.7 percent. The increase in child poverty is directly related to deindustrialization and state restructuring. By the 1980s, the rise of the financial industry and the decline in manufacturing meant a devastating loss in stable working-class jobs, a decline in real wages for all working people, and a rise in part-time, low-wage, dead-end service-sector jobs. Fifty percent of Black males employed in the manufacturing sector in five Midwest states lost their jobs as a result of deindustrialization between 1979 and 1984. Consequently, between 1965 and 1990, Black family income fell fifty percent, and Black youth unemployment quadrupled. Although popular discourse pathologized the Black family for the problems it faced during these times, the shifts in the political economy clearly meant that parents' material conditions to provide for their children had seriously deteriorated.
State restructuring over the course of the 1980s and 1990s undermined Civil Rights Era progress in substantial ways. It ended welfare and affirmative action, rolled back many basic social services, and established a new reliance on criminal justice to create and deal with the predictable problems connected to joblessness and poverty. During this period of social change, the children of the former Black revolutionaries came to know the meaning of race through their experiences of continuing and cumulative discrimination in housing, employment, and education, persistent police brutality, and toxic environmental pollution in their neighborhoods. In other words, unlike their parents' generation, whose struggles focused on legal equality and deeply entrenched battles against racial segregation, the Hip Hop generation is besieged by a plethora of post-Civil Rights problems, including racial profiling, rising rates of incarceration, poor(er) education, heightened sexual-identity wars, environmental racism, AIDS, and unemployment worsened by the onset of American capitalist globalization, namely job outsourcing to low wage developing countries.
Although Black residents organized their communities throughout the 1960s and 1970s against the violations of civil rights legislation guaranteeing fair housing, fair employment, and educational equity, the post-Civil Rights political imagination is more concerned with the cultural controversies stirred up by the beats, rhymes, graffiti art, dance styles, and posturing emerging from inner-city youth. From “the promises that break by themselves . . . to the breaks with great promise,” the Hip Hop generation rose from the devastation of the state's war against Black revolutionaries to carry on the tradition of irreverence and creative artistry that has been a central component of Black expressive vernacular culture since at least the “baaadman tales” of Jelly Roll Morton in the late nineteenth century and the age-old tradition of “signifying.”
Like the attack on Black politics during the Black Power Era, the attack on politics in rap music with the structural violence of the political economy--narrowed the cultural terrain on which counter- narratives about our present historical moment might address ongoing Black dispossession. By narrowing the field of representation, hardcore lyrics and stereotyped Black maleness become a commodity for purchase, trade, and power. In the absence of political mass movements, revolutionary hardcore or “conscious” rap is difficult to sell. As Professor Joy James explains:
The drive for capital promotes some and curtails other underground narratives: boasting about breaking women = $$; boasting about reading to your two-year-old = $0; romanticizing killing or dying by the young rebel = $$; celebrating the pursuit of old age as irascible rebel = $0. Capital as medium transforms the hardcore into market transactions, that is, into forms of alienation in labor, desire, and politics.
In other words, rapping about shooting, killing, or dominating other Black men is far more lucrative than rapping about how corporate lawyers in Citizens United v. Federal Election Commission colonized the First Amendment to the U.S. Constitution to define the corporation as a “legal person,” enabling them to successfully claim that the corporation is entitled to free speech like an actual human being.
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Focusing on the “long fetch” of Black suffering that emanates from the era of Black Power, this Article claims that understanding the present state of anti-Blackness in modern policing and the trajectory of Fourth Amendment analysis, which currently authorizes racial stereotypes in (de)establishing privacy rights, is critical to reconciling the specter of legal violence against young Black men. While the Black Power Era was a period of Black self-determination, the post-Civil Rights Era, which has been recognized as the Hip Hop Era, has witnessed the rise of the American gangster--emanating from the government, extending to its citizens.
Understanding how legal proclivities on race and criminal justice induce narratives that emanate from Black Power and influence rap music is important because it reveals how the contemporary dialogue championing the successes of the Civil Rights Era fails to account for the hidden history of America's protracted war on Black liberation. Further, missing these historical connections prevents public recognition that modern interpretations and applications of the Fourth Amendment have not only changed post-Civil Rights policing, but also retrenched anti-Blackness in everyday legal parlance.
While there is much fallout from the war on Black Power, namely the over-incarceration of young Black men, police brutality, unconstitutional searches and seizures, and racial profiling, there exists one more: the problem of honestly narrating race and law in a colorblind world. Simply put, Hip Hop artists have replaced the political visionaries of the Black Power Era as the voices of resistance to, and freedom from, racial and political oppression deeply embedded within American law. Recognizing the rise of Hip Hop, and rap music, as part of the fallout from the war on Black Power helps us clearly see how stories of law and order shifted from the soapbox poets of Black Power to the street poets of Hip Hop. In this space, Hip Hop's shifting discourse on law takes a decidedly different form: where reading or listening to rap music reveals how the fallout of the war on crime and the war on drugs exposes the deep connections between Black social existence and transformation within American law.
Associate Professor of Law, Drexel University Earle Mack School of Law
Frank Rudy Cooper
Abstracted from: Frank Rudy Cooper, We Are Always Already Imprisoned: Hyper-incarceration and Black Male Identity Performance, 93 Boston University Law Review 1185-1204 (May, 2013) (167 Footnotes)
An unexamined impact of drug-war-induced racial profiling is that the possibility of being imprisoned has become fundamental to black masculine subjectivity. Take for example the episode, “A Date with the Health Inspector,” from Aaron McGruder's critically acclaimed animated television show, The Boondocks. At the beginning of the episode, Tom DuBois is arrested and jailed. This is quite surprising because DuBois is a model citizen. Other than being a black man, DuBois is your typical successful prosecutor living in the suburbs. But being a black man has led him to be mistaken for a criminal. With the phone call he is allowed after his arrest, DuBois reaches out to his neighbor, genius black nationalist and ten-year-old Huey Freeman.
DuBois's concern is not that he will be mistakenly charged, but that remaining in jail for even one night will be ruinous. Specifically, he worries that he will be made “somebody's bitch” by means of anal rape. Put aside DuBois's misogyny and homophobia and accept his concern on its own terms. He envisions being in the jailhouse shower and dropping his soap. A huge black man tells DuBois to pick it up. DuBois says he is done washing, but the man says he is the “health inspector” and insists that DuBois pick up the soap. As DuBois bends over, the camera slowly pans down from the man's waist, revealing a penis that seems to stretch on forever. DuBois says that he has always been haunted by this vision. We see him as a child telling a friend he is going to study hard so he does not get sent to jail and raped. On the phone with Huey, DuBois is hysterical and insists that Huey find a way to prove DuBois's innocence before he is sent to the main jail that night.
McGruder's characters are not the only ones concerned about imprisonment. Michelle Alexander's book, The New Jim Crow, was one of the most celebrated books of the past two years. Therein, Alexander argues that the hyper-incarceration of men of color is an extension of U.S. oppression of black people that is traceable to slavery, the black codes, and Jim Crow segregation. The book followed much criticism of the explosion in incarceration since President Reagan's declaration of a “War on Drugs,” especially because of the grossly disproportionate imprisonment of black men. As I will discuss, the drug war initiated by Ronald Reagan in 1982 has basically amounted to a war against men of color, particularly black men. Despite the fact that rates of drug use are essentially equal across races, black men are grossly disproportionately detained, charged, and incarcerated for petty drug offenses. For example, researchers found clear disparities in policing of men of color in general:
Arrest data indicate that during the 1990s the primary focus of [New York City Police Department “Quality of Life” ] policing became smoking marijuana in public view (MPV). By 2000, MPV had become the most common misdemeanor arrest, accounting for 15% of all NYC adult arrests and rivaling controlled substance arrests as the primary focus of drug abuse control. Of note, most MPV arrestees have been black or Hispanic. Furthermore, black and Hispanic MPV arrestees have been more likely to be detained prior to arraignment, convicted, and sentenced to jail than their white counterparts. That scholarship is just a snapshot of the overwhelming evidence that black men are grossly disproportionately targeted and incarcerated for petty drug use.
In light of that scholarship, it is strange that Hanna Rosin argues we are just now facing the prospect of the “end of men.” Rosin's claim is that trends toward greater female educational success, the conversion of our economy from being one based on brawn to one based on knowledge, and women's greater power in romantic relationships signal that women will soon become the predominant sex (or at least equal). She talks as though she is revealing a new problem for men in general, but ignores the longstanding war on men of color. That omission becomes less surprising when one sees that she previously wrote an article suggesting that the spread of poor people to the once-homogenous suburbs spread crime to those areas. In that view, men of color equal crime. The war on men of color thus becomes explicable as the ordinary workings of the criminal justice system, and only purported signs of a new decline in white men's power suggest the end of men.
In this Essay, I want to re-center the experiences of men of color, particularly those of black men. The mainstream's depiction of black men as always already imprisoned disciplines us into the never-finished quest to prove we are a “Good Black Man,” rather than a “Bad Black Man.” In order to propose greater empathy for black men's imprisonment, I will proceed in the following manner. In Part I, I set the stage for considering the impact of drug-war racial profiling on black men's senses of self and the identities attributed to us by summarizing the components of the circuit of identity. In Part II, I consider black men's attributed identities by demonstrating that drug-war racial profiling has naturalized the idea that black men deserve to be disproportionately imprisoned. I also argue that Rosin's “end of men” thesis suffers from this assumption and identify a similar lack of empathy in Supreme Court jurisprudence on strip searches. In Part III, I explicate my theory of the bipolarity of black men's attributed identity in relation to hyper-incarceration. I conclude with some personal thoughts about black men's internalization of the possibility of imprisonment into our self-identities.
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We know that society depicts some black men as bad men. We know that society expects those men to suffer a violent fate. We black men whom society designates as “good” spend our days disproving that we are part of the Bad Black Man group that society exiles to poverty or prison. In that sense, we are always already imprisoned within black masculinity.
Professor of Law, Suffolk University Law School.
Rev. Osagyefo Sekou
December 29, 2015