June 09, 2020 MEMBER OP-ED

No Return to Normal

Wendy Mariner, 2019-20 Section Chair

Much of the country is impatient to return to normal. I am not. I am impatient for justice. What was normal – injustice for African Americans – is not acceptable. It is not what the legal profession stands for. It is not what America stands for. Yet for too long, what America stands for – justice for all – has yet to extend to African Americans. As attorneys, we should all be impatient for justice.

America accepts unequal opportunity, education, employment, income, housing, health care, law enforcement, and violence based on skin color as just the way things are. Even when inequalities are recognized, institutional structures create obstacles to achieving justice. It has been this way in one form or another since the first slaver ships arrived on these shores.

Our legal system has incorporated inequality into many laws and court decisions: the Fugitive Slave Act defining enslaved people as property; conditioning the franchise on literacy tests and poll taxes; avoiding Fair Housing Act requirements; offering credit on unequal terms; originally excluding farmers and domestic workers from unemployment insurance; segregating schools, hospitals, and public spaces; racial profiling in policing, criminal prosecutions, and sentencing; and impunity for police violence. When such laws were repealed or declared unconstitutional, legislative majorities that resisted equal rights for African Americans often found more subtle, ostensibly neutral alternatives to maintain white hegemony, such as criminalizing “vagrancy,” imposing harsher sentences for possessing crack cocaine than powder cocaine, and purging citizens of color from voter rolls.

Discrimination is embedded in much of America’s legal system. This is what systemic or structural racism means. It still exists today. A 2016 Report to the United Nations Human Rights Council of a visit by the Working Group of Experts on People of African Descent on its mission to the United States found racial discrimination in the criminal justice system, barriers to political participation, and disparities in access to education, health, housing, and employment. We do not have to reach back to the days of lynching or Jim Crow to see examples of racial violence. We have them in the deaths of George Floyd in Minneapolis, Tony McDade in Tallahassee, Ahmaud Arbery in Brunswick, Georgia, Dreasjon (Sean) Reed in Indianapolis, Breonna Taylor in Louisville, Sandra Bland in Waller County, Texas, Eric Garner in Staten Island, Michael Brown in Ferguson, Missouri, and countless others whose deaths were not recorded for the public to see.

The video of George Floyd suffocating to death under a police officer’s knee – a horrifyingly symbolic posture – could be the straw that breaks the back of white supremacy. But only if we recognize and tackle the root causes of violence against African Americans. The violence is physical, economic, and emotional. It emerges from a culture with deep historical, psychological, and economic roots that relegates people of color, especially young Black men, to a lesser status of human beings. White Americans who have unconsciously absorbed this culture as normal – the default social structure – may not recognize how false and harmful it is. But they must learn. Because African Americans have rightly had enough.

The protests taking place throughout the United States – and in other countries – would be justified if they focused only on George Floyd’s death and police violence. But they also have a larger purpose. Peaceful demonstrators of all colors, religions, and backgrounds are calling for the end of systemic racism. And their call is finally getting the attention it requires. On June 5, 2020, the United Nations Special Rapporteurs for human rights issued a statement noting, “Many in the United States and abroad are finally acknowledging that the problem is not a few bad apples, but instead the problem is the very way that economic, political and social life are structured in a country that prides itself in liberal democracy, and with the largest economy in the world.”

People across the social and political spectrums are calling for change –  former US presidents, university presidents, faith leaders, politicians, businesses, and some police. Ben & Jerry’s issued a statement titled “We Must Dismantle White Supremacy,” naming slavery, Jim Crow, and segregation as “systems of legalized and monetized white supremacy.” The outpouring of grief, pain, anger, and resolve gives me hope that change may finally be possible.

Still, naming is only a first step. To avoid dissipating the energy for change, we need public education. All Americans must learn what systemic racism is and how to really see it. This means educating people about the links in the continuous historical chain of oppression of African Americans, from slavery to the Civil War and the Fifteenth Amendment, from Reconstruction to Jim Crow and resistance to Brown v. Board of Education, the Civil Rights Act and the Voting Rights Act, from the war on drugs to impunity for police violence, the proliferation of prisons, and the disproportionate incarceration of African American men, and from segregated housing and education to voter suppression.

The next step is to build communities and systems that genuinely respect, value and support every American and to cement those goals into the legal system. This means going beyond the formal equal opportunity promised by laws that simply impose the same requirements on everyone “equally” without taking into account the legacy of systemic racism. It means ensuring that African Americans are truly equal.

As lawyers, we pride ourselves in standing for justice and fairness. Now it’s time for us to stand up for justice and fairness. It is up to us in the legal profession to identify and work to eradicate laws that are discriminatory and discriminatory enforcement of facially neutral laws. We must work to achieve laws and enforcement measures that are just and fair. I am proud to be a part of the ABA Section of Civil Rights and Social Justice because this is exactly what we do. We educate the profession and give it the knowledge and skills to recognize and recommend remedies for systemic racism. But there is still so much work to be done, so we are redoubling our efforts. With the energy and dedication of all our talented members, we can help guide the country toward a new, fair and just normal.