Chokehold

by Paul Butler

  In the 1980s, longtime African American residents of the city often discussed “The Plan.” The Plan was a speculation that, at some point in the not too distant future, white people were going to realize low-income black people lived in the most desirable neighborhoods of the city with the best housing stock. The white people would then force out the longtime residents of these communities.

  When I first heard about the Plan, back in the 1990s, I thought it was a silly conspiracy theory. It was true that those neighborhoods were close to downtown, but they were marked by open-air drug markets and sex workers. And the homes might have looked good back in the day, but now they were broken down and rodent infested. That’s why poor people lived there; anyone who had a choice would prefer the tonier, mainly white communities like Georgetown and Cleveland Park, even if they were a farther commute to work and nightlife.

  Today the Plan is in full effect. Middle-class, mainly white people have pushed African Americans out of much of what used to be called “the inner city.” The police advanced this takeover by ratcheting up law enforcement against African American and Latino folks in a way that made white people feel safe.

  It’s not just a D.C. thing. One study looked at cities that are trying to attract a “creative class” to offset the decline of long-gone manufacturing jobs. In those cities, “order maintenance” arrests increase significantly.39 As neighborhoods in San Francisco became wealthier and whiter, calls to police for non-emergency reasons like reporting loitering increased almost 300 percent.40 The city actually created an app, Open311, that allowed the new residents to report public disorder by sending a photo and a map-based location.41 Gentrification has other criminal justice impacts as well, including what is known in Brooklyn as the “Williamsburg Effect.” As wealthier, educated people enter the city, they begin sitting on juries. When these individuals are on juries, they tend to trust the police more and the defendant less, which results in more convictions.

  The story of Ryan and the Jump Outs is one example of how the Chokehold advantages white people. The police help gentrifiers take over African American spaces. And to reinforce the point that black cops don’t necessarily make things better, it is interesting to note that in D.C., African Americans are actually overrepresented on the police force. For a long time, they made up about 70 percent of the Metropolitan Police Department officers, even though blacks are only about 50 percent of the population of the city. What Ryan, the Georgetown law student, observed was mainly young black men chasing other young black men out of neighborhoods to make the neighborhoods seem safe for white people.

  If you are white, this is an example of the kind of benefit you receive from the Chokehold. One of its functions is to enhance the property value of being white. Part of the return is psychic, but part of it has to do with cash money.

  Let’s look at some data:

  For every one hundred white women ages twenty-five to fifty-four, there are ninety-nine white men.

  For every one hundred black women ages twenty-five to fifty-four, there are eighty-three black men.42

  This amounts to 1.5 million missing African American men. They are missing primarily because of incarceration and early death. This means that one in every six African American men is absent from the economy during his prime earning years.43 The Chokehold reduces competition for jobs by removing hundreds of thousands of black men from the labor market.

  And it is not just the black men who are currently locked up, or those who have previously been locked up and now have criminal records. The Chokehold reduces the competition from virtually every black man. Devah Pager, a sociologist at Harvard, conducted studies in Milwaukee and New York to compare the experiences of black and white men seeking entry-level jobs. The study had two teams of black men and white men with identical resumes. The men applied for a wide variety of low-level jobs, including positions as couriers, telemarketers, and cashiers. In one team, the men told prospective employers that they had been incarcerated for a drug crime for eighteen months and listed their parole officers as a reference. In the other team, the men had no criminal records.

  At this point the reader will probably not be surprised to learn that the men with criminal records had a difficult time. The reader probably will not even be surprised to learn that the black men with the drug conviction had a more difficult time than the white men with the drug conviction. But the Chokehold is even more insidious than one might realize. The studies found that the black men without criminal convictions got about the same number of callbacks as the white men with criminal convictions.44

  CRUSHING THE CHOKEHOLD: THE INTEREST-CONVERGENCE THESIS

  One reason that it is important to understand who benefits from the Chokehold is that information helps inform a strategy to defeat the Chokehold. Derrick Bell was one of the founders of critical race theory, a school of jurisprudence that seeks to understand the relationship between law and racial justice. One of Bell’s insights was that people of color make progress through the law only when what they seek aligns with some interest that white people have. Bell called this theory “interest convergence.”

  So, for example, the legal historian Mary Dudziak has demonstrated that the old Jim Crow segregation ended in part because it made the United States look so bad on the world stage during a time when the country was engaged in the Cold War. The United States looked hypocritical lecturing the Soviet Union about liberty and equality when southern states required blacks to drink out of separate water fountains. In Brown v. Board of Education, some lawyers explicitly argued to the Supreme Court that they should end “separate but equal” in public schools to help burnish the country’s prestige. The Supreme Court credited that argument in its opinion.

  How might interest convergence work to defeat the Chokehold? The story of Eric Lotke, a labor union organizer in Colorado, points us to a way. Lotke had a tough job. He worked for a progressive union—the Service Employees International Union—that had a platform critical of mass incarceration. The problem was that some of the workers SEIU represents are prison guards.

  Correctional officers have been among the strongest advocates for tough-on-crime policies, not for public safety reasons but rather because incarceration guarantees their jobs. (The California Correctional Peace Officers Association, for example, might be the most influential lobbyist in the state and the main reason why California has one of the highest rates of incarceration in the world.)

  In Colorado, there was an opportunity to close some prisons, but Lotke had to get the correctional officers he represented to buy in. They were dead set against it. Lotke started small. He got the men to agree that the prisons that were housed in decrepit buildings that were falling apart should be shut down and the workers transferred to other institutions. Next, because crime in the state had been falling, the men agreed to a moratorium on hiring—this was actually good for them because it reduced competition for promotions and the like.

  Probably the most important thing Lotke did was talk to the men about their jobs. The men hated their work. Prisons are wretched places—loud, smelly, dirty, and violent—and to spend time in one, as an inmate or guard, drains the soul. When I was a prosecutor, whenever I had to go to a prison to interview a witness, the first thing I did when I left was go home and take a shower.

  Prisons are often built in rural, white communities, and, in terms of the money and benefits, they provide good jobs. Correctional officers have even more of a warrior mentality than cops. The NYPD’s slogan is “New York’s finest”; the NY correctional officers’ slogan is “New York’s boldest.” One effect is that there are generous pension plans to encourage early retirement, the idea being that a thirty-year-old makes a bolder warrior than a sixty-year-old.

  Lotke discovered that pretty much all of the COs were just trying to hang on until they reached fifty or fifty-five and became eligible for retirement benefits. If the COs were able to reach this point, they didn’t care what happened to the prison. Lotke got the
state to offer the COs other employment that would still allow them to retire at the same age as if they had remained employed by the prison. Early retirement and not having to work at a prison? Hell, yeah, said the COs. It was a win-win, and Colorado ended up closing some prisons with the blessing of its prison guards.

  There are things I don’t like about that story—it seems weird that you have to be nice to jailers in order to reform criminal justice—but it worked. This story demonstrates both the strength of the Chokehold—it puts cash money in the pockets of many people—and also its vulnerabilities. The challenge now is to articulate a way to defeat the Chokehold, given the psychic and economic rewards that it brings many people. The last chapter of this book begins this crucial task. But first, in the next chapter, I break down the obsession that cops have with black male bodies. Then, in chapter 4, I go to a place where progressives have been reluctant to tread: the problem of black male violence. Chapter 5 explores the ways that some programs designed to help African American men actually fall prey to stereotypes about black men. Chapter 6 explains why traditional legal and policy reforms will not resolve the Chokehold. Chapter 7 offers practical advice to African American men who are trying to avoid getting locked up and suggests ways that brothers who have criminal cases can have better outcomes. Finally, Chapter 8 imagines a world without the Chokehold and presents some suggestions about how to get there.

  3

  Sex and Torture: The Police and Black Male Bodies

  The officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and areas about the testicles, and entire surface of the legs down to the feet.1

  —Police Manual, 1954

  In an eight-block area of Brooklyn, New York, a neighborhood called Brownsville, the police conducted almost 52,000 stop and frisks over a period of about four years from 2006 to 2010.2 This was an average of one each year for every resident of this community.

  But the stops were not distributed randomly. Virtually all of the people stopped were young African American and Latino males. Men and boys fifteen to thirty-four years of age made up almost 70 percent of the stops. A young male citizen of Brownsville got seized and searched about five times a year.

  Less than 1 percent of these police detentions resulted in arrests. In other words, thousands of men and boys in this neighborhood were grabbed by armed agents of the state and then subjected to “a careful exploration of the outer surfaces of a person’s clothing all over his or her body,”3 even though 99 percent of the time, these people had committed no crime.

  Here’s what happens when you are stopped and frisked. You are walking to work on a Monday morning. The cop car stops suddenly, two men with guns jump out, and they order you to face the building and put your hands up. They put their hands roughly all over your body, one squeezes something in your pocket and asks you “what’s that?” You take out your asthma inhaler and show it to him. They pat you down one more time and then they just leave. They don’t apologize. Your neighbors are walking by, some looking at you sympathetically and others like they are wondering what crime you committed. You feel humiliated.

  Or you are going to visit your mom in the projects. The lock on the door to the lobby is always busted, and the buzzer to her apartment is broken too. You just hope the elevator is working because you don’t feel like walking up eight flights of stairs. Again. You open the door and enter the lobby. Four cops are waiting. You recognize a couple of them from your previous visits to the neighborhood. One officer asks where you are going. “To visit my mom,” you say. “Put your hands against the wall,” another cop says. “Why? I’m just going to visit my mom.” “Trespass” is the answer. You tell them, “I’m not trespassing.” They surround you. Now it’s a situation. You put your hands on the wall. They kick your feet to spread your legs wider. They make you take off your cap, they pat you up and down, they touch your private parts. Other people entering the building look away partly to preserve your dignity and partly because they hope that if they pretend not to notice the cops, the cops will pretend not to notice them. Nobody coming inside the building uses a key—it would be ridiculous because the lock is broken. The cops write you up a citation for trespass. One of the officers you have seen before pulls you aside and says when you go to court just bring proof of your mother’s address and the judge will dismiss the case. Then they let you go. You hate them with every fiber of your being.

  The police got the power to stop and frisk from a 1968 Supreme Court decision called Terry v. Ohio. The Court said cops can temporarily detain someone they suspect of a crime—that’s the stop, and they can “pat down” suspects they think might be armed—that’s the frisk. The “reasonable suspicion” standard that authorizes cops to stop and frisk is quite low. Even suspicion of a trivial offense like jaywalking, or spitting on the sidewalk, can give the police the authority to stop you. “Terry stops” are the most common negative interactions that citizens have with the police. Each year millions more people get stopped than arrested.

  For African American men, stop and frisk is a form of government. It is the most visceral manifestation of the state in their lives. Most black men have never been convicted of a crime. About half of black men get arrested at some point during their lives. But virtually every African American man gets stopped and frisked. Of my black male friends and colleagues between the ages of twenty and seventy, I don’t know one who hasn’t been.

  Stop and frisk is a central source of inequality, discrimination, and police abuse. It is a threat to democratic values. Yet stop and frisk has a strange prestige. It is the nation’s leading crime control policy—despite scant evidence that it actually works to make communities safer. During his 2016 presidential campaign, Donald Trump, responding to a question in a town hall about “black on black crime” said, “Well, one of the things I’d do . . . is I would do stop and frisk. I think you have to. We did it in New York. It worked incredibly well.”

  As a police tactic, stop and frisk has been widely embraced. The number of stop and frisks in New York has been reduced, as a result of protests and litigation. But police in cities across the United States, including Philadelphia, Chicago, Baltimore, and Los Angeles, have taken the practice to heights far beyond what the NYPD did. Stop and frisk has been described by a leading legal scholar as “a practically perfect doctrine.”4 In this chapter, I’d like to diminish that prestige by demonstrating how stop and frisk is violent and destabilizing.

  THREE WAYS OF FEELING A BLACK MAN

  What does it mean when police go around touching people who are, in the eyes of the law, innocent? Stop and frisks are brutal assertions of police dominance of the streets, communicating to African American men through “three ways of feeling a black man”—sexual harassment, torture, and even terrorism—that they are objects of disdain by the state. The three frames are not mutually exclusive categories: Sexual harassment bleeds into torture. Torture bleeds into terrorism.

  A NOTE ABOUT TERMS

  Words have power. In 1997, the Federal Bureau of Investigation implemented an email-monitoring system called “Carnivore.”5 The system was widely criticized in the press, and by privacy advocates, even though it did not provide the FBI with any new legal authority (agents still had to get a court order to target particular users). A colleague jokes that if the FBI had called the system “Fluffy Bunny,” rather than “Carnivore,” it would not have inspired the same level of concern.6 In fact, the FBI ultimately did change the name of the program, to “DCS1000.”7

  The police have not made the “Carnivore” mistake in embracing stop and frisk. The phrase connotes a slight intrusion, an inconvenience rather than a big deal. The Fourth Amendment to the U.S. Constitution regulates how the police can “seize and search,” and in Terry v. Ohio, the prosecution argued that being stopped and frisked is so minor, it doesn’t count as a search or seizure. But the Supreme Court “e
mphatically” rejected this notion:

  It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.8

  In this chapter, I will use the terms “stop and frisk” and “seize and search” interchangeably. The former is more familiar, but the latter more accurately conveys the “serious intrusion on the sanctity of the person.”

  STREET LAW AND RACIAL HUMILIATION: A BRIEF HISTORY

  The Fourth Amendment is the part of the U.S. Constitution that governs arrests. It requires that the police have “probable cause” before they “book” a suspect. But often cops are suspicious of people they don’t have grounds to arrest. Can those persons be detained—forced to stop and deal with the police—and searched, even if the police don’t yet know that they have committed a crime? Prior to 1968, the Supreme Court had not decided this issue. Up until that time, unless the police had grounds to arrest you, they were not supposed to hold you.

  But the law of the streets was quite different. The police had been conducting stop and frisks for decades before the Supreme Court got around to approving them in the Terry case. The practice began in the 1930s. When cops saw African Americans doing things they thought were suspicious—it could be driving an expensive car, socializing with white people, or just hanging out on the corner—police would routinely make them show identification and question them about where they worked and what they were doing.