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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)

Frank Rudy CooperAn 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.