by Paul Butler
18. Terry, 392 U.S. 38.
19. Terry, 392 U.S. 14–15.
20. Terry, 392 U.S. 1, n.11.
21. Butler, “The System Is Working the Way It Is Supposed To,” 1419, 1447.
22. See Randall Kennedy, Race, Crime, and the Law (New York: Pantheon Books, 1997), 136–67.
23. United States v. Weaver, 966 F.2d 391 (8th Cir. 1992).
24. “Court Says US Border Inspections of Muslims Were Allowed,” International Herald Tribune, November 26, 2007.
25. Rivera, Baker, and Roberts, “A Few Blocks, 4 Years, 52,000 Police Stops.”
26. Jim Dwyer, “What Donald Trump Got Wrong on Stop and Frisk,” New York Times, September 27, 2016.
27. New York Civil Liberties Union, “Stop-and-Frisk Data,” 2016, www.nyclu.org/en/stop-and-frisk-data; Zollan Konno Youngs, Scott Calvert and Mara Gay, “New York City Major Crimes Fall to Lowest Record Level,” Wall Street Journal, January 4, 2017.
28. See Vesla M. Weaver, “The Only Government I Know: How the Criminal Justice System Degrades Democratic Citizenship,” Boston Review, June 10, 2014, bostonreview.net/us/vesla-m-weaver-citizenship-custodial-state-incarceration; Amy E. Lerman and Vesla M. Weaver, Arresting Citizenship: The Democratic Consequences of American Crime Control (Chicago: University of Chicago Press, 2014).
29. See, for example, Charles Lawrence, “The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism,” 39 Stan. L. Rev. 317 (1987); Cynthia Lee, “Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society,” 91 N.C. L. Rev. 1555 (2013).
30. Paul Butler, “Stop and Frisk: Sex, Torture, Control” in Law as Punishment/Law as Regulation (Austin Sarat, Lawrence Douglas, and Martha Umphrey, eds., Stanford, CA: Stanford University Press, 2011).
31. Ibid.
32. Ibid.
33. Ibid.
34. My analysis in this section was advanced by two seminal articles that explore sex, gender, and criminal procedure. Frank Rudy Cooper’s “Who’s the Man? Masculinities and Police Stops” asserts that police use Terry stops to stage “masculinity contests” with other men. Frank Rudy Cooper, “Who’s the Man? Masculinities and Police Stops,” Suffolk University Law School, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=1257183. David A. Sklansky has argued that an unstated animus of the Supreme Court in deciding criminal procedure cases in the 1960s was concern about the anti–civil libertarian methods that police used to investigate homosexual “crimes.” David Alan Sklansky, “‘One Train May Hide Another’: Katz, Stonewall, and the Secret Subtext of Criminal Procedure,” UC Davis Law Review 41 (2008): 875–934.
35. Little v. United States, 125 A.3d 1119 (2015).
36. Richard Goldstein, “What’s Sex Got to Do with It? The Assault on Abner Louima May Have Been Attempted Murder, but It Was Also Rape,” Village Voice, September 2, 1997.
37. For an analysis of depictions of criminal justice in hip-hop music, see Paul Butler, “Much Respect: Toward a Hip-Hop Theory of Punishment,” Stanford Law Review 56 (2004): 983–1016.
38. NWA, “Fuck tha Police,” Straight Outta Compton, Perf. Dr. Dre, Eazy-E, Ice Cube, and MC Ren (Priority/Ruthless, 1988).
39. Lupe Fiasco, “Daydreamin,” Food and Liquor, Perf. Lupe Fiasco (Atlantic, 2006).
40. Webbie, “Six 12’s,” Savage Life 2, Perf. Webbie, Mouse (Atlantic, 2008).
41. Nicholas Powers, “The Gropes of Wrath,” Village Voice, March 20, 2007.
42. “Urban Dictionary: frisk,” Urban Dictionary, May 31, 2009, available at www.urbandictionary.com/define.php?term=frisk.
43. Dead Prez, “Cop Shot,” Cop Shot (White Label) 12, Perf. M-1, stic-Man (Loud Records, 2008).
44. The U.S. Supreme Court also supports this proposition. Sexual harassment in the workplace is governed by Title VII of the Civil Rights Act of 1964, which provides that “it shall be an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s sex.” Circuits developed conflicting perspectives regarding whether Title VII allows such a claim where an employee is sexually harassed by another employee of the same sex. Some circuits held that Title VII plainly does not recognize same-sex sexual harassment claims. See Goluszek v. H. P. Smith, 697 F. Supp. 1452 (ND III, 1988). Others held that such claims are actionable only if the harassment was motivated by sexual desire (that is, if the harasser was a homosexual). Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (4th Cir. 1996) with Wrightson v. Pizza Hut of America, 99 F.3d 138 (4th Cir. 1996). Others took the approach that Title VII protected employees from all types of sexual harassment, regardless of the harasser’s gender or sexual preference. See Doe by Doe v. City of Belleville, 119 F.3d 563 (7th Cir.1997). In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Supreme Court weighed in, deciding unanimously that Title VII did include protection from same-sex harassers, even if that discrimination was not sexually motivated.
45. Bernard E. Harcourt, “Unconstitutional Police Searches and Collective Responsibility,” Criminology and Public Policy, 2004.
46. Jon B. Gould and Stephen D. Mastrofski, “Suspect Searches: Assessing Police Behavior Under the U.S. Constitution,” Criminology and Public Policy, 2004.
47. Njaka v. Wright County, 560 F. Supp. 2d 746 (D. Minn. 2008).
48. Ibid.
49. Ibid., 756.
50. Ibid., n.12.
51. Myers v. James, 2004 U.S. Dist. LEXIS 25666 (E.D. La. 2004).
52. Ibid., 4.
53. Ibid., 3.
54. Ibid., 21.
55. Marrie v. Nickels, 70 F. Supp. 2d 1252 (1999).
56. Ibid., 1257.
57. Ibid.
58. Gary Stoller, “Poll: Most Fliers Bothered or Angered by TSA Pat-Downs,” USA Today, November 23, 2010, available at www.usatoday.com/travel/flights/2010-11-23-airport-security-tsa-poll_N.htm (The pat downs “bother or anger 57% of adult fliers”).
59. “Fliers Liken Pat-Downs to Sexual Assault,” MSNBC, November 18, 2010, available at www.nbcnews.com/id/40257031/ns/travel-news/t/fliers-liken-pat-downs-sexual-%20assault/#.TpxtN97iGU8.
60. Kate Dailey, “TSA Screenings Worry Sexual Assault Survivors,” Newsweek, November 17, 2010.
61. See Charles Krauthammer, “Don’t Touch My Junk,” Washington Post, November 19, 2010.
62. Michael E. Miller, “Cop Accused of Brutally Torturing Black Suspects Costs Chicago $5.5 Million,” Washington Post, April 15, 2015.
63. Civil Rights Cases 109 US 3 (1883).
64. Groups other than African American men, including black women and Jews, were also subject to lynching.
65. Robert McFadden and Joseph P. Fried, “The Louima Case: The Overview; In Harsh Testimony’s Wake, Officer Accused in Torture of Louima to Plead Guilty,” New York Times, May 25, 1999.
66. Greg Ridgeway, “Analysis of Racial Disparities in the New York Police Department’s Stop, Question, and Frisk Practices,” RAND Technical Report (2007): 35–37, available at www.rand.org/content/dam/rand/pubs/technical_reports/2007/RAND_TR534.pdf.
67. Paul Butler, “Stop and Frisk and Torture-Lite: Police Terror of Minority Communities,” Ohio State Journal of Criminal Law 12 (2014): 57, 61.
68. David Luban, Torture, Power, and Law (United Kingdom: Cambridge University Press, 2014): 47.
69. Ibid., 53.
70. Butler, “Stop and Frisk and Torture-Lite: Police Terror of Minority Communities.”
71. M. Gregg Bloche, “Torture-Lite: It’s Wrong, and It Might Work,” New York Times, May 27, 2011.
72. Susan Sontag, “Regarding the Torture of Others,” New York Times, May 23, 2004.
73. Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1979).
74. Ibid., 42.
75. Ibid., 34.
76. Illinois v. Wardlow, 528 U.S. 119 (2002).
77. Ibid., 122.
7
8. Ibid., 125.
79. Butler, “Stop and Frisk: Sex, Torture, Control.”
80. Ibid.
81. Ibid.
82. Ibid.
83. Ibid.
84. Jay-Z, “99 Problems,” Perf. Jay-Z, The Black Album (Roc-A-Fella Records and Def Jam Records, 2003).
85. Ibid.
86. I. Bennett Capers, “Policing, Race, and Place,” Harvard Civil Rights-Civil Liberties Review 44 (2009): 68–69.
87. “Terrorism,” Black’s Law Dictionary (9th ed. 2009).
88. Joseph Goldstein, “Kelly Said Street Stops Target Minors, Senator Justifies,” New York Times, April 1, 2013. Commissioner Kelly subsequently submitted an affidavit to the court denying that he had ever suggested that black and Latino men were being targeted for stop and frisk. Id. The court’s opinion found that in fact black and Latino men were targeted. Floyd v. City of New York, 959 F. Supp. 2d 540, 589.
89. Julie Dressner and Edwin Martinez, “The Scars of Stop-and-Frisk,” New York Times, June 12, 2012.
90. Ibid.
91. Joseph Goldstein, “A Focus on 3 Encounters in a Stop-and-Frisk Trial,” New York Times, March 19, 2013.
92. James Forman Jr., “Arrested Development: Why Conservatives Should Oppose Racial Profiling,” New America, September 10, 2001.
93. Henry Louis Gates, “Thirteen Ways of Looking at a Black Man,” New Yorker, October 23, 1995.
94. Rivera, Baker, and Roberts, “A Few Blocks, 4 Years, 52,000 Police Stops.”
95. I. Bennett Capers, “The Crime of Loving: Loving, Lawrence, and Beyond,” in Loving v. Virginia in a Post-Racial World: Rethinking Sex, Race, and Marriage (Kevin Maillard and Rose Cuison Villazor, eds., United Kingdom: Cambridge University Press, 2012): 114, 126–27.
96. Dionne Grayman, “For Our Sons Police Stops Are a Part of Growing Up,” Women’s eNews, October 2, 2010, available at www.womensenews.org/story/sisterspace/101002/our-sons-police-stops-are-part-growing.
97. Terry, 392 U.S. 14, n.1, 11.
98. Rivera, Baker, and Roberts, “A Few Blocks, 4 Years, 52,000 Police Stops.”
99. Luban, Torture, Power, and Law, 48.
100. Butler, “Stop and Frisk and Torture-Lite: Police Terror of Minority Communities.”
101. See Rachel Harmon, “The Problem of Policing,” 110 Mich. L. Rev. 761 (2012).
102. New York Civil Liberties Union, “Stop-and-Frisk Data.”
103. Floyd v. City of New York, 959 F. Supp. 2d 540.
104. Dwyer, “What Donald Trump Got Wrong on Stop and Frisk”; Zollan Konno Youngs, Scott Calvert, and Mara Gay, “New York City Major Crimes Fall to Lowest Record Level,” Wall Street Journal, January 4, 2017.
105. Daniels v. City of New York, 138 F. Supp. 2d 562, 565 (2001).
106. Terry, 392 U.S. 35.
107. Ibid., 38.
4: Black Male Violence: The Chokehold Within
1. Niall McCarthy, “Homicide in Chicago Eclipse U.S. Death Toll in Afghanistan and Iraq,” Forbes, September 8, 2016.
2. U.S. Bureau of Justice Statistics, “U.S. Prison Population Declined One Percent in 2014,” September 17, 2015, available at www.bjs.gov/content/pub/press/p14pr.cfm.
3. Mary A. Johnson, “Crime: New Frontier—Jesse Jackson Calls It Top Civil Rights Issue,” Chicago Sun Times, November 29, 1993.
4. Trent Baker, “Seahawks’ Richard Sherman: If Black Lives Matter, Stop Black-on-Black Crime,” Breitbart, September 17, 2015.
5. “A$AP Rocky Says Black-on-Black Crime Is Worse than Police Violence,” YouTube, June 9, 2015.
6. Desire Thompson, “Stephen A. Smith’s ‘Black-on-Black Crime’ Rhetoric Gets an Epic Response from Black Twitter, Hip-Hop Community,” News One, July 22, 2015.
7. Yesha Callahan, “Jay-Z on Black-on-Black Violence: ‘We Need to Understand That We’re Kings and Queens,’” The Root, May 18, 2015.
8. Taylor Lewis, “Black Twitter Reacts to Kendrick Lamar’s Ferguson Comments,” Essence, January 12, 2015.
9. “This Artist Is Comparing Black on Black Crime to the KKK,” BET.com, March 27, 2016, http://www.bet.com/news/national/2016/03/27/black-lives-matter-protests-national-civil-rights-museum.html.
10. Mary Carole McCauley, “‘Kin Killin’ Kin’ Exhibit Opens at the Reginald Lewis Museum,” Baltimore Sun, October 14, 2016, http://www.baltimoresun.com/entertainment/arts/bs-ae-lewis-kkk-20161014-story.html.
11. Alexia Cooper and Erica L. Smith, “Homicide Trends in the United States, 1980–2008,” Bureau of Justice Statistics, 2012, table 1.
12. See Brian A. Reaves, “Violent Felons in Large Urban Counties,” Bureau of Justice Statistics Special Report, 2006, table 4. As of the 2010 United States Census, white and Latino men outnumbered black males. See “2010 Census,” U.S. Census Bureau. There were 96,766,981 white males, 25,618,800 Latino males, and 18,563,970 black males. See “Overview of Race and Hispanic Origin: 2010,” U.S. Census Bureau, 2010, table 2.
13. See Ashby Jones and Arian Campo-Flores, “Crime Persists as a Grim Challenge for Blacks,” Wall Street Journal, August 28, 2013. See also Cooper and Smith, “Homicide Trends in the United States, 1980–2008,” 3, 11, 13. “Most murders were intraracial. From 1980 through 2008, 84 percent of white homicide victims were [murdered] by whites [and] 93 percent of black victims were [murdered] by blacks. [During this same period, blacks were disproportionately represented among homicide victims and offenders.] Blacks were [also] six times more likely than whites to be homicide victims and seven times more likely than whites to commit homicide.”
14. Jones and Campo-Flores, “Crime Persists as a Grim Challenge for Blacks.”
15. Lauren J. Krivo and Julie A. Phillips, “Social Fact: The Homicide Divide,” The Society Pages, August 2, 2013.
16. Reaves, “Violent Felons in Large Urban Counties.”
17. Ibid. Blacks were also responsible, according to these statistics, for 35 percent of rapes. Ibid. Because rape is reported significantly less than other violent crimes, I do not consider those statistics in this chapter. See, e.g., Katherine K. Baker, “Once a Rapist? Motivational Evidence and Relevancy in Rape Law,” Harvard Law Review, 1997, 584. I intend in no way to detract from the violence of rape; my concern is that the rape statistics are not as reliable as those for other violent crimes.
18. See William J. Stuntz, The Collapse of American Criminal Justice (Cambridge, MA: Harvard University Press, 2011), 16–22. Stuntz notes that “high rates of black violence in the late twentieth century are a matter of historical fact, not bigoted imagination. . . . Race and crime were bound up together, as immigration and crime once were, only more so.” Ibid., 21.
19. Brian O’Flaherty and Rajiv Seth, “Homicide in Black and White,” Journal of Urban Economics 68(3): 215–230, available at http://www.columbia.edu/~rs328/Homicide.pdf (table 1).
20. “Black Homicide Victimization in the United States,” Violence Policy Center, March 2016, available at http://www.vpc.org/studies/blackhomicide16.pdf.
21. Lynn Langton et al., “Victimization Not Reported to the Police, 2006–2010,” Bureau of Justice Statistics Special Report, August 2012, available at www.bjs.gov/content/pub/pdf/vnrp0610.pdf.
22. McCleskey v. Kemp, 481 U.S. 279 (1987).
23. “Crime in the United States 2013,” FBI Criminal Justice Information Services Division, 2014, tables 43A–C.
24. Susan Estrich, Real Rape (Cambridge, MA: Harvard University Press, 1987).
25. In general, African Americans are less likely to report violent crime than white Americans. Langton et al., “Victimization Not Reported to the Police,” available at www.bjs.gov/content/pub/pdf/vnrp0610.pdf.
26. Danielle Paquette, “Giuliani: ‘White Police Officers Wouldn’t Be There If You Weren’t Killing Each Other,’” Washington Post, November, 23, 2014.
27. Ian Simpson, “Prosecution of U.S. Police for Killings Surges to Highest in Decade,” Reuters, October, 26, 2015.
28. See generally Jill Leovy, Ghettoside: A True Story of Murder in America (
New York: Spiegel & Grau, 2015).
29. @Touré, Twitter (December 8, 2013, 6:23 p.m.).
30. In 2012, 33,780 people died in motor vehicle traffic crashes. See “Early Estimate of Motor Vehicle Traffic Fatalities for the First Half (Jan–Jun) of 2013,” National Highway Traffic Safety Administration’s National Center for Statistics and Analysis, U.S. Department of Transportation, 2013, table 1.
31. Memorandum for the President from Daniel P. Moynihan to President Nixon, January 16, 1970, 4.
32. Roger Casement’s Online Comment to “Nixons’s Drug War—Re-Inventing Jim Crow, Targeting the Counter Culture,” Thom Hartmann Program, September 21, 2012, 11:47 a.m.
33. Larry Gabriel, “Joining the Fight: Not Your Grandfather’s NAACP,” Detroit Metro Times, August 10, 2011.
34. White people overestimate their risk of being victims of crime. See Lincoln Quillian and Devah Prager, “Estimating Risk: Stereotype Amplification and the Perceived Risk of Criminal Victimization,” Social Psychology Quarterly 73:1 (2010).
35. Naomi Murakawa and Katherine Beckett, “The Penology of Racial Innocence: The Erasure of Racism in the Study and Practice of Punishment,” Law and Society Review 44:3–4 (2010): 710.
36. “Black Homicide Victimization in the United States,” Violence Policy Center.
37. Benjamin Wallace-Wells, “Baltimore After Freddie Gray: A Laboratory of Urban Violence,” New York Magazine, November 30, 2015.
38. James Forman Jr., “Racial Critiques of Mass Incarceration: Beyond the New Jim Crow,” New York University Law Review 87:1 (2012): 48.
39. E. Ann Carson, “Prisoners in 2014,” Bureau of Justice Statistics, September 2015, 30, table 4.
40. Marc Mauer, “The Crisis of the Young African American Male and the Criminal Justice System,” The Sentencing Project, April 1999, 3. As The Sentencing Project noted more recently, “if current trends continue, one of every three black American males born today can expect to go to prison in his lifetime.” See “Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System,” The Sentencing Project, August 2013, 1.