Chokehold

by Paul Butler

  The radical critique has received a surprisingly favorable reception. Both Alexander’s The New Jim Crow and Coates’s Between the World and Me have been widely acclaimed. They were national bestsellers, both won NAACP Image awards, and Coates’s book also won the National Book Award. The movement for black lives has become an important force in progressive politics. Its members met with Democratic presidential candidates Hillary Clinton and Bernie Sanders.35

  The pop music star Beyoncé Knowles released a video for the song “Formation” that alluded to iconography of the movement, including the “hands up, don’t shoot” gesture that activists often make at protests.36 In protest of police violence against African Americans, the professional football player Colin Kaepernick refused to stand when the U.S. national anthem was played during games.37 Some other athletes joined him in these protests.38 These developments represent a new acceptance, if not mainstreaming, of racial ideology that is left of traditional civil rights discourse.

  CIVIL RIGHTS VERSUS BLACK LIVES MATTER

  These categories are not mutually exclusive. Barack Obama, for example, employed Crisis 1 when he gave the commencement address at Morehouse College, the prestigious African American men’s college. He said, “We know that too many young men in our community continue to make bad choices. And I have to say, growing up, I made quite a few myself. Sometimes I wrote off my own failings as just another example of the world trying to keep a black man down.”39

  Speaking after the decision by the grand jury not to bring charges against Darren Wilson in the shooting of Michael Brown, Obama invoked Crisis 3, saying, “We need to recognize that the situation in Ferguson speaks to broader challenges that we still face as a nation. The fact is, in too many parts of this country, a deep distrust exists between law enforcement and communities of color.”40

  But there are tensions between these explanations. In particular, I want to point out a tension between Crisis 3, the liberal/civil rights construct that focuses on police–community relations, and Crisis 4, the radical construct identified by the movement for black lives and the influential public intellectual Ta-Nehisi Coates, among others, that focuses on white supremacy.

  While Crisis 4 centers white supremacy, each of the other three articulations acknowledges some role of race-based subordination in creating the crisis. Probably people who subscribe to any of the frames would say that a significant contributing factor to the crisis is the concentration of poverty in African American communities.

  So, in the Crisis 1 black male culture frame, liberals, at least, blame the environment for over-determining the behavior of the African American men they critique. People who think law is under-enforced in black communities frequently point to the historic denial of “equal protection” of law and the current failure of the white majority to take black-on-black crime seriously.41 The “relationship between police and the community” frame, Crisis 3, frequently highlights implicit bias as an explanation for why police patrol African American neighborhoods differently.42

  Acknowledging that the problems are both complex and interrelated should cause advocates to understand that piecemeal solutions to the race and criminal justice crisis are unlikely to succeed. This understanding, in turn, could lead to two different responses.

  On the one hand, we could embrace incremental reform in all four areas—black male conduct; under-enforcement in African American communities; police–community relations; and white supremacy/anti-black racism—in the hope that incremental reforms are likely to have some effect on the problem, even if none will solve it.

  On the other hand, we could identify and focus on the root of the problem. If the root is concentrated economic disadvantage, the solution might be to advocate for more equitable distribution of wealth, rather than focus on policing. If the root is race discrimination, we could try to implement the most effective laws and practices to combat the discrimination. If the root is white supremacy, we could attack that problem at its core, as opposed to, say, promoting greater investments in inner-city communities.

  While the articulations may share some common understandings, there are also important tensions between them. In particular, I want to identify Crisis 3, the police–community relations critique, as liberal, and Crisis 4, the white supremacy critique, as radical.

  The civil rights interventions sought by liberals are intended to make the criminal justice system fairer. They address racial inequality in a narrow sense, to ensure that similarly situated people are treated the same, regardless of their race or ethnicity. They are especially focused on improving the perceptions of people of color about the police. For example, the Final Report of the President’s Task Force on 21st Century Policing begins with this quote from President Obama: “When any part of the American family does not feel like it is being treated fairly, that’s a problem for all of us.”43

  Elsewhere Obama made it clear that he does not think the problem is particularly widespread. After the grand jury failed to indict Ferguson police officer Darren Wilson for the death of Michael Brown, the president said: “There are still problems and communities of color aren’t just making these problems up. Separating that from this particular decision, there are issues in which the law too often feels as if it is being applied in a discriminatory fashion. I don’t think that’s the norm. I don’t think that’s true for the majority of communities or the vast majority of law enforcement officials.”44

  But if you believe, as many people in the movement for black lives do, that the police are the enforcers of a white supremacist regime, then having a good relationship with them is not a desirable goal. The radicals argue for broader forms of relief. Coates, for example, is a prominent advocate for reparations for African Americans.45 The Movement for Black Lives website states, “We believe that we can achieve, and will seek nothing less than, a complete transformation of the current systems, which make it impossible for many of us to breathe.”46 While liberals think reform is sufficient, radicals believe that until there is fundamental change in the structure of U.S. society, the problems will persist.

  Both proponents of the police–community relations and the white supremacy frames have looked to the law, among other things, to help achieve their agenda. In Ferguson, for example, people allied with the movement for black lives were among the strongest voices for prosecution of Officer Wilson, and for the intervention of the U.S. Department of Justice in the police department. The question I turn to now is whether reform can actually help, for the change that either liberals or radicals seek.

  RACIAL REALISM

  Our nation/empire was and is established and constituted through the plunder, extermination, and exploitation of human beings, rationalized and justified by racialization.

  —Charles Lawrence, University of Hawaii law professor47

  How much [does] a dollar cost?

  —Kendrick Lamar

  Problems in the criminal justice system are just one set of problems that African Americans face. Despite the civil rights movement of the twentieth century, African Americans still experience extreme inequality in almost every aspect of life. Because African American history is often presented in a “celebratory” narrative of forward progress, it is important, especially in light of the strong claims that follow, to focus on the depth of the inequality.48 Black people in the United States are not doing well. Their median net worth has gone down, not up.49 In 2013, the median white household had thirteen times the wealth of the median black household: the median net worth of a white household was $141,900 and the median net worth of a black household was $11,000.50 Between 1954 and 2013, the unemployment rate for black people has consistently been double the unemployment rate for white people.51 The disparity is similar for those with a college degree. In 2013, the unemployment rate for black college graduates between the ages of twenty-two and twenty-seven was 12.4 percent, compared to the overall unemployment rate of 5.6 percent for all graduates in the same age range.52 Racial discrimination is ag
ainst the law in the United States, but that law seems to have little impact on the lived experiences of black people.

  AN IPOD HELD BY A BLACK HAND

  Indeed, there is widespread evidence that African Americans face discrimination virtually every time they enter the marketplace. A 2012 study by the U.S. Department of Housing and Urban Development found that while the most blatant forms of housing discrimination, such as refusing to meet with a minority home seeker, have declined, other forms of discrimination still exist.53 African Americans who want to rent an apartment are informed about 11.4 percent fewer units and shown 4.2 percent fewer units than white renters.54 Blacks who try to purchase homes are told about 17 percent fewer homes and shown 17.7 percent fewer homes.55

  African Americans also encounter discrimination on the travel website Airbnb. The Twitter hashtag #AirbnbWhileBlack chronicles incidents where black travelers were initially denied a rental based on their profile picture or having an “African American–sounding name” but were subsequently granted a rental after changing their picture or name.56 A study conducted by Harvard Business School provided statistical backing to this phenomenon.57 Inquiries by guests with white-sounding names were approved by the renter roughly 50 percent of the time.58 However, inquiries by guests with black-sounding names were approved by the renter roughly 42 percent of the time. There was a 16 percent negative disparity in the acceptance rate for guests with black-sounding names.59

  Black applicants for employment are less likely to get callbacks than white applicants. A 2003 study found that applicants with white-sounding names needed to submit ten resumes to receive one callback, and applicants with black-sounding names needed to submit fifteen resumes to receive one callback.60 A study released in 2014 using additional metrics to separate data by the prestige of the applicant’s degree found similar results.61 White applicants from elite universities received responses 17.5 percent of the time and similarly situated black applicants received responses 12.9 percent of the time.62 White applicants from less selective universities received responses 11.4 percent of the time and similarly situated black applicants received responses 6.5 percent of the time. The disparity continued for salaries, with black applicants receiving offers approximately $3,000 less than white applicants.63

  A study of loans by the University of Chicago Booth School of Business found that requests from a profile with a black person in the profile picture were 25 to 35 percent less likely to receive a loan than profiles with a white person in the profile picture, even with similar credit ratings.64

  African Americans even encounter bias in a transaction as mundane as selling a used iPod. A 2013 study using classified ads featuring an iPod being held by either a black or a white hand found that black sellers received fewer and lower offers for iPods.65 Specifically, black sellers, compared to white sellers, received 13 percent fewer responses, 18 percent fewer offers, and offers that were $5.72 (11 percent) lower.66

  Small wonder there is a robust debate about exactly what good the civil rights movement did African Americans!67 Why has the law not worked better to remedy these problems? How much racial justice should African Americans ever expect?

  An important school of race theorists has attempted to answer these questions. Critical race theorists (“crits”) have made strong claims about race and the law. These claims resonate with the analysis of crisis 4, including the movement for black lives and the work of Ta-Nehisi Coates. I want to set out some of those claims and see how they might inform the project of police reform.

  THE LAW CREATES RACIAL HIERARCHY AND WHITE SUPREMACY

  Critical race theorists assert that the law “constructs race” by separating people into groups, assigning social meaning to these groups, and instituting hierarchical arrangements.68 Racial inequalities persist because race informs all areas of the law––“not only obvious ones like civil rights, immigration law, and federal Indian law, but also property law, contracts law, criminal law, and even [corporate law].”69 Legal institutions such as “legislatures and courts have served not only to fix the boundaries of race in the forms we recognize today, but also to define the content of racial identities and to specify their relative privilege or disadvantage in U.S. society.”70 For example, legal scholar Ian Haney López in his book Dog Whistle Racism cites a series of Supreme Court decisions from the late 1800s and early 1900s in which the Court defined various groups as white or nonwhite, a determination that carried important consequences for naturalization and citizenship.71 Racial beliefs “were quickly translated into exclusionary immigration laws.”72

  Critics built on the arguments of black nationalists like the Black Panthers and others who felt that allegedly neutral goals such as integration were actually imprinted with white cultural practices.73 As a result, so-called objective tests that rely on the determination of what a “reasonable person” would do could prove problematic. These insights loom large in the criminal justice context because, as we have seen, the Supreme Court’s adoption of “reasonableness” standards for stop and frisk and the use of deadly force have enabled police violence against African Americans.

  RACISM IS NEVER GOING AWAY

  While racial categories are dynamic, critical race theorists assert that racism74 is a deeply ingrained feature of American society. Devon Carbado and Daria Roithmayr write, “Racial inequality is hardwired into the fabric of our social and economic landscape.”75 Derrick Bell and others have argued that racism, rather than an unfortunate accident, represents an “integral, permanent, and indestructible component” of American democracy.76 Roithmayr has analogized white supremacy to a monopoly, in which “whites anticompetitively excluded people of color to monopolize competition, and then used that monopoly power to lock in standards of competition that favored whites.”77 Given the central role race has played in shaping allocation of societal resources, addressing racial injustice is not merely a matter of clearing up misconceptions through dialogue or adopting modest reforms.78

  The crits’ assertion of the durability of racism is a marked contrast to rhetoric, after the election of Barack Obama, about a “post-racial” or “color-blind” society. In acknowledging the extent to which racism is deeply ingrained in American society, critical race theorists posit a more systemic critique of legal institutions and policies than liberal advocates of improved police–community relations.

  RACIAL PROGRESS COMES AND GOES

  The dominant narrative of American race relations is one of forward progress. In this story, the United States has moved “from segregation to integration and from race consciousness to race neutrality.”79 Critical race theorists believe that the more accurate model is a cycle of reform and retrenchment. Charles Lawrence writes, “When people’s movements successfully challenge and disrupt racist structures and institutions, and contest the narratives of racial subordination, the plunderers will respond with new law.”80 One example is the passage of civil rights legislation. The civil rights movement of the 1950s and 1960s led to important developments like the Supreme Court’s decision in Brown v. Board of Education,81 the Civil Rights Act of 1964,82 and the Voting Rights Act.83 As Kimberlé Crenshaw points out, civil rights laws “nurtured the impression that the United States had moved decisively to end the oppression of Blacks.”84 However, the rhetoric of color blindness and equal opportunity was then deployed to block further remedial measures and “undermined the fragile consensus against white supremacy.”85 Now the Supreme Court has gutted the Voting Rights Act, often considered the most successful civil rights law, and weakened affirmative action.

  RACIAL PROGRESS OCCURS WHEN IT IS GOOD FOR WHITE PEOPLE

  Derrick Bell developed the theory of interest convergence, the notion that the United States has adopted racial justice measures only when “the interest of blacks in achieving racial equality . . . converges with the interests of whites.”86 For example, Bell cites global public opinion during the Cold War, the participation of black soldiers in World War II, and segregation
as a barrier to industrialization in the South as reasons for the Supreme Court’s decision in Brown v. Board of Education.87

  After the backlash to integration began taking root in the 1950s and 1960s, the Court turned away from robust enforcement and emphasized local autonomy, even though it would likely “result in the maintenance of a status quo that will preserve superior educational opportunities and facilities for whites at the expense of blacks.”88 These “second thoughts” about school desegregation reflected the “substantial and growing divergence in the interests of whites and blacks.”89

  FERGUSON AND THE CRITS

  The ideas from critical race theory help us understand why the crisis in criminal justice stems more from legal police conduct than illegal police misconduct. As discussed in chapter 2, many of the concerns about the police are about conduct that is legal. The problem is not as much “bad apple” cops as police work itself—what the law actually allows. That’s why even when police officers are charged with brutality, they are often found “not guilty.”

  The Justice Department’s Ferguson Report depicts a police department that is brutal and discriminatory. It found that bias against blacks affected “nearly every aspect of Ferguson police and court operations.”90 Ninety percent of the time that FPD officers used force, it was used against African Americans.91 Every single time they deployed a police dog to bite a suspect, the suspect was African American.92

  But the Ferguson Report was not the only report issued on March 4, 2015. The Department of Justice also issued a specific report about the shooting of Michael Brown, an unarmed African American teenager, by a Ferguson police officer, the “Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson Missouri Police Officer Darren Wilson,” referred to as the “Wilson Report.”93 There are some notable tensions between the themes of these two reports.