Monday, September 25, 2017

Abstract

 

Blanche Bong Cook, Biased and Broken Bodies of Proof: White Heteropatriarchy, the Grand Jury Process, and Performance on Unarmed Black Flesh, 85 UMKC Law Review 567 - 623 (Spring, 2017) (236 Footnotes Omitted) (FULL ARTICLE)

 

The intention in torture of humans is ... to silence the other's voice by wrecking his or her body; it is to make the tortured speak the torturer's words instead of his own. Margaret A. Farley

 

BlancheBongCookWith 90% or higher success rates, grand jury proceedings epitomize prosecutorial discretion, domain, and power. Yet, in the case of Darren Wilson - and numerous other police officers charged with similar acts of violence - prosecutors problematically failed to obtain indictments (let alone convictions) for the deaths of unarmed black citizens. In questioning the absence of a true bill in the Wilson grand jury proceeding, many critics, commentators, and legal pundits suggest that the answer is obvious; however, when asked exactly what is obvious, responses oscillate. Those on the left of the political spectrum, may ask, "Wasn't it racism?" However, when hard pressed to carefully delineate what is meant by "racism," few can explain in detail. For example, few are willing to say that the mere sight of a black body arouses feelings of suspicion and dangerousness and stimulates a need to control. As another example, few, if any, have suggested an intersectional analysis, specifically that if these were black officers killing unarmed white females, the investigations, grand jury presentations, grand jury results, possible settlements, framing of the evidence, discourses surrounding the proof, trials, and/or proposed solutions would be radically different. Those on the right of the political spectrum, may ask, "Wasn't Brown a thug that deserved it?" "Wasn't Brown wild and dangerous?" Although the answers may seem obvious, it is worth unpacking how the institutional power of courts have masked, obfuscated, and legitimized the operations of white supremacy and heteropatriarchy in these unarmed killings. Prosecutors and judges have acted in ways that perpetuate the violence of law enforcement, when their proper role should be corrective. Law enforcement has exaggerated the limits of its authority, and both courts and prosecutors have failed to exercise their power to curb arbitrary violence by the state, even as victims of police wrong-doing are encouraged to seek redress through the courts. The recent spate of unarmed shootings of Blacks, typified in the case of Michael Brown and Officer Darren Wilson, functions as sites of white and patriarchal violence on black flesh, more specifically, implicit bias concretized as structural prejudice during the investigation of Officer Wilson. As a former federal prosecutor with a 100% success rate in obtaining grand jury indictments in over 100 federal cases, the reasons for the absence of a true bill in the Wilson case are hardly obvious to me or the standard viewer of the American scene. At least part of the answer, however, to the absence of a true bill in Wilson's case lies in the power of white heteropatriarchal ideologies to invert order and to obfuscate, hide, and legitimize the inversion. These ideologies are manifested with the power and moral authority to turn an indictment proceeding into a vindication process where the alleged perpetrators become the victims and the victims, particularly when they are societally vulnerable, become the villains. Instead of vetting whether Wilson used excessive force, the proceedings vilified Brown and sanitized Wilson, inoculating him from charges of criminality and treachery. During Wilson's grand jury proceedings, the prosecution put on Wilson's case-in-chief, normally reserved for the defense attorney at trial; this is just one example of several that demonstrate the inverted process in which prosecutors become defense attorneys, grand juries become petit juries, defendants become victims, and victims become villains. Much like rape cases, battered women's cases, sex trafficking cases, and other cases involving societally vulnerable victims, the grand jury proceedings confirmed Wilson's innocence and Brown's villainy. Perhaps too, the absence of a true bill reassured the public that the tools necessary to promote, privilege, and protect white innocence and to annihilate black demonry were alive, well, and resting comfortably within the legal process. The Wilson proceedings paradigmatically exemplify the manner in which law is intersectionally raced, classed, and gendered, such that black bodies are relegated to places of vulnerability and saturated with the conditions necessary for exploitation, domination, and control. Yet the power of law to reify existing social arrangements and racial hierarchies comes from, among other things, the procedural performance of fairness and neutrality, such that violence and inequality appear natural, necessary, inevitable, and beyond reproach. The "no true bill" vindicated the right of a white officer to shoot and kill a perceived black threat.

In order to explore the obfuscating, inverting, reassuring properties of the Wilson no true bill, this article proceeds in eight parts. Part II explains and defines key terms used throughout the article, including white supremacy and heteropatriarchy, white heteropatriarchy, implicit bias, and performance. Part III provides background and contextual information about the facts and circumstances surrounding Officer Darren Wilson's shooting Michael Brown. Part IV provides background and contextual information about grand jury proceedings generally. Part V explores the structural biases and inherent conflict of interests that favor white police officers accused of killing black people. Part VI uses a set of multidisciplinary analytical tools to expose the operations of white heteropatriarchy in the Wilson grand jury proceedings. Part V problematizes the underlying societal notions that frame the way we see evidence, particularly implicit bias. Finally, in Part VIII, I argue that a remedy requires measures as comprehensive and ubiquitous as white heteropatriarchy itself, but more

Part II explains and defines key terms used throughout the article, including white supremacy and heteropatriarchy, white heteropatriarchy, implicit bias, and performance. Part III provides background and contextual information about the facts and circumstances surrounding Officer Darren Wilson's shooting Michael Brown. Part IV provides background and contextual information about grand jury proceedings generally. Part V explores the structural biases and inherent conflict of interests that favor white police officers accused of killing black people. Part VI uses a set of multidisciplinary analytical tools to expose the operations of white heteropatriarchy in the Wilson grand jury proceedings. Part V problematizes the underlying societal notions that frame the way we see evidence, particularly implicit bias. Finally, in Part VIII, I argue that a remedy requires measures as comprehensive and ubiquitous as white heteropatriarchy itself, but more

Part III provides background and contextual information about the facts and circumstances surrounding Officer Darren Wilson's shooting Michael Brown. Part IV provides background and contextual information about grand jury proceedings generally. Part V explores the structural biases and inherent conflict of interests that favor white police officers accused of killing black people. Part VI uses a set of multidisciplinary analytical tools to expose the operations of white heteropatriarchy in the Wilson grand jury proceedings. Part V problematizes the underlying societal notions that frame the way we see evidence, particularly implicit bias. Finally, in Part VIII, I argue that a remedy requires measures as comprehensive and ubiquitous as white heteropatriarchy itself, but more

Part IV provides background and contextual information about grand jury proceedings generally.

Part V explores the structural biases and inherent conflict of interests that favor white police officers accused of killing black people. Part VI uses a set of multidisciplinary analytical tools to expose the operations of white heteropatriarchy in the Wilson grand jury proceedings. Part V problematizes the underlying societal notions that frame the way we see evidence, particularly implicit bias. Finally, in Part VIII, I argue that a remedy requires measures as comprehensive and ubiquitous as white heteropatriarchy itself, but more

Part VI uses a set of multidisciplinary analytical tools to expose the operations of white heteropatriarchy in the Wilson grand jury proceedings. Part V problematizes the underlying societal notions that frame the way we see evidence, particularly implicit bias. Finally, in Part VIII, I argue that a remedy requires measures as comprehensive and ubiquitous as white heteropatriarchy itself, but more

Part V problematizes the underlying societal notions that frame the way we see evidence, particularly implicit bias. Finally, in Part VIII, I argue that a remedy requires measures as comprehensive and ubiquitous as white heteropatriarchy itself, but more

Finally, in Part VIII, I argue that a remedy requires measures as comprehensive and ubiquitous as white heteropatriarchy itself, but more specifically solutions aimed at the inner workings and dynamics of law enforcement. I explore efforts, both theoretical and practical, to disrupt the conflation of white heteropatriarchy with law and order, particularly the use of implicit bias research to screen law enforcement candidates in the application process itself.

Before turning to the main body of the essay, it may be helpful to clarify how and why I use the terms "heteropatriarchy," "white supremacy," and, in combination, "white heteropatriarchy," as well as to define the terms "implicit bias" and "performance," which are key to my analysis of the investigation and grand jury proceedings in the Daren Wilson case.

Heteropatriarchy. Heteropatriarchy is generally defined as a system of power and control based on compulsory heterosexuality, patriarchy, and imposed gender-binary systems. In defining the salient characteristics of heteropatriarchy, Angela Harris emphasizes five "linked assumptions":
First is the assumption that every person is born, and thereafter remains for life, either male or female. Second, one's sex at birth is assumed to determine one's gender; biology, therefore, controls one's social behavior .... Third, sex/gender causes males and females to be distinctively and dramatically different along dimensions of appearance, character, behavior, interests, and innate abilities .... Fourth, because "opposites attract" and sex differences are complementary, sexual and romantic relationships should occur only between men and women, not between people of the same assigned sex .... These four linked assumptions constitute the "hetero" of heteropatriarchy. The fifth assumption provides the "patriarchy": though male and female are opposite sexes, they are not quite equal. Masculinity is the privileged sex/gender. In nearly every setting, as feminists have pointed out, masculine characteristics and attributes are considered superior to feminine ones. In the case of Michael Brown and Darren Wilson, it must be pointed out that both individuals are socially classified as men, and thus constructed to possess particular traits of masculine character and behavior. As argued infra, expectations surrounding masculinity and violence played a significant role in the inversion of Brown's and Wilson's roles as victim and perpetrator respectively.

White Supremacy. The role of gender norms cannot be fully understood, however, without also considering race. White supremacy refers to a formal system of racial domination based on the belief that Blacks are inferior and should be subordinated and made pliable to white desire. White supremacy is a perennial and omnipresent historical operative that creates a material reality of vulnerability and degradation for black bodies. This grounding stands in sharp contrast to any claims of post-racialism. Post-racialism represents a fatigue with race and racial consciousness. Ignoring race allows for the perpetuation of racialized inequality, rendering the starting point for change invisible. By grounding my analysis in the narrative and legacy of white supremacy and the material reality it creates, this article answers Professor Kimberle' Crenshaw's call "to maintain a contextualized, specified world view that reflects the experience of Blacks." In the case of Michael Brown and Officer Wilson, racial ideologies cleave gender norms, such that white men take on the ideal traits of masculinity (honor, protection, courage, etc.), while black men are imbued with the stark opposite qualities, perceived as crooked, dangerous, aggressive, and in need of being controlled. As other scholars have noted, black men are hypermasculinized and hypersexualized, and this has historically contributed to their vulnerability to white violence. White Heteropatriarchy. "[H]ierarchies of race, class, sexual orientation, and gender ..." all coalesce to delineate groups of women, as well as men, "as vulnerable to the violence of other men." Although Brown's death and the legitimization of his killing through the criminal justice system is made explicable as a function of racial violence, the codes of gender, class, and sexuality also explain the dynamics leading to his death as well as the grand jury's promotion, protection, and vindication of white hetero-patriarchal order. When highlighting the dynamics of power as it is raced, classed, and gendered, white heteropatriarchy refers to a racialized system of power and control based on compulsory heterosexuality, patriarchy, and an imposed gender-binary system.

Implicit Bias. Cynthia Lee defines implicit bias as "unintentional bias arising from attitudes or stereotypes that affect our understanding, decision-making, and behavior, without our even realizing it."' Implicit bias is the meaning we attach to objects and bodies in the unfiltered and unregulated mind. Implicit bias is the nanosecond associations of the black body with suspicion, dangerousness, and the need to be controlled and the equally immediate pairing of whiteness with innocence, righteousness, privilege, and the need to be vindicated. Through the lens of implicit bias, blackness is the evidence of evil and whiteness is the evidence of innocence. Implicit bias research demonstrates that pathology perpetually clings to the black body and innocence melds with the white body; thus, even where the white body is engaged in treachery, it is perceived as innocent and where the black body is engaged in innocence, it is perennially pathological. Even when a white police officer murders an unarmed black youth in broad daylight on a summer day in the middle of a well-traversed public street, implicit bias, which saturates both public and legal discourses, frames the white shooter as valiant and the black victim as demonic. Some discussions of implicit bias couch the term in innocent language and understandings, suggesting that it reflects mere ideas, not action; is lodged in the subconscious, where it cannot be controlled; is shared with black people (they have implicit bias too); and is reinforced by outside influence, as opposed to being conscious and willful. In contrast, I argue that implicit imperatives inform material reality, not the least of which those where people get shot. Implicit bias does refer to subconscious ideas, but these ideas also manifest as actions with consequences; moreover, social and structural inequality makes the implicit bias of some groups (such as police officers) more materially dangerous than that of others. Rather than focusing on the unconscious or non-volitional aspects of implicit bias, I focus on the concretization of implicit bias in legal structures - something we can and do have more control over. Investigations of officer-involved shootings, and in particular the grand jury procedure, should function to challenge and undo the effects of implicit bias, rather than enshrining such bias in law. Performance. Finally, I refer to the incidents under discussion, beginning with the shooting of Brown and stretching to include the investigation, prosecution, and failure to indict Office Wilson, as a "performance" of white heteropatriarchy. What does this mean, and how is it helpful for understanding the issues at hand? The notion of "performance" is crucial to feminist and queer theorizations of gender, and of gendered power. Specifically, theorists have suggested that gender, rather than being an essential trait of sexed bodies, is instead made "real" through repetitive social performance. Just as the notion of performance is crucial to understanding lived categories of race and gender, so too is it necessary to understanding law, which - beyond being a collection of codified rules - draws its power (and legitimacy) from procedural performance. Indeed, the social import of law comes in large part from its practice rather than from its mere codification. "Performance," therefore, describes a set of interrelated and simultaneous processes: the gendered and racialized performances of masculinity that are crucial to understanding Wilson's encounter with Brown; the performance of law and procedure during the investigation and grand jury proceeding; and the ways in which both sets of performances functioned to reiterate and reify social inequality as material expression of life and death.

. . .

In order to hide, obfuscate, and legitimize its operations, white heteropatriarchy enlists the institutional power of the police and the courts. In the case of unarmed shootings, police departments provide a platform to perform white heteropatriarchy. The grand jury process legitimizes the performance. The weight of white heteropatriarchy inverts order, reallocates the burdens of proof and persuasion, and turns the investigation and grand jury proceeding on its head. When it places its finger on the scales of justice, it inverts judicial order, such that predators emerge as preyed, villains become victims, and the murdered are deserving of their own death. Because it is ubiquitous, omnipresent, and entrenched, white heteropatriarchy necessitates the use of multi-disciplinary set of critical analytical tools to unlock, unmask, and deconstruct its operations in order to cast its function in sharp relief for purposes of judgment and correction. In the case of implicit bias, scholars should explore the possibilities of using cognitive testing to screen applicants in law enforcement.

Given this current moment of hyper-racism, typified in the meteoric rise of Donald Trump as the Republican Party nominee for President, these rituals of violence will occur with greater frequency, and if uninterrupted, will occasion the collective loss of our humanity as well as a criminal justice system plagued with diminishing moral authority. Given the enormous consequences, disruption of white heteropatriarchy as an operative in law enforcement and the judicial realm is mandatory.

 

Assistant Professor of Law, Wayne State University School of Law. B.A. Vassar College. J.D. University of Michigan School of Law. Assistant United States Attorney, 2005-2014, United States, Department of Justice.

 


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