Introduction: On Race and Justice: How Far Have We Really Come?

ByJustin Hansford

Justin Hansford is a human rights lawyer, activist, and law professor at Saint Louis University School of Law. He is currently the American Democracy Fellow at Harvard University’s Charles Warren Center for Studies in American History.

Eight years ago, before the confetti hit the ground celebrating the election of the first African American president, tears of joy streamed down the faces of many who were prepared to usher in an era of “post-racialism.” Today, on the eve of President Obama’s exit, the harsh and dissonant reality of enduring racialism echoes across the American landscape. The new understanding of reality is highlighted by the refrain “Black Lives Matter,” a proposition that is in some corners as assiduously opposed as it would have been by the founding fathers of this nation. The document they drafted in 1776 concluded that black lives would only matter three-fifths as much as white ones for counting purposes, the black body holding a measure of value only as a site of property interest. A century later, the Hayes-Tilden compromise ended Reconstruction and ushered in Jim Crow, a system designed to ensure white racial domination of economic, cultural, and political life through violence, intimidation, dishonesty, and degradation. Both systems, enslavement and Jim Crow, warped the American soul.

Today, never in human history has a higher percentage of minorities been incarcerated by a majority population. According to the most recent estimate by the U.S. Bureau of Justice Statistics, African American males have a one-in-three chance of going to jail in their lifetime, a rate more than six times higher than whites. This however does not correlate to legitimate crime rates. For example, the leading cause of African American incarceration is nonviolent drug crime. Although 14 million whites and only 2.6 million African Americans report using drugs, African Americans are put in prison for drug offenses at 10 times the rate of whites. African Americans are 12 percent of drug users, but 59 percent of those in state prisons for drug offenses.

This data does not reflect the false belief that blacks have a predisposition to criminal, lazy, or violent behavior that justly demands harsher treatment. The Ferguson report is exhibit one in demonstrating this. Like a cookbook, it describes the recipe for the step-by-step creation of the feeling that black neighborhoods are “occupied territory.” See James Baldwin, A Report from Occupied Territory, Nation (July 11, 1966). The cooks in the kitchen come from our professions: they are police, lawyers, judges, and legislators.

Step one, dehumanization and humiliation—here, e-mails sent and resent throughout Ferguson police headquarters comparing President Obama and the First Lady to animals such as monkeys. We have seen this in other outposts within the legal system as well, from judges and attorneys both. See, e.g., David Jackson, Judge Who Sent Racist E-Mail about Obama to Retire, USA Today, Apr. 4, 2013. Like in Rwanda where the Hutus compared the Tutsis to cockroaches, dehumanization rhetoric and comparison of people to animals is a key step in to creating an atmosphere of complete disdain and contempt human lives. Step two, racial profiling and targeting—in Ferguson, blacks were four times more likely to be pulled over as whites, and six times as likely to be searched, even though they were less likely to have any contraband. Finally, step three, combine targeting and contempt—consider the young black man who was arrested for telling a police officer his name was “Mike” when his driver’s license said “Michael,” later losing his job and having his life severely impaired in the process after his arrest. By harshly sticking to the letter of the law more aggressively with blacks, law enforcement to create hardship in black communities within the bounds of the law and also causes black community members to blame themselves for their hardship.

Like any profession, American policing has both its good and bad apples. as an institution, originally established as a slave patrol system in the nineteenth century, systemically it is a poisoned tree, rotten in root and branch. All legal actors engaged with it are complicit in what Michelle Alexander has called The New Jim Crow. Police judge their success by counting the number of arrests; prosecutors calculate their effectiveness based on the number of convictions, either by trial or more often by intimidation and plea deal; and judges measure their efficiency by number of cases resolved, regardless of the justice of the outcome. So police, prosecutors, and judges together administer a system that incentivizes the expansion of mass incarceration, at the cost of justice.

The collateral effect includes today’s wealth gap. The school-to-prison pipeline and barriers to reentry contribute to the median wealth of the average black family being $11,000, while the median wealth of the average white family is $141,900. Also inevitable is the “Ferguson Effect,” that is, the murder spike in places like Chicago. As feigned and aborted prosecutions of police violence teach black youth around the country that their lives are worth less, they respond against each other in a despair that the legal system described in these pages helped create..

This issue then rightly begins with Jonathan Smith and his exploration of whether the harsh and violent posture that police take toward communities of color is anything new; and if not, why our society has only belatedly observed it. For example, how can it be that white residents of Ferguson, including the mayor, still have difficulty believing the Ferguson report? See Carimah Townes, Ferguson Mayor Rejects Department of Justice Report, Says There’s “No Proof” City Has a Race Problem, ThinkProgress (Mar. 7, 2015). Hallie Ryan and Jon Greenbaum reflect on similar questions. Was it because the white residents of Ferguson were treated with respect and kindness by the same Ferguson police who harassed blacks in the truest tradition of the slave patrol? The former mayor of Savannah Georgia, Otis Johnson, then explores the dichotomous policing worlds that white and black communities experience, this gap making it more difficult for whites to believe the stories of mistreatment told by blacks. He helps to explain that the blindness by some toward this problem is not necessarily willful, and may perhaps be curable.

And what will that cure consist of? As a protester in Ferguson, I ran from tanks with military weapons aimed at my torso, limbs, and head. Jeff Adachi explains police militarization, a problem that poses a fiscal, moral, and safety threat to all citizens. Only belatedly after Ferguson did many communities around the country discover that their own police departments had obtained military-grade weaponry, apparently to use against their own citizens. In Los Angeles even school security had obtained bayonets and mine-resistant tanks to use against unruly students in the public school system.

Perhaps the answer is community policing, which Norm Stamper defines as the citizens policing themselves, with help from local law enforcement, other agencies, neighborhood businesses, and community-based organizations. The nation’s focus on recent incidents of police abuse should make law enforcement less resistant to such collaboration.

Maria Haberfeld helps us to put all of this into a global context. For example, in Toronto, whenever police use force, there is a mandatory hearing. What stops us from having a similar system of accountability? Haberfeld shifts us away from the theoretical and the normative discussions and examines how other societies handle crime control today, somehow creating flourishing societies without extrajudicial killings or mass incarceration. It leaves us no excuse for the bloodshed and racial animosity that mark our efforts at crime control.

Weighing in next is someone who thinks about these issues on a consistent basis, Dr. Cedric Alexander, deputy chief operating officer of public safety in DeKalb County, Georgia. In this process of change, we must engage with ewherever it emerges, including insight from practitioners pursuing public safety as a vocation. Like South Africa apartheid and Jim Crow segregation before, the New Jim Crow does not depend on individual bad apple officers for it to generate systemic injustice. Some officers, like Dr. Alexander, may want to help. But even if of the police officers in Ferguson were paragons of professionalism, my colleague and friend Thomas Harvey, with Kathleen Heath, demonstrates how “for-profit” policing models, and the punitive use of fines and court costs for social control, guarantee that injustice will be incentivized by the almighty dollar, particularly in a period of shrinking municipal budgets and rising neoliberalization.

Finally, Craig Futterman, the attorney who broke the police code of silence by facilitating the release of the dash-cam footage of Laquan McDonald’s murder, is this issue’s human rights hero.

The tragedies of Michael Brown, Eric Garner, Sandra Bland, and others have taught me an important lesson. Our rights will never protect us from the law. On the street, we can’t assert our rights, without possibly being killed for doing so if it enrages the officer. As long as our current law enforcement regime exists, with inordinate amounts of discretion given to police officers to separate bones from flesh, and spill blood if their slightest whim is not acknowledged—our citizens will be forced to accede to injustice.