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Excerpted From: Brandon Hasbrouck, Abolishing Racist Policing with the Thirteenth Amendment, 68 UCLA Law Review Discourse 200 (2020) (98 Footnotes) (Full Document)


brandonhasbroucksmBlack people and communities know that police racially terrorizing us is nothing new in America. We live in fear. Our ancestors lived in fear. We fear that our agency--our fundamental right to life, liberty, and the pursuit of happiness--can be taken by the police for any reason or no reason at all. We cannot carry out basic human activities without our lives being threatened--you know, anything while Black. Indeed, police violence is a leading cause of death for Black people in America. Though racist policing has recently become part of the mainstream discourse, in many ways, police are doing what they have always done. The institution of policing was designed to protect and serve the racial hierarchy blessed by the U.S. Constitution itself. But a string of U.S. Supreme Court rulings involving the Thirteenth Amendment offers the U.S. Congress a tool with which to fight institutions that have preserved social, political, and official norms associated with slavery's control and disparate treatment of Black people. It is time to call modern policing what it is: a badge and incident of slavery that Congress should abolish under the Thirteenth Amendment.

Abolition requires that we reimagine public safety and think about transformative, community-based measures. Short of fully eliminating police, abolition can embrace a greatly reduced role for police, with serious restrictions on their ability to initiate violence. There is no need to use police to deal with school disputes, most domestic violence cases, unhoused people, those who use controlled substances, or those who suffer from mental illness. Their roles enforcing municipal regulations and basic civil traffic violations, as well as the investigation of traffic accidents, could be better handled by separate government agencies. Police could still be responsible for investigating reported crimes, arresting people charged with crimes, and responding to reports of crimes in progress, including drunk driving--but all of these would be done unarmed. Armed police should be limited to responding to reports of armed and violent behavior in progress.

This Essay proceeds as follows.

In Part I, I provide a succinct overview of Thirteenth Amendment jurisprudence. The Supreme Court has made it clear that Congress has broad power under the Thirteenth Amendment to identify badges and incidents of slavery, and to provide appropriate remedies.

In Part II, I demonstrate the racist origins of modern policing and how the institution perpetuates structures of slavery. There, I contend that policing has been, and continues to be, about terrorizing and controlling the Black body--what I refer to as “racist policing”--and I trace the historical development of such practices from before the Thirteenth Amendment through the Jim Crow era to their modern forms.

Finally, in Part III, I argue that Congress must exercise its broad powers under the Thirteenth Amendment and propose several legislative measures that effectively abolish the current institution of policing while reimagining public safety. We must reclaim the Thirteenth Amendment as a source of respect and protection for Black lives.

[. . .]

Black lives have historically never mattered to police--we have always been the property, the subject, or the enemies of their war. It is time to abolish the institution of policing and replace it with true racial equality and justice. If Black lives actually matter, then Congress must look to the Thirteenth Amendment to implement radical changes in policing. Perhaps this is Thirteenth Amendment Optimism. Perhaps this is our chance to call on our democratic institutions to affirm Black humanity. Until then, as Colson Whitehead lamented in The Nickel Boys, “[e]ven in death [we all should be] trouble[d].”

Assistant Professor of Law, Washington and Lee University School of Law.

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