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Excerpted from: I. Bennett Capers, Afrofuturism, Critical Race Theory, and Policing in the Year 2044, 94 New York University Law Review 1 (April, 2019) (331 Footnotes) (Full Document)


IBennettCapersBy 2044, the United States will likely be a "majority-minority" country, with people of color making up more than half of the population. And yet in the public imagination--from Robocop to Minority Report, from Star Trek to Star Wars, from A Clockwork Orange to 1984 to Brave New World--the future is usually envisioned as majority white. What might the future look like in the year 2044, when people of color make up the majority in terms of numbers, or in the ensuing years, when they also wield the majority of political and economic power? And specifically, what might policing look like? This Article attempts to answer these questions by examining how artists, cybertheorists, and speculative scholars of color--Afrofuturists and Critical Race Theorists--have imagined the future. What can we learn from Afrofuturism, the term given to "speculative fiction that treats African-American themes and addresses African-American concerns in the context of ... technoculture?" And what can we learn from Critical Race Theory (CRT) and its "father" Derrick Bell, who famously wrote of space explorers to examine issues of race and law? What do they imagine policing to be, and what can we imagine policing to be in a brown and black world?

As should be apparent by now, this is not a typical law review article, identifying a discrete problem in the law and offering a normative solution. This Article aspires to accomplish something different, and in a sense, more ambitious. Rather than imagining how things could be different in the near term, this Article imagines how things could be different decades from now. It offers not just a vision of the future, but something truly visionary.

To be sure, there have been a handful of speculative legal articles before. There is George Thomas's oft-cited article Time Travel, Hovercrafts, and the Framers. And there is Derrick Bell's The Space Traders. There was once even a vibrant movement to usher in a decidedly new type of scholarship--futurist scholarship--to engage seriously with nascent and yet-to-be technologies with the goal of imagining the distant future, and the law's role in that future. While my hope is that this Article will revive interest in futurist scholarship, my particular interest is in a subset of futurism: Afrofuturism. There are two reasons for this. One, most artistic visions of the future have been majority white, and given projected demographic shifts showing that America will likely be majority minority by the year 2044, it makes sense to consider how black and brown people have imagined the future. As one commentator has noted, "while our collective imaginings too often fall far short of a convincing alternative future, Afrofuturism has been proposing ways forward for decades." The second reason is more personal. Like Patricia Williams, I readily acknowledge that "subject position is everything in my analysis of the law." Afrofuturism, like Critical Race Theory, speaks to me as a black man. Indeed, one could even argue that my blackness invites speculation. As one writer put it:

The very idea of a global African diaspora creates the most fertile of grounds for a field of what-ifs. What if European enslavers and colonizers had never ventured into the African continent? More intriguing yet: What if African nations and peoples had successfully rebuffed generations of plunder and theft? What if the Zulu had won the wars against the Voortrekkers and the British, and a confederation of Bantu people had risen up and smashed Belgian rule? What if the Transatlantic children of the mother continent had been allowed to remain, building their empires with the bounties of the cradle of civilization?

There are a few more points to make before this Article begins in earnest. First, because this Article is what I term "futurist legal scholarship," and indeed "Afrofuturist legal scholarship," many of its references are also futurist, and therefore are atypical for a traditional law review article. Already there have been references to Star Trek and Minority Report. There will also be references to the Afrofuturist jazz artist Sun Ra, to Afrofuturist novelists Octavia Butler and Samuel Delany, to the Afrofuturist "cyber-soul" singer Janelle Monáe, and one of the most well-known examples of Afrofuturism, the groundbreaking film Black Panther.

This Article also relies heavily on those other minority visionaries, Critical Race Theorists. Indeed, this Article is indebted to CRT in two respects. First, Critical Race Theory has not only challenged the substance of legal scholarship. It has also "contest[ed] the very language of mainstream legal and social analysis," arguing that a preference for neutral, disengaged, unraced, and unsexed voices in legal scholarship reifies a baseline that is both white and male. To challenge this preference, Critical Race Theory embraces the notion of "grounding a scholarly voice in the material, aesthetic, emotional, and spiritual experiences of people of color." Second, Critical Race Theory embraces storytelling as a way to interrogate the law and enrich the scholarly conversation. This Article does precisely that by imagining the future. In short, this Article is storytelling, and Critical Race Theory, in practice.

This still leaves open a question: Why focus on policing? It is my hope that there will one day be Afrofuturist articles considering a range of legal issues that may matter in the year 2044 and beyond, from affirmative action for whites to changes to the Voting Rights Act to ensure that whites are still represented. While those issues receive passing mention in this Article, ultimately the focus is on policing, criminal law, criminal procedure, and technology. I chose this focus in part for selfish reasons: I am a criminal justice scholar who writes about technology, so these are areas I know well. But, as a black man, I also chose policing because it is here, more than in any other area of the law, that "race matters." Indeed, to a certain extent, many of the problems that plague the criminal justice system-- mass incarceration, over-criminalization, and capital punishment, to name just a few--are only intelligible through the lens of race. How might these problems be addressed when people of color hold the keys to the courthouse and the prison? What can Afrofuturists and Critical Race Theorists tell us about what is likely to be decriminalized, and what "innocent" acts will in the future be deemed criminal? Or how the criminal procedure amendments--our "code of criminal procedure" be interpreted? Or about punishment, and even the abolition of prisons? This Article attempts to answer these questions.

This Article proceeds as follows. Part One provides an overview of Afrofuturism and some of its core concepts.

Part Two provides an overview of Critical Race Theory.

Part Three uses Afrofuturism and Critical Race Theory to imagine the future; specifically, how a range of criminal justice issues--from what constitutes a crime, to what technologies are deployed by the police, to how we punish--may be different in the year 2044, when this country becomes majority minority, and in the years beyond when the numerical power of black and brown people is matched by their economic and political power.

[. . .]

The ambition of this Article has been to imagine policing in the year 2044 and beyond when whites are no longer a majority in this country; black and brown people are. But it has not just imagined any black and brown future. It has imagined a future informed by Afrofuturism and Critical Race Theory.

To be sure, important questions remain. How do we prepare for this brown and black future? Or more specifically, how do we prepare for policing in the year 2044 and beyond? And how do we make sure a black and brown America does not simply replicate the inequality in policing that exists now? Just beneath the surface of these questions are others still. Given that “power concedes nothing without a demand,” and given the fact that efforts to limit democratic participation by minorities seem to be at full-throttle, how do we ensure that a majority-minority country will even matter? Add to this another question: Given the very constructedness of race, how do we ensure that whiteness itself is not simply redefined--with the goal of preserving racial privilege--to include more people so that whites maintain majority status? Put differently, how do we ensure that white privilege (or gender, class, or sexuality privilege), like the “mythic multi-headed hydra,” is not simply reconfigured? Do we counter this with a racial alchemy of our own, our own race construction, to build and nurture bonds of interests with whites, such that racial phenotypes become less important than a particular way of viewing the world?

Other questions linger still. How do we make a reality what CRT scholars and fellow travelers have long called for, a Third Reconstruction that would “merge 'we’ and 'they’ while eliminating the role that whiteness and blackness play in determining who belongs and who does not”? A Third Reconstruction that could forge “a world in which the theory of race ha[s] been debunked once and for all, and universal humanity and brotherly love would reign as the supreme values undergirding our Constitution, our communities, and our lives”? And to quote a few Afrofuturists, how do we ensure “one nation under a groove” and “embrace diversity” without resorting to a “motherfuckin' pussy riot”?

In short, how do we ensure a vision that, consistent with Afrofuturism and CRT, aspires to “make America what America must become” egalitarian, responsive to needs of all of its citizens, and truly democratic in all respects, including its policing”? The answer I offer may seem inadequate to some, but it is the only honest answer: This Article offers a vision of the future. Another article--about resistance, about the long game--must chart a route there. But rest assured, America will become majority minority. The year 2044 is coming. After all, nothing, not even the technoculture of Afrofuturism, can stop time. What else? “Oh, and you'll need sunglasses, really cool sunglasses.”

I. Bennett Capers, Stanley A. August Professor of Law, Brooklyn Law School. B.A. Princeton University; J.D. Columbia Law School.