† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.
by nancy a heitzeg
Editors Note: It has been one year since the murder of Mike Brown and the ignition of the Ferguson Uprising. This piece was published then and reprinted today — so little has changed that it perhaps even more relevant now.
Yes there is greater public awareness of and more political conversation about police violence. Yes there have been unabated protests and the widespread declaration that #BlackLivesMatter. There are organized efforts such as The Counted to document – in the spirit of #Every28Hours – what officials cannot and will not.
But Ferguson is still under siege, a police state for profit. So is Everywhere. There have been calls for “reform” that primarily involve body camera, a proposition insured only to further the enrichment of Taser International and increase our own surveillance. And the body count and corresponding hashtag frenzy continues to mount. Police have killed at least 1,083 Americans in the year since Mike Brown, and are on track in 2015 to kill more than 1.100. As has been the case forever, the targets are disproportionately Black – killed at a rate of more than 3 times all other racial groups combined.
It is difficult to tell if these numbers are actually rising or just seem to be due to increased accounting. At a moment when questions on tactics and strategy are deemed impolitic/verboten, it is fair to ask – is it possible that rising deaths and jailhouse lynchings are police retaliation? Is it possible that protest is broken – that police are prepared not only to absorb street demonstration, but to escalate the punishing?
What creative challenges to the system can be mounted — the entire system – not just the police as avant-garde – but the prison industrial complex as the centerpiece of raced classed gendered control? Can we stop looking for “justice” from the very same killing machine?
How can we effect deep change so that next year at this time we will not still be lamenting more of the same –
In #Ferguson/At #Everywhere……..
As the world continues to watch events unfold in Ferguson and awaits word on what will most likely be the non-indictment of Darren Wilson, some thoughts. It is crucial to honor the specifics of the Ferguson Struggle and the names of the fallen, Mike Brown, Kajieme Powell and VonDerrit Myers. It is essential to support the activists on the ground there.
But remember too, that Ferguson is Everywhere. The City of Ferguson, surrounding St. Louis, the State of Missouri and all elected /appointed officials aren’t particularly exceptional with extra “bad apples”, more perverse laws, or more corrupt political figures. They operate under a national umbrella that routinizes racialized police violence. The names and details may change, but the structural white supremacy that allows for unchecked police/state violence permeate the U. S. legal system – no, it is foundational.
It is normative. it is the bedrock. Everywhere.
What We Know (And Have Known Forever).
Modern U.S. Policing Emerges from Slave Patrols
Professional policing in the United States evolved from the Victorian era London “bobbies”, urban Night Watchman of the North and the slave patrols of the South. The roots of police in the U.S. thus reflected, from the outset, the perceived need to regulate race class and gender in the maintenance of “order.” It is no accident that professional police forces began to emerge and expand in the Industrial Era that exploded after the Civil War. Newly freed Blacks, the “riotous” working classes and women were subject to special scrutiny.
From Policing Slaves Since The 1600’s: White Supremacy, Slavery, and Modern US Police Departments by Auandaru Nirhani:
As an instrument of oppression and control, modern police departments are deeply rooted in some of the most racist and repressive colonial institutions of the United States. Since the establishment of the first policing systems like the Night Watch, the Barbadian Slave Code, the urban Slave Patrols, to the “professional” police forces and other law enforcement agencies, every one of these organizations has had the task of surveilling and controlling the population while imposing and upholding colonial law mainly through the use of force and coercion.
Given this history then, it is unsurprising that the police have and do continue to have as their essential function the control, via legalized violence, of those at the margins of white supremacist capitalist patriarchy. This is the framework for policing everywhere in the USA, despite regional and local variations. Police as a force are intended to protect the persons and property of some, over and against the interests of others. Always.
Racial Profiling is a Central Feature Not A “Bug”
Policing, at the heart, involves the policing of race — the protection of whiteness as both literal and figurative property and the repression of Blackness in particular. Slave Codes become Black Codes/Jim Crow, that echoed the restrictions associated with slavery, re-inscribed the property interests of “whiteness”, and criminalized a range of activities of the perpetrator was Black. These laws were enforced by former slave patrols turned police agencies, with the assistance of extra-legal militias, and the white citizenry in general, who are “not simply “protected” by the police, they are — in their very corporeality — the police.”
In the post – Civil Rights Era of “color-blindness”, racial profiling is masked under a variety of more benign names such as “broken windows”. public order policing, quality of life and plain old stop and frisk. Whatever the name. these practices target communities of color and the poor, giving rise to disparate arrest rates and an increased volume of encounters that increases the risk of police violence, deadly and otherwise.
A recent report issued by the Malcolm X Grassroots Movement, Operation Ghetto Storm: 2012 Annual Report on the extrajudicial killing of 313 Black people by police, security guards and vigilantes this – extra-judicial killings represent just one aspect of that criminalizing war:
“These killings come on top of other forms of oppression black people face. Mass incarceration of nonwhites is one of them. While African-Americans constitute 13.1% of the nation’s population, they make up nearly 40% of the prison population. Even though African-Americans use or sell drugs about the same rate as whites, they are 2.8 to 5.5 times more likely to be arrested for drugs than whites. Black offenders also receive longer sentences compared to whites. Most offenders are in prison for nonviolent drug offenses.”
So while recent attention has been focused (and rightly so) on police killings, it is important to remember that racial dis-proportionality in police encounters is the gateway to a wide range of state sanctioned violence throughout the prison industrial complex.
Police are Most Likely to Brutalize and Kill Blacks
Over the years, a variety of independent research projects have documented the fact that Blacks and Latinos are more likely to be killed by police than whites. Black deaths at the hands of police has been documented in particular by the Malcolm X Grassroots Movement In Operation Ghetto Storm: 2012 Annual Report on the extrajudicial killing of 313 Black people by police, security guards and vigilantes, finds that Every 28 hours in 2012 someone employed or protected by the US government killed a Black man, woman, or child. The overwhelming majority of these killers are police officers and security guards.
Most recently, an analysis of federally collected data on 1,217 fatal police shootings by Propublica verified what long time observers already knew:
The finding that young black men are 21 times as likely as their white peers to be killed by police is drawn from reports filed for the years 2010 to 2012, the three most recent years for which FBI numbers are available.
The black boys killed can be disturbingly young. There were 41 teens 14 years or younger reported killed by police from 1980 to 2012 . 27 of them were black ; 8 were white ; 4 were Hispanic and 1 was Asian .
That’s not to say officers weren’t killing white people. Indeed, some 44 percent of all those killed by police across the 33 years were white. White or black, though, those slain by police tended to be roughly the same age. The average age of blacks killed by police was 30. The average age of whites was 35.
Risk of violence/death at the hands of police is compounded by undercover/plain-clothes police work. This sort of police is disproportionately practiced in Black and Latino communities and increases the likelihood of hostile encounters. Plainclothes police work not only endangers civilians but also undercover officers of color who may – like Omar Edwards or Shem Walker – be killed by fellow officers,
De Lacy Davis, a former police sergeant on the East Orange, New Jersey police force, and founder of the Newark-based Black Cops Against Police Brutality (B-COPS), notes this, “Black and Latino people die at the hands of police departments disproportionately because of the culture of racism that permeates these departments nationally..And some of the problem comes from the culture of arrogance that is also part of the undercover policeman’s demeanor.”..
“undoubtedly undercover police work exposes Black citizens to the potential for dangerous encounters with the police; and further poses extreme hazard for Black undercover officers at the hands of their fellow officers.“…..
In short fear of black people – due in part to relentless stereotyping of young black and brown men as “dangerously violent criminals” – proves to be fatal.
U.S. Law Gives Police Wide Latitude to Use Force, including Deadly Force
Until relatively recently, police were free to do whatever with essentially no accountability. It must be remembered that any constraints on police activity really did not emerge ( e.g. Miranda v Arizona 1965) until the Warren Court era of the 1950 and 1960s. Still, due to a legal erosion of earlier rulings, and the ability of the police themselves to shape the narrative of citizen encounters, there are very few basic rights of citizens in the face of police power.
Two Supreme Court rulings — Tennessee v Garner (1985) and Graham v Connor (1989) – shape the legal parameters of police use of force. In Garner, the Supreme Court held the Fourth Amendment prohibits the use of deadly force unless it is necessary to prevent the escape of a fleeing felon and the officer has probable cause to believe that the suspect poses a significant threat of violence to the officer or the community. The U.S. Supreme Court ruled in Graham v. Connor that actions by law enforcement must be judged by a standard known as “objective reasonableness.” This follow up decision gives police the benefit of the doubt:
“…their actions “must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
The net effect is that there is a higher threshold for prosecuting police officers for actions committed in the line of duty compared to your run-of-the-mill homicide.”
These rulings do not serve to protect citizens from Fourth Amendment violations of “reasonable searches and seizures” of their persons. To the contrary, these decisions tilt the scales towards the police, allowing them on a case by case basis to construct scenarios, pre or post hoc, that suggest their use of force is “reasonable” in light of perceived “threats.” It is, as we shall see below, nearly impossible to legally challenge their versions of events under these rulings.
Police who Maim and Kill are Rarely Indicted and Even More Rarely Convicted
The stacked legal deck results in a situation where police can kill citizens – in almost any imaginable scenario – with little to no fear of legal consequences. With impunity. The Malcolm X Grassroots Movement, in Operation Ghetto Storm: 2012 Annual Report on the extrajudicial killing of 313 Black people by police, security guards and vigilantes. puts it like this:
The “justice system” gives impunity those who commit homicide… The standard procedure in most jurisdictions is for police involved in fatal shootings to be given paid “desk-duty” while the department conducts an investigation of itself. The press applauds their fine records while it screams about the criminal records of the deceased. Almost all killer cops are routinely exonerated and quickly return to the street. Grieving families who invariably ask the modest question, “Why did he have to die?” are ignored. If there is some demonstrated,concerted community outrage, the case may be further investigated. The legal system rarely charges these executioners and even if they do,the killing continues.A number of families attempt legal redress through the civil courts. After years of litigation a tiny minority may gain some solace from a financial payment. And the executions continue.
While local state and Federal law enforcement agencies keep absolutely accurate records of the number of police officers killed or assaulted in the line of duty (typically less than 60 killed per year), there is no comparable systematic accounting of the number of citizens killed by police each year. Various estimates suggest that it may be anywhere from 400 – 600 per year. These numbers may certainly be under-counts since they are based largely on police shootings and do not include deaths by choke-holds, hog-ties, tasers, reactions to chemical sprays or injuries sustained in beatings.
Despite these numbers, very few cases of these cases result in an arrest atrial or a conviction. Recent analysis by the San Francisco Chronicle found, that over a 20 year period, only 17 officers were brought to trial. None were convicted of murder; most were acquitted or had charges later dismissed. It is important to note that Johannes Mehserle, convicted of manslaughter for the 2009 death of Oscar Grant at Fruitvale Station, was the first uniformed officer in U.S. history to be convicted of a wrongful death (a handful of prior convictions were for officers who were off duty or in plainclothes). Acquittals, reversals, and failures to indict at all have come in some the nation’s most high-profile cases including those of Amadou Diallo, Sean Bell, Ramarely Graham, Kelly Thomas, and the 2005 Hurricane Katrina murders by cop on the Danzinger Bridge.
In all these cases, prosecutors were pressured to indict via public outrage, even if cases were difficult to win, jurors were reluctant to second guess police officers, and officers relied on defenses that put the victim on trial and magnified their role in sparking the confrontations and/or their “threatening” nature. Given the aforementioned legal bias that affords officers much latitude and the racial bias inherent in most jury pools, it is a daunting task to hold police legally accountable for use of force.
Who Protects Us from You?
The answer is No One. Given what we know, it seems impossible to expect the State to give us “justice” in the form of convictions of the very agents it sent out to police us in the first place. This is true of Ferguson; it is true of Everywhere.
This bears repeating, Kay Whitlock in Dispersing the White Fog Enveloping Ferguson:
And in the meantime, what happened and continues to happen in Ferguson is both specific and historically resonant. Responsibility and accountability for the systemic dehumanization of black people extend much more broadly and deeply, over a long period of time. At the center of all of this is the question: what would, what could, constitute authentic justice for Michael Brown and all other black people, many of them young men and women, who have experienced, and too often died at the hands of, ordinary structural forms of violence and dehumanization?
…The current paradigm for identifying and addressing violence doesn’t work. The criminal legal system does not and cannot produce justice because violence permeates and is foundational to that very system.
Let’s unleash new imagination and refuse to settle for the current terms of debate.
Ferguson is a galvanizing moment where the under-pinning of the entire system is laid bare. Let’s not get lost in the details, or count victory/loss as an indictment or not. Dream bigger – be bolder.
Ask for more.
Resources for You
- Operation Ghetto Storm: 2012 Annual Report on the extrajudicial killing of 313 Black people by police, security guards and vigilantes
- On the Streets of America: Human Rights Abuses in Ferguson
- The Demands #Ferguson
- We Charge Genocide UN Shadow Report 2014( Chicago)
- Chain Reaction: Alternatives to Calling the Police
- October 22 Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation
- Communities United Against Police Brutality
- Take Back the Streets: Police and Criminalization of Protest Around the World
- Black & Blue – History and Current Manifestations of Policing, Violence & Resistance
- Stonewalled : Police abuse and misconduct against lesbian, gay, bisexual and transgender people in the U.S.
- Incite! Police Brutality Against Women of Color and Traos People of Color
- We Deserve Better: A Report on Policing in New Orleans By and For Queer and Trans Youth of Color