More Than Race

I’m hesitant to write a post making a similar point to my last one, but as one article after another comes out discussing racism in this country in the wake of another white cop avoiding indictment after murdering an unarmed black man, this time with clear video, I worry we’re only having part of the conversation. Race is part of problem. It may even be most of the problem right now. It’s also the reason why most people are even thinking about the issue of police violence. Unfortunately, I worry that it’s not the part of the problem we can fix.

Although I’m not as optimistic or congratulatory about our progress, Chris Rock makes some amusing and likely accurate observations about race relations in this country:

“When we talk about race relations in America or racial progress, it’s all nonsense. There are no race relations. White people were crazy. Now they’re not as crazy. To say that black people have made progress would be to say they deserve what happened to them before.”

There’s no question who’s to blame. There’s also no question that progress by white people has been at a snail’s pace if there’s been progress at all.

A few years ago, one academic argued there were more black men behind bars or under the watch of the criminal justice system than there were enslaved in 1850. Although that statistic may be questionable and surely does not take into account the fact that the number as a percentage of the black population has decreased, it highlights the fact we don’t have a lot to celebrate in a century and a half of supposed progress. If we’re expecting to make it better by wiping out racism, we should understand that things probably won’t actually be that much better for another century and a half if they ever get better at all.

Imagine if 1850 anti-slavery advocates had taken the approach to slavery that most people decrying police brutality take today. Plenty of headlines would sound pretty silly:

“If You Think Cameras Will Stop White Slave Owners, You Aren’t Paying Attention”

The Root is Racism in America

Being a slave owner showed me just how racist and violent slave owners are. There’s only one fix.

Adapted to address slavery, that last article’s conclusion would be absolutely ridiculous:

The problem is that cops aren’t held accountable for their actions, and they know it. These officers violate rights with impunity. They know there’s a different criminal justice system for civilians and police.

Even when officers get caught, they know they’ll be investigated by their friends, and put on paid leave. My colleagues would laughingly refer to this as a free vacation. It isn’t a punishment. And excessive force is almost always deemed acceptable in our courts and among our grand juries. Prosecutors are tight with law enforcement, and share the same values and ideas.

We could start to change that by mandating that a special prosecutor be appointed to try excessive force cases. And we need more independent oversight, with teeth. I have little confidence in internal investigations.

The number of people in uniform who will knowingly and maliciously violate your human rights is huge. At the Ferguson protests, people are chanting, “The whole damn system is guilty as hell.” I agree, and we have a lot of work to do.

Could you imagine people back then calling for special prosecutors and accountability for slave owners rather than demanding abolition altogether?

I’ve represented men and women of all races for long enough to see that slavery is alive and well. We’ve just been more subtle about our instruments of oppression. The overwhelming majority of our laws, from our never ending traffic codes and complex regulatory schemes to our random criminalization of the mundane and all things sexual and our massively failed war on drugs, are little more than tools for people with power to do what they want to whomever they want. In most cases, that means making people of color victims of our criminal justice system, a new type of slavery with a facade that’s race neutral enough to trick people who don’t like thinking very hard.

Every time I leave my home, I know I could be arrested for pretty much anything. I’ve seen black defendants who were arrested for jaywalking, and even read about it happening to a black professor here in the news. I’ve seen black defendants who were arrested for driving in the nice neighborhoods where they lived because white cops thought they looked like they were up to no good. I’ve seen black defendants arrested for dressing well because white cops thought they were pimping. I’ve seen black defendants arrested for driving one mile over the speed limit, slightly crossing one marked line, and pulling over to the left instead of the right when they were stopped for no reason. I’m not being sloppy with my language either; I mean arrests. I mean cuffs on, back of the patrol car, inventory search of their car, and a thorough search of their person, often going as far as a body cavity search. I’ve even seen black defendants arrested for having grass in their desert landscaping and dirty swimming pools in their backyards.

Our laws here are so thorough that they in essence demand perfection, and police officers among us have the ability to take us into custody for any deviation, even a “petty offense” like a minor traffic violation, one where the law authorizes only a fine. I know I can be arrested for pretty much anything and that every officer I see is authorized by law to imprison me for at the very least long enough to see a judge. In my world, however, what I know isn’t likely to happen to me. For many of my clients, black clients more than any others, life in this country means a serious likelihood of it actually happening at any moment. And when it does, I’ve found they wait longer than white people to be booked, their interrogations last longer, the judges at their first appearances are more likely to hold them in custody on substantial bonds or release them with more onerous conditions, and the prosecutors are more likely to overcharge them and offer harsher pleas. This isn’t the first time I’ve discussed this.

White people are going to have to get a whole lot less crazy for racism to not continue to infect every facet of our society. The laws we have now would be a horrendously corrupting power if wielded by benevolent philosopher kings ruling societies of enlightened and unfailingly law-abiding subjects. They’re nothing short of disastrous in a country with a history of racism older than the country itself. Pretending that we can have all of the laws we have, enough to make almost anyone subject to arrest at any moment and to insulate from consequences the officers who arrest without cause the unicorns among us who never do something that could get them arrested, is as silly as pretending in 1850 that we could continue to allow slavery without being racist about it.

It’s nice seeing people care about police brutality and the unfairness of the criminal justice system, but it would be nicer to hear people talking about solutions that might actually work.