Chokehold

by Paul Butler

  In large part, Alexander’s concerns were prescient. As we have seen, the United States did not make as much progress on racial justice during the Obama presidency as many had hoped. Obama was not pressured by civil rights organizations because black leaders did not want to be seen as piling on to the considerable pushback he got from racists who were unhappy to see an African American chief executive.

  Now, as for all but eight years of U.S. history, a white family is back in the White House. There were stark differences in the appeals to voters made by Donald Trump and his Democratic challenger Hillary Clinton. Clinton realized she needed a strong turnout of African American voters to help defeat Donald Trump, who, like every Republican candidate for the previous fifty years, was likely to receive the majority of the white vote. Yet Clinton was regarded with suspicion by some in the African American community, especially young people inspired by the movement for black lives. She was seen as complicit in President Bill Clinton’s endorsement of policies that, during the 1990s, helped create mass incarceration. Most infamously, in a move right out of the Chokehold handbook, Hillary Clinton warned the nation, in 1996, about “the kinds of kids that are called ‘super-predators.’ . . . No conscience, no empathy, we can talk about why they ended up that way, but first we have to bring them to heel.”

  So it was no surprise that during the primary campaign of 2016, Clinton was called to task. Movement activists interrupted her rallies and fund-raisers. Leading public intellectual Ta-Nehisi Coates announced he was voting for Bernie Sanders, Clinton’s rival in the Democratic primary, because he was “very, very concerned” about Clinton’s record during her husband’s presidency.82 Michelle Alexander wrote an article for The Nation titled “Why Hillary Clinton Doesn’t Deserve the Black Vote.”83 During the general election, some activists even floated the idea that a Trump victory would be a “productive apocalypse” because it would inspire a people’s revolution.84

  In response, Hillary Clinton embraced the movement. She uttered the words “black lives matter” well before even Barack Obama did.85 Clinton campaigned with the “Mothers of the Movement,” African American women who had lost children to police violence.86 Trump, on the other hand, called people protesting police violence a “threat” and accused them of calling for “death to the police.”

  As the whole world knows, Donald Trump won. As I have suggested, given the power of the Chokehold, this is unlikely to shift local police practices. The optics are quite different, however, in a way that can advance the cause of the movement for black lives. A progressive president such as Hillary Clinton might have been if she had defeated Trump creates a sense of optimism, or at least forbearance, among activists. Let’s wait and see, the sense is, if the reforms—the Justice Department investigations, the body cams, the bipartisan coalitions to reduce incarceration—will work.

  Trump’s victory, on the other hand, occasioned no such hope. Rather, it exposed the fact that things are unlikely to get better unless the people demand change. In the Marxist expression, the contradictions are heightened. Many people feel that they have more to be angry about even if, in pragmatic terms, they do not, because the Chokehold operates in largely the same way in a Democratic administration as a Republican one.

  There is an interesting correspondence between Donald Trump’s description of the African American community and that of the movement for black lives. Both agree that the state of African Americans is dire, and unlikely to improve absent radical change. Campaigning for president, Trump asked African Americans, if they voted for him, “What the hell do you have to lose? . . . You’re living in poverty, your schools are no good, you have no jobs, 58% of your youth is unemployed—what the hell do you have to lose?”87 The platform of the movement for black lives demands “an end to the war on black people” and states, “We take as a departure point the reality that by every metric—from the hue of its prison population to its investment choices—the U.S. is a country that does not support, protect or preserve Black life.”88

  In either view, it is not so much that the apocalypse has arrived but rather, for African Americans, that it has been here all along. It is up to every American of goodwill to determine whether, this time, the apocalypse will be productive and cause a critical mass to rise up and demand transformation. Until the Chokehold is unlocked, African American men will never be free, and, in the words of Supreme Court Justice Sonia Sotomayor, “our justice system will continue to be anything but.”89

  ACKNOWLEDGMENTS

  This book has been a long time coming. It started out, several years ago, as a guide to the criminal justice system for African American men, but then Trayvon Martin was killed. A guide to the criminal justice system would not have saved Trayvon; he was shot down just walking home from the store after buying some candy. Then came Michael Brown, also walking in the street; Sandra Bland, driving her car; Eric Garner, allegedly selling cigarettes on the street corner; and Freddie Gray, minding his own business in his own neighborhood, to name only a few of the black people who were killed for no reason and treated in life and death more like criminals than the people who killed them—not one of whom has gone to prison. The movement that rose up to avenge their deaths inspired me. In the language of the movement for black lives, I got “woke.” Chokehold is the result. More than anything I hope Chokehold honors the lives of those fallen sisters and brothers and advances the project to mark their deaths as the start of a revolution.

  It takes a posse to write a book. I am fortunate to belong to a few. Chokehold was nurtured at the African American Policy Forum’s Social Justice Writers Workshop, an annual gathering of race women and men in Negril, Jamaica. We eat ackee and codfish, write, read each other’s work, meet in the Atlantic Ocean for two hours to workshop papers, and eat jerk chicken. Deepest gratitude to Kimberlé Crenshaw, Luke Harris, and Devon Carbado for creating and sustaining this beloved community. They made Chokehold a better book, along with the others who joined us in the ocean, including Sahar Aziz, Khaled Beydoun, Laura Flanders, Marcus Hunter, Kiese Laymon, George Lipsitz, Darnell Moore, Priscilla Ocen, Marlon Peterson, Andrea Richie, and Alvin Starks.

  The men of Positive Change, at Maryland’s Jessup Correctional Institution, blessed me with an insightful reading of the entire manuscript. Much respect, my brothers, and stay strong.

  The Criminal Justice Roundtable is a yearly gathering of some incredible criminal law scholars. What a privilege to present chapters to the group in meetings at Harvard and Stanford. Shout-out to Tracey Meares, Carol Steiker, and David Sklansky for the opportunity, and to the members of the roundtable for the amazing feedback.

  The John Mercer Langston Conference is a formation of black male law professors and those brothers were some of my best, and toughest, critics. High fives to all the participants in my workshop, especially Mario Barnes, Charlton Copeland, and Terry Smith.

  In addition to the posses, cash money and time off from the 9–5 gig helped Chokehold get done. Georgetown University Law Center, my wonderful academic home, provided a sabbatical and summer research grants. Dean Bill Treanor always has my back.

  Mad props to my friends and colleagues who commented on draft chapters. I shared my stuff with these folks because they are some of the smartest and most generous people I know, and I got way better than I gave. Thank you to Amna Akbar, Sharon Dolovich, Jeff Fagan, Katherine Franke, Justin Hansford, Bernard Harcourt, Kris Henning, Eisha Jain, Corinna Lain, Adam Levitin, Judith Lichtenberg, David Luban, Scott McAbbe, Allegra McLeod, Tracey Meares, Sherally Munshi, Gary Peller, Catherine Powell, Andrea Roth, Stephen Rushin, Michael Seidman, Ted Shaw, Abbe Smith, Gerry Spann, Carol Steiker, Peter Tague, Kendall Thomas, Deborah Tuerkheimer, Robin West, and Patricia Williams.

  My research assistants are the best. Alexander Galicki, Eric Glatt, Bradford Ham, Suraj Kumar, Will McAuliffe, Sonia Tabriz, Daniel Walsh, Chase Whiting, and Edward Williams all went beyond the call of duty. Georgetown Law students Jessica Lyn Davis, Garrett Thomas, and Adi
Williams also made contributions, as did Monica Martinez, my faculty assistant.

  Big up to the peeps who generously shared their ideas, experiences, and encouragement, especially Deleso Alford, Alvaro Bedoya, Donovan Chamberlayne, Angela Jordan Davis, Tamara Lawson, Eric Lotke, and Robert Patterson. The Raben Group has been an invaluable partner in introducing Chokehold to the world. Robert Raben and Donald Gatlin are my top dawgs.

  I presented works in progress of various chapters at the University of Alabama School of Law, Arizona State University’s Sandra Day O’Connor College of Law, University of Florida Levin College of Law, Fordham Law School, Georgetown University Law Center, George Washington University Law School, and the University of Richmond School of Law. Many thanks to the participants in those sessions.

  The New Press is the publisher a writer dreams of. Sometimes it seemed as if Diane Wachtell and Ellen Adler believed in this project even more than I did. I am grateful to everyone at The New Press for their support and their diligent work on Chokehold, and to Diane and Jed Bickman for their superb editing.

  My friends gave me hugs and bought me drinks, offered tough love when I needed it (and a few times when I really didn’t), and showed so much support. Paul McPherson, Mark Brown, Jayne Jerkins, Dana Lintz, Scott McAbbe, Brenda Morris, Uche Onwuamaegbu, Ron Ross, Myron Smith, Mark Srere, and Verna Williams—thank you for the love.

  My mother, Lindi Butler-Walton, is my biggest supporter, followed by my sister Kimberly Butler. Every page of this book is a product of the love they have shown me all my life. Jonell Nash, my father’s partner, and Elmo “Walt” Walton, my mother’s husband, both made their transitions as I worked on this book. They supported my work and, more importantly, loved my parents fiercely, and I know that, in the great beyond, they are still taking good care of us.

  My father, the actor Paul Butler, used his art to show the world the joy and pain of being a black man in the United States of America. Daddy was a race man through and through. He loved black people and believed in us and he loved me and believed in me. This book is dedicated to him.

  NOTES

  Introduction: Broke on Purpose

  1. See Civil Rights Division, “Investigation of the Ferguson Police Department,” U.S. Department of Justice, March 4, 2015, available at www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf; Charlie Leduff, “What Killed Aiyana Stanley-Jones?,” Mother Jones, November/December 2010; Mark Berman and Wesley Lowery, “Former South Carolina Police Officer Who Fatally Shot Walter Scott Indicted on Federal Civil Rights Violation,” Washington Post, May 11, 2016; David A. Graham, “The Mysterious Death of Freddie Gray,” The Atlantic, April 22, 2015; Annie Sweeney and Jason Meisner, “A Moment-by-Moment Account of What the Laquan McDonald Video Shows,” Chicago Tribune, November 25, 2015; Carol Cole-Frowe and Richard Fausset, “Jarring Image of Police’s Use of Force at Texas Pool Party,” New York Times, June 8, 2015; Timothy Williams and Mitch Smith, “Cleveland Officer Will Not Face Charges in Tamir Rice Shooting Death,” New York Times, December 28, 2015; Cheryl Corley, “The Driving Life and Death of Philando Castile,” NPR, July 15, 2016.

  2. Nick Wing, “Donald Trump Says ‘Police Are the Most Mistreated People’ in America,” Huffington Post, January 14, 2016; Reena Flores, “Donald Trump: Black Lives Matter Calls for Killing Police,” CBS News, July 19, 2016.

  3. See Ta-Nehisi Coates, “The Black Family in the Age of Mass Incarceration,” The Atlantic, October 2015.

  4. See Ta-Nehisi Coates, “Nonviolence as Compliance,” The Atlantic, April 27, 2015; Kristina Marusic, “From Peaceful Protests to Violent Uprisings, Here’s What History Can Teach Us About the Baltimore Riots,” MTV News, April 28, 2015; German Lopez, “Riots Are Destructive, Dangerous, and Scary––but Can Lead to Serious Social Reforms,” Vox, September 22, 2016.

  5. See “On the Stop-and-Frisk Decision: Floyd v. City of New York,” New York Times, August 12, 2013; Civil Rights Division, “Investigation of the Baltimore City Police Department,” U.S. Department of Justice, August 10, 2016, available at www.justice.gov/opa/file/883366/download; Civil Rights Division, “Investigation of the Ferguson Police Department,” U.S. Department of Justice, March 4, 2015, available at www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf; Sari Horwitz, Mark Berman, and Mark Guarino, “Justice Dept. Launches Investigation into Chicago Police Department,” Washington Post, December 8, 2015; Joel Rubin, “Justice Department Warns LAPD to Take a Stronger Stance Against Racial Profiling,” Los Angeles Times, November 14, 2010; Civil Rights Division, “Investigation of the Cleveland Division of Police,” U.S. Department of Justice, December 4, 2014, available at www.justice.gov/sites/default/files/opa/press-releases/attachments/2014/12/04/cleveland_division_of_police_findings_letter.pdf; Community Oriented Policing Services, “Collaborative Reform Initiative: An Assessment of the San Francisco Police Department,” U.S. Department of Justice, October 2016, ric-zai-inc.com/Publications/cops-w0817-pub.pdf.

  6. Paul Butler, “The System Is Working the Way It Is Supposed To: The Limits of Criminal Justice Reform,” Georgetown Law Journal 104 (2016): 1419, 1446.

  7. “Los Angeles Police Reconsider Using Chokehold,” New York Times, September 3, 1991.

  8. Conor Friedersdorf, “Eric Garner and the NYPD’s History of Deadly Chokeholds,” The Atlantic, December 4, 2014.

  9. See Susanna Capelouto, “Eric Garner: The Haunting Last Words of a Dying Man,” CNN, December 8, 2014; Jim Dwyer, “Two Fatal Police Encounters, but Just One Video,” New York Times, August 5, 2014; Jen Chung, “NYPD Strips Badge, Gun from Cop Involved in Fatal Chokehold,” Gothamist, July 20, 2014; Al Baker, J. David Goodman, and Benjamin Mueller, “Beyond the Chokehold: The Path to Eric Garner’s Death,” New York Times, June 13, 2015; Massimo Calabresi, “Why a Medical Examiner Called Eric Garner’s Death a ‘Homicide,’” Time, December 4, 2014; Josh Voorhees, “Of Course It Happened Again,” Slate, December 3, 2014; James Queally, “Man’s Death After Apparent Chokehold by NYPD Officer to Be Probed,” Los Angeles Times, July 18, 2014.

  10. City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

  11. Public Enemy, It Takes a Nation of Millions to Hold Us Back (Def Jam Records, 1988).

  12. See Sahar F. Aziz, “Policing Terrorists in the Community,” Harvard National Security Journal 5 (2014): 147; Kaaryn Gustafson, “Degradation Ceremonies and the Criminalization of Low-Income Women,” UC Irvine Law Review 3 (2013): 101; Khiara M. Bridges, “Privacy Rights and Public Families,” Harvard Journal of Law and Gender 34 (2011): 113; Joseph William Singer, “Well Settled?: The Increasing Weight of History in American Land Claims,” Georgia Law Review 28 (1994): 481; Frances Ansley, “Doing Policy from Below: Worker Solidarity and the Prospects for Immigration Reform,” Cornell International Law Journal 41 (2008): 101; “Sustaining Tiered Personhood: Jim Crow and Anti-Immigrant Laws,” Harvard Journal on Racial and Ethnic Justice 26 (2010): 163; Leigh Goodmark, “Transgender People, Intimate Partner Abuse, and the Legal System,” Harvard Civil Rights-Civil Liberties Law Review 48 (2013): 51; Dylan Vade, “Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender That Is More Inclusive of Transgender People,” Michigan Journal of Gender and Law 11 (2005): 253; Sunny Woan, “White Sexual Imperialism: A History of Asian Feminist Jurisprudence,” Washington and Lee Journal of Civil Rights and Social Justice 14 (2008): 275.

  13. Paul Butler, “Black Male Exceptionalism? The Problems and Potential of Black Male–Focused Interventions,” Du Bois Review 10 (2013): 485.

  14. Akasha Gloria T. Hull, Patricia Bell Scott, and Barbara Smith, All the Women Are White, All the Blacks Are Men, but Some of Us Are Brave: Black Women’s Studies (New York: Feminist Press at the City University of New York, 2015).

  15. Kimberlé Williams, Andrea J. Ritchie, Rachel Anspach, Rachel Gilmer, and Luke Harris, “Say Her Name: Resisting Police Brutality Against Bla
ck Women,” African American Policy Forum and Center for Intersectionality and Social Policy Studies, 2015, 28.

  16. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2012).

  17. See Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).

  18. Lisa L. Miller, “Violence and the Racialized Failure of the American State,” Lawyers, Guns & Money, December 8, 2014, available at www.lawyersgunsmoneyblog.com/2014/12/violence-racialized-failure-american-state-guest-post-lisa-m-miller.

  19. See Tracey Meares, “A Third Reconstruction?,” Balkinization, August 14, 2015, balkin.blogspot.com/2015/08/a-third-reconstruction.html.

  20. Robin Morgan, “Goodbye to All That,” maanmittauslaitos.files.wordpress.com/2011/02/robin20morgan20-20goodbye20to20all20that.pdf.

  1: Constructing the Thug

  1. See Rachel D. Godsil and Alexis McGill Johnson, “Transforming Perception: Black Men and Boys,” American Values Institute, March 2013.

  2. See Pamela M. Casey et al., “Helping Courts Address Implicit Bias,” National Center for State Courts, 2012, b-2, b-6.

  3. The character used in chapter 1’s text is merely a representative character and not necessarily one that was used in the study. For the full study, see Keith Payne et al., “An Inkblot for Attitudes: Affect Misattribution as Implicit Measurement,” Journal of Personality and Social Psychology 89 (2005): 277.

  4. See Godsil and McGill Johnson, “Transforming Perception: Black Men and Boys.”

  5. Fredrick Kunkle, “‘Walking While Black’ Can Be Dangerous Too, Study Finds,” Washington Post, October 26, 2015.

  6. Jason Okonofua and Jennifer L. Eberhardt, “Two Strikes: Race and the Disciplining of Young Students,” Psychological Science 26:5 (April 8, 2015).