Chokehold

by Paul Butler

  But twenty years later, in 2000, as the Chokehold came into full effect, everything changed. The survey looked at the same cohort, and now guilty white people were less likely to be arrested, and innocent black people were more likely to be arrested.27

  KIDS, DON’T COMMIT YOUR MISDEMEANORS ON WEDNESDAYS!

  I’m not saying black men don’t disproportionately commit some kinds of crime. They do, and why that is and how the government and ordinary people should respond is the subject of chapter 4. The point here is that most of the crimes that African American men get arrested for—misdemeanors such as marijuana possession, fistfights, public drinking, and traffic infractions—are because the police are basically hunting them down and not because someone has called 911 about some real public safety emergency.

  One revealing example of this phenomenon is that in New York City more people get arrested for misdemeanors on Wednesday than any other day. Is that because more crime happens on Wednesday? No. That’s just the day when police staffing is highest.28

  So arrest rates don’t prove that African American men are more dangerous, because the vast majority of arrests are for minor offenses, and enforcement of those offenses is focused on black men.

  I know from arrests. In my book Let’s Get Free: A Hip-Hop Theory of Justice I tell the story of how I was arrested for a crime I didn’t commit. I’m still dealing with the psychological ramifications, but I’m lucky. It’s one thing to be arrested when you are a prosecutor, with sufficient legal and financial resources, and social capital, to fight the case. It’s another thing to be arrested when you are young and poor and don’t have much of a choice in who your lawyer is, and you look like the perp featured on the evening news every night. Chapter 7 features some real talk for brothers who face that dilemma.

  WHEN ACTUAL INNOCENCE OR GUILT ISN’T A BIG DEAL

  When I got arrested, I thought it would matter that I was innocent. It turns out, however, for misdemeanor arrests, whether you are innocent or guilty is not the most important thing.

  I got my first clue when I was in training to be a prosecutor. My supervisor encouraged us rookies to try different styles of presenting evidence to judges and juries. New prosecutors treat misdemeanor court like an advanced law school classroom—it’s where they practice to become better courtroom advocates. “Don’t worry if you win or lose the case,” my supervisor told us. “It’s only a misdemeanor—if the defendant is that bad, he’ll be back.”

  It turns out that was not just a joke. It’s criminal justice policy in the twenty-first century. African American men are not arrested to determine whether they have committed a crime. Rather it’s because of all the control the government has over its arrestees.

  When you get locked up, the police can do a full body search of you. They can look for whatever they want; the search does not have to be related to the offense for which you have been arrested. If you are arrested in your home, they can search the room where you are arrested, ostensibly to see if there is a weapon or evidence of the crime for which you are being arrested. The same rule applies to car searches when people get arrested in their vehicles. Anything the police come across as they conduct the search is fair game for the prosecution.

  This extraordinary power, called “search incident to arrest,” is one of the primary tools of an influential school of policing called “order maintenance” or “broken windows.” The idea is for the police to arrest people for low-level offenses like drinking in public, jaywalking, and riding a bike on the sidewalk—not because they really care about those “crimes” but because then they can search you to see if you have a gun or drugs.

  Order maintenance policing is almost exclusively directed at African American and Latino men. Brothers in New York know what it means if you are walking on the street drinking from a cup or plastic bottle and a cop approaches you. You are supposed to hand the cup or bottle to the cop so he or she can smell it to see if it contains alcohol. The purpose of this humiliation is that the cops are looking for an excuse to arrest you. The effect of this humiliation is to make you hate the police.

  In addition to giving cops the power to search, misdemeanor arrests serve to formally enroll black men in the criminal justice system. Arrests enable a set of surveillance practices. The police are allowed to take your photo, fingerprints, and blood, to look at everything in your pockets, to do a body cavity search if they are taking you to jail, to inventory the contents of your wallet, briefcase, and backpack, and to lie to you about evidence they have against you to try to make you talk. In New York City, they stick a camera in your eye to take an image of your iris. The point is to find out, in the words of Michael Jackson, “who’s bad.” The criminal justice system wants the DNA of black men, literally and figuratively, and, through arrests, it gets it—literally and figuratively.29

  Issa Kohler-Hausmann, a Yale law professor, spent years observing misdemeanor court in New York City and talking to judges, prosecutors, defense attorneys, and defendants. She found that prosecutors dismissed some cases when they had plenty of evidence that the defendants were guilty. Other times, they zealously went after defendants who were probably innocent. What made the difference is the number of contacts people had with the system. People who had misdemeanor convictions were more likely to get convicted again—even if the evidence against them was weak. By contrast, people who had fewer contacts frequently got their charges dismissed—even if the state had a good case. This effect was not seen in serious felony crimes, where evidence about actual guilt or innocence was more meaningful. In those cases, your record made a difference with regard to sentencing but not with regard to whether you got convicted.

  Kohler-Hausmann theorized that, with misdemeanor arrests, a kind of sorting process is going on. The state is trying to categorize African American and Latino men to see which ones need the closest watch. Contacts with the police are how prosecutors try to figure that out.

  The good news is that Kohler-Hausmann’s study debunks the conventional wisdom in the hood that prosecutors are trying to lock up every black man they can. It turns out they are actually trying to devise an efficient way to determine which ones, in their worldview, should be locked up. The bad news is that, in places like New York, whether or not you are guilty of a misdemeanor is not the most important criteria for whether you get punished for one. The system then becomes self-perpetuating. If you have one conviction you are more likely to get another, whether you are guilty or not. And even more likely the time after that.

  WHAT’S RACE GOT TO DO WITH IT?

  Imagine what we would feel and what we would do if white drivers were three times as likely to be searched by police during a traffic stop as black drivers instead of the other way around. If white offenders received prison sentences ten percent longer than black offenders for the same crimes. If a third of all white men went to prison during their lifetime. Imagine that.

  —Hillary Clinton

  Sometimes racism in the law is so obvious that it spits in your face. In some states the law allows African Americans to be given extra points on IQ tests, just so that they can be executed. In Adkins v. Virginia, the United States Supreme Court ruled that it was unconstitutional to execute people with intellectual disabilities. Prosecutors have devised a way to circumvent this requirement for developmentally disabled African Americans. They ask judges to add 5 to 15 points to the IQ scores of minorities under the guise that traditional IQ tests underestimate minority intelligence.30 This bumps up the IQ of black inmates enough for them to be executed. This isn’t just a crazy technique that was used once in a rural courtroom. It’s actually the law in a growing number of states, including Florida, Pennsylvania, Missouri, and Alabama.31

  But usually the white supremacy in criminal law is not so blatant. Most police and prosecutorial practices are formally color-blind but in reality are designed to target African American men. There is one system of justice in this country for them and other systems for other groups of people. In the
most comprehensive study ever done of how state judges sentence people, journalists at the Sarasota Herald Tribune looked at millions of records from every trial judge in Florida. Their report, published in 2016, found that when black defendants have committed the same crime under the same circumstance as white defendants, they get significantly more time. In half of the counties in Florida, African Americans get twice as much time as white people for identical offenses.

  The Herald Tribune article describes the case of Allen Christopher Peters, a seventeen-year-old white man, who used a gun to rob a gas station of about $640. The sentencing guidelines called for a minimum of four years, but Peters was sentenced to probation with no jail time. Jaquavais Sturgis, an African American teenager, appeared before the same judge. He was charged with armed robbery of a convenience store, netting about $300. Sturgis was charged with the same crime—armed robbery with a deadly weapon—as Peters, and had the same criminal background—three offense committed as a juvenile. Sturgis was sentenced to four years in prison.32

  The claim that the law places people in categories from which flow a certain set of practices is hardly unique to African American men. The law does or has done the same thing to women, immigrants, LGBT people, and Muslims, among others. And of course all of these categories intersect—some people are African American and female and foreign born and lesbian. The Chokehold is at the intersection of blackness and maleness, and it is about the social and legal response to that specific identity. This response is mainly horrific, but the violence of the law is not limited to black men. African American women aren’t doing any better overall, but criminal justice is not the primary instrument of their subordination.

  So the Chokehold is not a ranking of oppression or a race to the bottom. It is, though, a reckoning of how anxiety about African American men has created one of the harshest punishment regimes in the history of the world.

  As Figure 6 shows, the sweet spot is around one hundred people per 100,000 population. If there is a “natural” rate of incarceration, it seems to be there. That is where the United States has been most of its history, until the 1970s.

  By contrast, today white and Latino men in the United States experience extreme levels of incarceration, and the numbers for African American men are almost off the chart, as shown in Figure 7.

  FIGURE 6: INCARCERATION RATES PER 100,000

  The United States has the highest incarceration rate of any country in the world.

  Source: Roy Walmsley, “World Prison Population List, Eleventh Edition,” World Prison Brief, Institute for Criminal Policy Research, October 2015, www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_population_list_11th_edition.pdf.

  What happened? Did something in the water starting in the 1970s make people in the United States suddenly take a turn toward degeneracy? Hardly. What happened was that the United States began to use policing and punishment as a fundamental way to control the urban poor—especially black men. The same law that creates the Chokehold makes it very difficult to “prove” racial bias in criminal justice. To make a case requires extraordinary resources, and even then success is not guaranteed. For example, in order to document discrimination against African Americans by the Ferguson police department, the U.S. Justice Department investigation, in 2014–2015, included “100 person days on site in Ferguson,” and review of “35,000 pages of police records as well as thousands of emails.”33 An average citizen or even a community does not have the resources to do this kind of research and documentation, making it very difficult for a victim of bias to substantiate that kind of claim.

  FIGURE 7: U.S. INCARCERATION RATES BY RACE AND ETHNICITY, 2010 (NUMBER OF PEOPLE INCARCERATED PER 100,000 IN THAT GROUP)

  Black people are incarcerated at much higher rates than whites and Latinos.

  Source: Leah Sakala, “Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity,” Prison Policy Initiative, May 28, 2014, www.prisonpolicy.org/reports/rates.html.

  Likewise, persuading a federal district judge in New York that the NYPD’s stop-and-frisk program intentionally discriminated against African American and Latino men took a two-month trial, an endeavor far beyond the resources of most individuals who may feel they have been discriminated against. So the claim that American criminal justice is all about black men is like a lot of claims about racial subordination—at once obvious and hard to prove in a court of law. Here is what we know: whenever a harsh new criminal justice policy is implemented, researchers and activists predict that the practice will have an adverse impact on African Americans. Then that prediction comes true. Then the practice is continued, in spite of this problem.

  Former president Bill Clinton has suggested that if our criminal policies had the same adverse impact on white people that they have on black men we would change the policies. This is exactly what is happening with the emerging heroin and opioid epidemics. According to the American Medical Association, 90 percent of the people who have tried heroin for the first time in recent years are white.34 The problem has been especially severe in New England, in places like New Hampshire and Massachusetts. In contrast with the crack epidemic in the 1990s, which had a black face and led to harsh sentencing laws and harsher rhetoric about crackheads and “crack babies,” the new focus on heroin users is on getting heroin addicts medical care.

  The difference is so stark it recalls the classic Saturday Night Live sketch in which Eddie Murphy turns white and people give him stuff for free. In Gloucester, Massachusetts, you can walk into the police station carrying heroin and the cops don’t arrest you, they refer you to treatment. This is true of thirty-six other police departments as well.35

  Eric Adams, a police officer in Laconia, New Hampshire, is deployed to reach out to people who have overdosed on heroin and get them into a program. He used to be an undercover narcotics detective. He told the New York Times, “The way that I look at addiction now is completely different. I can’t tell what changed inside of me, but these are people and they have a purpose in life and we as law enforcement can’t look at them any other way.”36 Thirty-two states have passed “Good Samaritan” laws that prohibit prosecution of people who call the police to report overdoses.

  When crime has a black face, the reaction is quite different.

  In general, white people support harsher criminal justice policies than African Americans do, as Figures 8 and 9 show. Remarkably, if white people are informed that a policy has an adverse impact on blacks, it actually increases their support for it. So, for example, if white people are asked about their support for practices such as three-strike laws or trying children as adults and not cued about race, they provide one set of responses. If, however, they are asked about these practices and informed that the policies will have a disproportionate impact on blacks, it makes white people support the practices more. Studies have shown that whites who associate crime with people of color are more likely to support punitive criminal justice policies.37 For example, a 2002 survey found that white respondents who linked high crime rates to blacks were more likely to support lengthier sentences, harsh treatment of prisoners, and the death penalty. Similarly, another study revealed that whites’ support for “getting tough with juvenile offenders is in part tied to racialized views of youth crime.”38 This should not surprise us when we recall that 66 percent of whites told the Associated Press that “violent” is a good or excellent way to describe African Americans. The Chokehold is a function of the will of the people. It is the tyranny of the majority, and it has been remarkably effective at putting down black men.

  FIGURE 8: SUPPORT FOR DEATH PENALTY FOR PERSONS CONVICTED OF MURDER, BY RACE, 2013

  A large majority of whites, compared to only about one-third of African Americans, support the death penalty.

  Source: Pew Research Center, “Shrinking Majority of Americans Support Death Penalty,” Washington, D.C., March 2014, www.pewforum.org/2014/03/28/shrinking-majority-of-ameri
cans-support-death-penalty.

  FIGURE 9: SUPPORT FOR VARIOUS PUNITIVE MEASURES, BY RACE, 2000–2001

  Whites are more likely than African Americans to support three-strike sentencing laws and the prosecution of minors under rules typically reserved for adults.

  Source: Mark Peffley and Jon Hurwitz, Justice in America: The Separate Realities of Blacks and Whites (New York: Cambridge University Press, 2010), 152–53.

  RYAN AND THE JUMP OUTS: HOW THE CHOKEHOLD PRODUCES THE STARBUCKS NEAR YOU

  The Chokehold is how the system is supposed to work. When police who shoot unarmed black people go free, or when Michael gets locked up for telling the police his name is “Mike,” those are not faults in the process. That’s called criminal justice. Those are features integral to the system.

  Our “justice” system actually serves interests that are often obscured from view. This includes maintaining relationships of racial subordination and white privilege that are different from the system’s stated purpose of deterring crime and punishing wrongdoers. Ryan got a close-up view of this when he was a law student at Georgetown. He spent the summer interning at the local D.C. prosecutor’s office. Ryan was invited, by cops he worked with, to ride with the “jump out” squad. That is a team of plainclothes cops who roll up on a street in an unmarked van and suddenly jump out of the van to make arrests or interrogate suspects. If you don’t know what is going on, you just see a bunch of men in street clothes leave a vehicle and tackle somebody. It’s very rough policing, about which African American residents of D.C. have long complained.

  Ryan observed that the jump outs were focused in the many neighborhoods in the District of Columbia that are gentrifying. The police were engaged in a practice that made African Americans feel less welcome in neighborhoods that had been their home for decades.