by Paul Butler
THE CHOKEHOLD AND BLACK MEN
Let’s keep it real. Many people—cops, politicians, and ordinary people—see African American men as a threat. The Chokehold is the legal and social response. It contains a constellation of tools that are used to keep them down—including a range of social practices, laws, punishments, and technologies that mark every black man as a thug or potential thug. The state—especially the police—is authorized to control them by any means necessary.
One of the consequences of the Chokehold is mass incarceration, famously described by Michelle Alexander as “the New Jim Crow.”16 The Chokehold also brings us police tactics such as stop and frisk, which are designed to humiliate African American males—to bring them into submission.17 But the Chokehold applies to all African American men, not only the brothers who are locked up or have criminal records. It is insidious enough that it clamps down on black men even when there are no cops around. The Chokehold demands a certain kind of performance from a black man every time he leaves his home. He must affirmatively demonstrate—to the police and the public at large—that he is not a threat. Most African American men follow the script. Black men who are noncompliant suffer the consequences.
If you are the parent of a black boy, one of the most important decisions you make is when you tell them about the Chokehold. You don’t want to scare them, but the Chokehold is literally a matter of life and death.
The people who carry out the Chokehold include cops, judges, and politicians. But it’s not just about the government. It’s also about you. People of all races and ethnicities make the most consequential and the most mundane decisions based on the Chokehold. It impacts everything from the neighborhood you choose to live in and who you marry to where you look when you get on an elevator. I like hoodies but I won’t wear one, and it’s not mainly because of the police. It’s because when I put on a hoodie everybody turns into a neighborhood watch person. When the sight of a black man makes you walk quicker or check to see if your car door is locked, you are enforcing the Chokehold.
You are not alone. As an African American man, I’m not only the target of the Chokehold. I’ve also been one of its perpetrators. I’ve done so officially—as a prosecutor who sent a lot of black men to prison. I represented the government in criminal court and defended cops who had racially profiled or used excessive force. Many of those prosecutions I now regret. I can’t turn back time, but I can expose a morally bankrupt system. That’s one reason I wrote this book.
But before I get too high and mighty, you should know that I’ve also enforced the Chokehold outside my work as a prosecutor. I am a black man who at times is afraid of other black men. And then I get mad when people act afraid of me.
Other times I have been more disgusted or angry with some of my brothers than scared. I read the news articles about “black-on-black” homicide in places like Chicago and Los Angeles. I listen to some hip-hop music that seems to celebrate thug life. And as a kid I got bullied by other black males. Sometimes I think if brothers would just do right, we would not have to worry about people being afraid of us. I have wondered if we have brought the Chokehold on ourselves.
In order for African American men to have better outcomes, they have to learn how to navigate the system. The Chokehold is “the system” for black men. It is their government, far more than the president or the mayor. Still, most people have no idea how the Chokehold works. This book will break it all down.
Maybe you are just an ordinary person who is sometimes afraid of black men. You’re not a racist, but you need to know the facts. This book is going to give you the information you need, including real talk about the kinds of crimes that African American men commit and the ways that we as a society can respond.
This book is also for people who want to understand how the criminal process really works—from an expert who has been deep in the system on all sides. In my years as a prosecutor, I learned some inside information that I am now willing to share. Some of it will blow your mind, but I don’t feel bad for telling tales out of school. I was on the front lines in carrying out the Chokehold. Now I want to be on the front lines in helping to crush it.
My creds to write this book don’t come just from my experience as a law enforcement officer, my legal training at Harvard, or the more than twenty years I have spent researching criminal justice. I learned as much as an African American man who got arrested for a crime I did not commit—during the time that I served as a federal prosecutor. I didn’t beat my case because I was innocent, even though I was. I beat my case because I knew how to work the system. In chapter 7 I share those tips. If you have caught a case, it may be information even your own lawyer has not provided you. When the law is stacked against you—and because of the Chokehold, it is—you have to do whatever you can to fight back.
The Chokehold is perfectly legal. Like all law, it promotes the interests of the rich and powerful. In any system marked by inequality, there are winners and losers. Because the Chokehold imposes racial order, who wins and who loses is based on race.
White people are the winners. What they win is not only material, like the cash money that arresting African Americans brings to cities all over the country in fines and court costs. The criminalizing of blackness also brings psychic rewards. American criminal justice enhances the property value of whiteness.
As the Chokehold subordinates black men, it improves the status of white people. It works as an enforcement mechanism for keeping the black man in his place literally as well as figuratively. Oh the places African American men don’t go because of the Chokehold. It frees up urban space for coffeehouses and beer gardens.
But it’s not just the five-dollar latte crowd that wins. The Chokehold is something like an employment stimulus plan for working-class white people, who don’t have to compete for jobs with all the black men who are locked up, or who are underground because they have outstanding arrest warrants, or who have criminal records that make obtaining legal employment exceedingly difficult. Poor white people are simply not locked up at rates similar to African Americans. These benefits make crushing the Chokehold more difficult because if it ends, white people lose—at least in the short term. Progressives often lambast poor white people for voting for conservative Republicans like Donald Trump, suggesting that those votes are not in their best interests. But low-income white folks might have better sense than pundits give them credit for. A vote for a conservative is an investment in the property value of one’s whiteness. The criminal process makes white privilege more than just a status symbol, and more than just a partial shield from the criminal process (as compared to African Americans). By reducing competition for jobs, and by generating employment in law enforcement and corrections, especially in the mainly white rural areas where prisons are often located, the Chokehold delivers cash money to many working-class white people.
The Chokehold relegates black men to an inferior status of citizenship. We might care about that as a moral issue, or as an issue of racial justice. But honestly many people will not give a damn for those reasons. African Americans have been second-class citizens since we were allowed—after the bloodiest war in U.S. history and an amendment to the Constitution—to become citizens at all.
In the standoff between African Americans and the police, U.S. presidents have sided with the cops. For the last fifty years, every man who has been elected president has taken steps during his campaign to send a message to voters that he will be tough on black men. Richard Nixon watched one of his campaign ads warning voters about urban crime and exclaimed, “This hits it right on the nose. It’s all about law and order and the damn Negro–Puerto Rican groups out there.” Ronald Reagan complained about criminal fraud by “strapping young bucks” who used food stamps to buy T-bone steaks. Campaigning for president in 1976, Jimmy Carter spoke out against forced integration, saying, “The government should not take as a major purpose the intrusion of alien groups into a neighborhood just to establish their intrusion.”
George H.W. Bush ran a television ad featuring William Horton (Bush’s campaign called him “Willie” although Horton never went by that name), a black man who raped a white woman while on a furlough from prison in Massachusetts. Bush’s campaign manager, Lee Atwater, said, “By the time we’re finished they’re going to wonder whether Willie Horton is Dukakis’ running mate.”
President Bill Clinton left the campaign trail to oversee the execution of Ricky Ray Rector, a black man who was so intellectually disabled that when the correctional officer came to take him to the death chamber Rector set aside the pecan pie he had ordered for his last meal because he was “saving it for later.” George W. Bush, soliciting the endorsement of the Fraternal Order of Police, complained about Justice Department investigations of police departments, saying as president he would support cops “rather than constantly second guessing local law enforcement decisions.” During his first presidential campaign, Barack Obama mocked “gangbangers,” saying they are so lazy they ask “Why I gotta do it? Why can’t Pookie do it?” During the 2008 campaign, the Supreme Court ruled that it was unconstitutional to execute people for rape—even of a child. Obama criticized the decision, indicating that he would have voted with the conservative justices Antonin Scalia and Clarence Thomas to uphold the death penalty in such cases. As a former law professor, Obama had to know that historically African American men were virtually the only people executed for rape. Donald Trump, answering a question in a debate with Hillary Clinton about what he would do to bridge the racial divide, said, “We need law and order. If we don’t have it, we’re not going to have a country. . . . We have a situation where we have our inner cities—African Americans, Hispanics are living in hell because it’s so dangerous. You walk down the street, you get shot.”
Once in office, the presidential record has been mixed. Bill Clinton endorsed a crime bill that created federal “three-strikes” laws and allocated $16 billion to build new prisons and put thousands of police officers on the street. But George W. Bush frequently spoke of the importance of showing compassion to people returning to their communities after serving time in prison. Barack Obama went further than any president before him. He was the first sitting U.S. president to visit a prison. He commuted the sentences of more than 1,300 inmates, far more than any president before him. Obama established the “President’s Task Force on 21st Century Policing” and his Justice Department investigated over twenty local police departments.
But in the main, the U.S. criminal process carried on during the Obama era was as violent and harsh as ever. The policing commission’s recommendations were largely ignored by the nation’s 18,000 police departments. Obama’s commutations were only a fraction of the people who were potentially eligible; his first pardon attorney resigned in protest because the White House did not give her the resources to properly consider all who were eligible.
But something significant did happen during Obama’s time in office. A movement rose up. A movement that has the potential to transform the United States as profoundly as the abolition of slavery and the dismantling of Jim Crow. The movement for black lives ascended as a response to an endless roll of videos of police shooting African American people. The killings themselves certainly were not new, but the widespread dissemination of the images of state-sponsored violence against American people was. The Chokehold is far from the only marker of racial inequality but for African American men it is the worst. In a few years, white people will be a minority in the United States. This certainly does not mean that white racial dominance will end, but the demographic shift will make the racial hierarchy plain, and ultimately more vulnerable.
Everyone who has a stake in the future of the United States must be concerned about the Chokehold. You could say that the Chokehold threatens our democracy, or, alternatively, you could say that the Chokehold is constitutive of our democracy. Either way it is destabilizing. While politicians worry about ISIS and al-Qaeda, legal violence by our own government poses a greater threat to the future of this country—and certainly to individual black men—than illegal violence by terrorists.
The political scientist Lisa Miller has described the United States as a “failed state” for African Americans.18 Indeed some activists involved in the movement for black lives speak of their work as creating a “Black Spring,” similar to the Arab Spring movements that attempted to bring democracy to some Middle Eastern countries.19
We face a crucial choice. Do we allow the Chokehold to continue to strangle our democracy and risk the rebellion that always comes to police states? Or do we transform the United States of America into the true multiracial democracy that, at our best, we aspire to be? This book is about the urgency of transformation. All of the people will be free, or none of them will. “All the way down, this time.”20
1
Constructing the Thug
American criminal justice today is premised on controlling African American men. Many other people—including African American women, immigrants, poor white people, Muslims, and Native Americans—are caught in its snares, but they are collateral damage of a process that is designed for black men. This obviously does not blunt the pain that the system has caused people other than African American men. Collateral damage is as destructive as any other kind of damage. The point is that black men are the reason why police and prosecutors have so much power in the first place.
Fear and anxiety mark our daily interactions with African American men. Many people see them as a threat. Police, lawmakers, and judges step up to make us feel safer by controlling those men by any means necessary, including by authorizing violent forms of policing and punishment, on a massive scale. The most problematic practices of American criminal justice—excessive force by police, harsh sentencing, the erosion of civil liberties, widespread government surveillance, and mass incarceration—are best understood as measures originally intended for African American men.
The Chokehold is a way of describing law and social practices designed to respond to African American men. It is a two-step process. Part one is the social and legal construction of every black man as a criminal or potential criminal. Part two is the legal and policy response to contain the threat—to put down African American men literally and figuratively. Think of these two parts as “garbage in/garbage out.” The “garbage in” is anxiety about black men that we internalize. The “garbage out” is law and policy based on this anxiety, which positions African American men as public enemy number one.
Americans of all races and genders are complicit in the Chokehold. Indeed African American men ourselves perpetrate the Chokehold even as we are its victims. Sometimes we are scared of each other, and other times we exploit the fear that people have of us. Some black men do things—such as commit violent crimes—that reinforce the stereotypes. Some cultural performances associated with black men—such as hip-hop music—also feed the fear of them. So does the fact that many of the best-known African Americans are professional athletes—men celebrated for their big black bodies. It is not so much that African American men endorse the thug construction as, accepting reality, we try to make it work for us. There are benefits, in a patriarchal society, to being perceived as hyper-masculine. But in the end, these benefits, for example “street cred” and a “bad boy” kind of sex appeal, are sorry compensation for the Chokehold’s crippling burden.
This chapter explains the first step of the Chokehold—the construction of the thug, based on the presumption that every African American man is a criminal. It is important to remember that this is a rebuttable presumption: African American men can do things to communicate that we are not dangerous. It would not be an understatement to say that the vast majority of black men engage in those kinds of performances every time we step out of the house. It’s also true that many people can and do treat individual African American men with respect and kindness. The Chokehold means, however, that conjuring up a criminal is part of how many Americans process encountering a black man. It’s an insta
nt reaction, a habit of mind, but one with tragic consequences.
WHAT WE SEE WHEN WE LOOK AT BLACK MEN
Some amazing new scientific research provides insight into how people perceive African American men. When people see black men they don’t know, they have a physical response that is different from their response to other people. Their blood pressure goes up and they sweat more.1 When a white person sees an unfamiliar black male face, the amygdala, the part of the brain that processes fear, activates.2 In one experiment, white people were shown photos of either a black, white, or Latino man. They were then directed to look at a Chinese alphabet character, like 屁, which would have been unfamiliar to them, and asked what they thought about it.3 People who had just seen a photo of a black male described the Chinese character in more negative terms than people who looked at photos of a white or Latino man. In computer exercises, people link the faces of white men with nice words like joy, love, and peace. They associate black male faces with bad words like nasty, evil, and awful.4 If asked to pair the black male faces with the nice words, it takes them longer. In another experiment, it took drivers twice as long to stop at a crosswalk for a black man as for a white man.5 Stanford researchers found that teachers favored harsher punishment when reviewing files for students with stereotypically black names like “Deshawn” or “Darnell” than for students with whiter-sounding names like “Jake” or “Greg.”6
These are carefully controlled studies done by scholars trained in research. But ordinary African American men report the same kinds of experiences. The writer John Edgar Wideman wrote an op-ed in the New York Times about an informal experiment he conducted for four years. It was based on his experience taking Amtrak twice a week between Providence, Rhode Island, and New York City. On Amtrak you can sit wherever there is an open seat. Wideman noted, “Almost invariably, after I have hustled aboard early and occupied one half of a vacant double seat in the usually crowded quiet car, the empty place next to me will remain empty for the entire trip.”7 The sports journalist J.J. Adande has described a similar effect on Southwest Airlines, which also has open seating. On planes that have three-seat configurations, if black men are in the window and aisle seats, and the middle seat is vacant, no white person will sit there, unless it is the only vacant seat on the plane. Adande says African American men love Southwest because they get extra legroom.8