Chokehold

by Paul Butler

  For many years, civil rights organizations like the NAACP were reluctant to address criminal justice issues. Thurgood Marshall, before he became the first African American on the Supreme Court, was the leader of the NAACP Legal Defense Fund. He allowed the NAACP to represent only innocent defendants.43 In 1943, a case came across his desk involving a sixteen-year-old African American boy who had been sentenced to death for rape and had tried to break out of prison. Marshall refused to represent him because the boy was “not the type of person to justify our intervention.”44 According to Harvard professor Randall Kennedy, this cautiousness was motivated by respectability politics: By “distanc[ing] as many blacks as far as possible from negative stereotypes used to justify racial discrimination against all Negroes,” civil rights organizations sought to strengthen the reputation of at least some African Americans and take away some of the rationale for discriminatory policies.45 All the mainstream civil rights organizations selected clients in the same way, which means that they largely stayed away from criminal justice issues, even though that was the site of some of the worst racism. The Black Panther Party was a major exception; advocating for criminal justice reform was one of its major platforms from its inception in 1966.46 Articles about police, intelligence agencies, and criminal justice dominated its newsletter, averaging about 30 to 40 percent of the content.47 Still, most black organizations wanted nothing to do with people who were not seen as respectable, especially criminals. In The New Jim Crow, Michelle Alexander calls out the “relative quiet” of the “civil rights community’s response to the mass incarceration of people of color.”48

  Things started to change in the 1990s. With one in three young black men catching a criminal case, the Chokehold could no longer be ignored. Some civil rights organizations began openly criticizing the war on drugs. Kweisi Mfume, the president of the NAACP, signed an open letter to the secretary general of the United Nations, calling for a public health rather than criminal approach to drug abuse.49 The campaign to end the sentencing disparity between crack and powder cocaine enrolled most of the major civil rights organizations, including the NAACP, the NAACP Legal Defense Fund, the ACLU, the National Council of La Raza, the Leadership Conference on Civil Rights, and the Lawyers Committee for Civil Rights Under Law.50 Now traditional civil rights organizations have also embraced the cause of reforming the police.51

  This leads to a suggestion about how labor might be employed in the most efficient way that capitalizes on various activists’ strengths and resources. Let the traditional civil rights organizations focus on liberal reform. Groups like the NAACP, the NAACP LDF, National Council of La Raza, Mexican American Legal Defense and Educational Fund, the ACLU, and the Center for Constitutional Rights should be at the forefront of advocating for these kinds of interventions. The movement for black lives, however, should focus on the broader-scale transformation, such as imagining and advocating for prison abolition.52 The final part of this book lays out some of the important work at hand.

  FOR RUNAWAY SLAVES ONLY

  This section is for the people who want to do more. It is for the radicals, the people who would have sat in at the lunch counters, the slaves who would have fought back, the folks who would have sheltered the runaways on the underground railroad, and the women and men who would have led the slave uprisings. You are the people who will do the most important work to unlock the Chokehold. You should not expect to be loved, admired, or even understood. Your heroic foremothers and forefathers were not either. In 1961, a Gallup poll asked Americans what they thought about demonstrations like sit-ins at lunch counters and freedom rides. Fifty-seven percent said it would “hurt the Negroes’ chances of being integrated in the South.” Only 28 percent said it would help. In 1963, a Gallup poll revealed that only 25 percent of citizens had a favorable opinion about the March on Washington. Shortly before Martin Luther King Jr. was assassinated in 1968, 50 percent of white people told Gallup that King was hurting the cause of Negro rights; only 36 percent said he was helping.53 History will be your judge, as it has been of the freedom fighters before you.

  If, as this book has suggested, the system is broke on purpose, as a means to control African Americans and devalue their lives, the system must be radically resisted and transformed. The movement for black lives is attempting to do so, but aspects of its resistance platform are under-theorized. This is not surprising in a social justice movement that is both new and explicitly decentralized in terms of leadership and decision making.54

  How do racially unjust law and policy change? The traditional view is that minorities are supposed to lobby Congress or bring court cases asking for civil rights. That only works sometimes. Historically, legislators and judges sometimes have remedied racist law, but other times they have established and enforced it, for example in laws that allow slavery and in the present-day police super power cases. The way democracy is practiced in the United States provides the majority with a lot of power to wreak havoc upon unpopular groups, and white people have used this tool to their full advantage. Judges are supposed to protect racial minorities from the tyranny of the majority, but the U.S. Supreme Court refuses to allow judges to do anything unless there is smoking gun evidence of racism.55 When the majority disguises its bias, or is not even aware of it, people of color get no protection from the Constitution. Harvard Law School professor Lani Guinier proposed some new models, based on how voting works on corporate boards, to allow minorities to have more influence, but this was considered so controversial the Senate refused to confirm her to head the Justice Department’s Civil Rights Division.

  Law is a tool. It can be used to enforce racism, and it can be used to try to remedy racism. The most infamous racist laws in the United States are laws that supported slavery and laws that enforced de jure segregation. Then the law changed, to abolition of slavery and segregation. Slavery, after almost 250 years, was outlawed by the U.S. Congress when it ratified the Thirteenth Amendment to the Constitution.56 The Supreme Court, however, receives the credit for ending enforced segregation, in Brown v. Board of Education.57 The struggle of African Americans, and many concerned others, to crush both the “peculiar institution” of slavery and Jim Crow segregation is well known and shall not be rehearsed here.

  Rather, I will make three observations, each toward an assessment of how and why the law changed from oppressing blacks to abolition. First, the end of slavery and legal segregation were brought about, in part, by violence and lawbreaking by abolitionists. There are important differences, though, in the course of conduct that accomplished the Thirteenth Amendment and that led to the Brown decision. Slavery was ended because of violence, and not just any violence but war, and not just any war but the Civil War—the bloodiest, most destructive conflict in American history.58 Prior to the War Between the States, abolitionists lobbied lawmakers and brought court cases and appealed to public sentiment. In the end, however, the brute force of rifles and bayonets was the most direct cause of the liberation of 4 million African American slaves. In comparison, ending legally enforced segregation was less bloody. The Supreme Court, in Plessy v. Ferguson, decided in 1896, declared that Jim Crow laws were constitutional.59 Early in the next century, a group of black lawyers, including Charles Hamilton Houston and Thurgood Marshall, began an effort to change the Court’s mind. This time the means of converting the law was not war but rather a carefully calculated series of legal arguments, made in state courts and designed, ultimately, to undermine the Supreme Court’s analysis in Plessy.60 This effort proved successful, eventually. The Supreme Court, in Brown v. Board of Education, decided in 1954, ordered the end of laws requiring segregation in public education.61 Next, civil rights leaders turned to the federal legislature. Their goal was a sweeping civil rights law that would eliminate the remaining vestiges of formal discrimination in the law. To influence Congress to pass such a law, traditional methods were employed, including lobbying and “horse trading.” In addition, some civil rights leaders encouraged breaking t
he law, through the practice of “civil disobedience.” People who subverted the law, for example, by disobeying laws that they believed were unjust, sometimes were treated violently by the police. Some extreme examples were prominently publicized and helped create the political climate that accelerated passage of the Civil Rights Act of 1964 and of the Voting Rights Act of 1965.62

  The second observation is that the first two abolitions took a long time. Although the evil of slavery and segregation seems obvious now, changing the law was a protracted and difficult struggle. The fight to end slavery in the United States persisted for more than two hundred years; efforts to end American apartheid required, in the most charitable assessment, “only” one hundred years. During these centuries of struggle, millions of black people lived lives of unspeakable pain, waiting for relief from the political and judicial branches.

  The third point is that there has always been diversity of opinion in the minority community about ways to respond to oppressive laws, or indeed, even whether the laws are oppressive. Some African Americans did not feel insulted by the “separate but equal” statutes. Even among blacks who believed that the Jim Crow laws were racist, the idea of openly defying those laws was very controversial. Most African Americans, including southerners, did not engage in subversive tactics, like civil disobedience, that involved breaking the law. In fact, some blacks discouraged the tactic, because of legitimate concern about white backlash.63

  WHAT IS THE ROLE OF LAWBREAKING IN THE MOVEMENT FOR BLACK LIVES?

  In reference to you, colored people, let me say God has made you free. Although you have been deprived of your God-given rights by your so-called Masters, you are now as free as I am, and if those that claim to be your superiors do not know that you are free, take the sword and bayonet and teach them that you are—for God created all men free, giving to each the same rights of life, liberty and the pursuit of happiness.

  —Abraham Lincoln, speech to freed slaves

  Obama, change gon’ come or I’m gonna buy the whole hood [guns] on me.

  —Jay-Z64

  Activism by radicals invariably posits that unless there is change, there will be violence against the state. It’s not so much a threat as a description of the vulnerability of any oppressive institution. “What happens to a dream deferred?” the famous Langston Hughes poem asks. “Does it dry up like a raisin in the sun? . . . Or does it explode?”65 People in the movement for black lives should build consensus on what their comfort level is with lawbreaking and subversive tactics to create change. Without a strategy, there is a danger that the widespread anger at police in the black community could take a sinister turn.

  Several prominent hip-hop artists, for example, have imagined the possibility of fighting back as a response to police violence. In 2015, Kendrick Lamar, one of the most critically acclaimed hip-hop artists, appeared on the television program Saturday Night Live. His performance was just a few weeks after a grand jury had refused to bring charges against the police officer who killed Eric Garner by placing him in a chokehold. Lamar changed the lyrics to one of his songs to say, “I put a bullet in the back of the head of the police.”66 Eminem, the world’s best-selling hip-hop artist, has referred to himself as “the criminal cop killing, hip hop villain.”67 In “Shootout,” Nas describes taking the life of a police officer.68 Harvard recently named an endowed fellowship in Nas’s honor.69

  There’s a history here—of hip-hop artists whose characters spit homicidal lyrics about the police and who, far from ostracized, are embraced by the masses. In the late 1980s, Dr. Dre rose to fame with NWA’s “Fuck tha Police,” which fantasizes about the execution of a racist cop.70 Dre’s recent collaboration with Apple to market his Beats headphones positions him to be hip-hop’s first billionaire.71 A few years later, the band Body Count, fronted by hip-hop legend Ice-T, caused a huge controversy with its song “Cop Killer.”72 Ice-T responded by saying, “I’m singing in the first person as a character who is fed up with police brutality. I ain’t never killed no cop. I felt like it a lot of times. But I never did it.”73 Ice-T later portrayed a cop on Law and Order: SVU.

  It’s tempting to think of the enmity that hip-hop directs at the police as hyperbolic, consistent with the genre’s over-the-top, rambunctious ethos. But an essay by James Baldwin, published in 1960, reminds us that hip-hop’s message is as real as the streets. In “Letter from Harlem,” Baldwin described a cop patrolling the ghetto and “facing, daily and nightly, people who would gladly see him dead, and he knows it. There is no way for him not to know it; there are few things under heaven more unnerving than the silent, accumulating contempt and hatred of a people.”74

  The threat of violence, and other forms of lawbreaking, has animated a range of political and cultural responses to the police treatment of African Americans. After unarmed black men were killed in Ferguson, Baltimore, and Charlotte, for example, activists took to the streets, defying curfews, not obtaining permits, and destroying property, including police vehicles and privately owned businesses. After these acts, activists won some concessions, including federal intervention in Ferguson and prosecution of police officers in Baltimore.75 In this sense, the lawbreaking may have been productive.

  Belief in the moral righteousness of violence as a means of protesting and changing unjust laws is part of U.S. history. Violent protests of the Stamp Act (1765) and the Townshend Acts (1767) helped launch the American Revolution. After the war was won, Thomas Jefferson wrote, “God forbid we should ever be twenty years without such a rebellion. . . . And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. . . . The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.”76

  Steeped in the rhetoric of American rebellion, African American rebels have existed since slavery. Notable slave uprisings include the Stono Rebellion in South Carolina (1739), an attempted attack on New Orleans (1811), and the Nat Turner insurrection in Virginia (1831).77 Significantly, none of the American slave rebellions proved successful. Africana: The Encyclopedia of the African and African American Experience states, regarding the Nat Turner incident, “Like other slave uprisings in the United States, it caused enormous fear among whites but did not seriously threaten the slave regime.”

  One of the things we most remember about activists in the last major racial justice campaign in the United States is their stance on violence. Martin Luther King Jr. and his followers famously advocated nonviolence. At the same time, Malcolm X and black nationalist formations like the Black Panther Party embraced self-defense “by any means necessary” and specifically disavowed the pacifism of King.78

  At what point is violence acceptable as a tactic for achieving racial justice? Is this a moral question or just a strategic one? Consider the case of Denmark Vesey. He was a free black man who attempted, in 1822, to organize a rebellion among South Carolina slaves. The plan was to burn the city of Charleston, kill the whites, steal ships, and escape to Haiti. The plan was thwarted by an informant, and thirty-five blacks, including Vesey, were executed. In 2001, the city of Charleston approved funds to erect a monument in Vesey’s honor.79 Some whites protested, but the South Carolinians who regarded Vesey as a hero carried the day.

  The Denmark Vesey case reveals an interesting disjunction between morality and efficiency. Denmark Vesey’s plan was surely impractical; no American slavery rebellion ever was successful. Yet Vesey’s inefficiency does not seem to have negated his heroism.

  The Chokehold, however, is a different kind of injustice than slavery. It may be that violence, including violence against civilians, is morally permissible to combat extraordinary racial discrimination (for example, slavery or genocide) but not “ordinary” racial subordination, like the ways that African American people are policed and jailed. Would violence be acceptable if the majority of African American men were incarcerated? When, if ever, does the subordination caused b
y the Chokehold reach the point where African Americans can make a morally justifiable decision to “live free or die”?80 These are questions with which the movement for black lives must seriously engage. I want to suggest that violence against police officers, or any other persons, is unjustified, on moral grounds and because it would hurt the movement. Understanding the role of lawbreaking in overturning the old Jim Crow, however, should inspire a more open-minded perspective on other kinds of resistance, including civil disobedience, demonstrations at police stations and prisons, and disruptions of organizations and alliances that benefit from the Chokehold.

  DONALD TRUMP AND THE “PRODUCTIVE APOCALYPSE”

  Our great African American President hasn’t exactly had a positive impact on the thugs who are so happily and openly destroying Baltimore!

  —Donald Trump tweet, 12:38 a.m., April 28, 2015

  In The New Jim Crow, published in 2010, Michelle Alexander wondered about the implications of the recently elected Barack Obama. On the one hand, it was “an extraordinary opportunity.” On the other hand, there were aspects of Obama’s record that raised alarm, including his appointments of Vice President Joe Biden and Chief of Staff Rahm Emanuel, who had been enthusiastic supporters of the war on drugs. In addition, Alexander worried that African Americans “who are most oppressed by the current caste system . . . may be the least likely to challenge it, now that a black family is living in the White House.”81