racismreview.com

This commentary was prepared for this site by Roy L. Brooks, Warren Distinguished Professor of Law, University of San Diego School of Law

On July 29th, the House of Representatives passed a resolution apologizing for centuries of American slavery and another 100 years of racial segregation mandated and sanctioned by the federal government’s Jim Crow laws. This first-time-ever resolution holds forth the promise of a post-atonement America; a society marked by racial healing and reconciliation.

But envisioning a post-atonement American is not easy. The difficulty does not lie in visualizing the acts of atonement themselves. Other governments have atoned for their past atrocities, including Germany (for its persecution of Jewish and other the victims of the Holocaust) and South Africa (for its subordination and murder of blacks under Apartheid). The U. S. government has itself atoned for a least one of its past atrocities. Congress and the President passed legislation in 1988 apologizing for the internment of 120,000 Japanese Americans during World War II. Congress and the President made the government’s official apology believable by including in the legislation a $20,0000 reparation to the 60,000 detainees who were alive in 1988.
The problem in envisioning a post-atonement America lies in the more abstract and elusive aspect of understanding the true shift in perception that comes when a person, or in this case a government, feels genuine remorse for the atrocities it has committed.

Like all atrocities, slavery and Jim Crow were not historical accidents or mishaps. Founded upon the principle of liberty, the government of Washington and Jefferson—the government formed under our extant Constitution—denied liberty in a most blatant way. More than that, the U.S. government perpetuated a practice that was clearly in decline. The founding fathers breathed new life into the morally moribund institution of human bondage. Adding insult to injury, slavery was soon followed by a calculated attempt to impose the badges of slavery on 4 million manumitted blacks. Slavery and Jim Crow, in short, were committed knowingly and purposely. The U.S. government was not simply a passive receiver of illicit traditions

The volition with which atrocities of the magnitude of slavery and Jim Crow were conceived and executed raises doubts about the willingness of our government to pursue atonement. Will the government make only a perfunctory effort? Judging by the House Resolution, the early indications are that the government’s atonement might indeed be half-hearted.

Perusing the Resolution, one must come to the sad conclusion that the U.S. government has yet to tender a meaningful apology, let alone propose a single reparation, for slavery or Jim Crow. While Congress and the President have issued a formal, binding legislative apology for the internment of Japanese Americans, the House Resolution offers but a feeble apology. The apology is “nonbinding” and no other organ of government is considering a similar resolution. In addition, while the government’s internment apology was prologue to its internment reparations, the House’s apology is a preface to nothing—it is not followed by a single reparation. Without being backed by reparations, apologies are meaningless. They lack concreteness. Reparations, in other words, turn the rhetoric of apology into a material reality. They make apologies believable, more than mere words.

Curiously, the House Resolution itself makes the case for reparations. It expressly acknowledges not only the “injustice, cruelty, brutality and inhumanity” of slavery, but also that the effects of slavery and Jim Crow are still present today. The victims of Jim Crow are as alive today as were the victims of internment in 1988.

By failing to atone for slavery and Jim Crow, our government reinforces white ignorance and complacency about the racial hierarchies we see in our society today. By failing to atone, the government makes it clear that, despite its words of apology, if fails to see slavery and Jim Crow “as the basic reality, the grim and irrepressible theme governing both the settlement of the Western hemisphere and the emergence of a government and society in the United States that white people regard as ‘free.’”
It is the government’s steadfast resistance to undergoing this mental transformation that creates conceptual difficulty in envisioning a post-atonement America. What does this shift in the understanding of the significance of slavery and Jim Crow mean for our citizens? What does it means in terms of the organizing principles–mainly law and politics—-that shape our society?

Judging by the House Resolution, it means very little. Continue Reading »

In June, the Supreme Court of the United States completed its 2007 term with several significant decisions, one of which, District of Columbia et al. v. Heller (5-4), provided a landmark ruling with regard to the right of American citizens to bear arms.  Writing for the majority, Justice Antonin Scalia rejected a narrow interpretation of the Second Amendment as the right of citizens to keep and bear arms only in connection with a “well regulated militia,” as stated in the preface of the Amendment.  Instead, Justice Scalia maintained that the phrase “to keep and bear arms” means that every citizen, whether in the militia or not, could possess in their homes weapons for their personal defense, and further, that the Amendment applies to weapons, such as handguns, that did not exist when the Constitution was written.  In rendering this decision, the Court struck down as unconstitutional a law banning handguns in the District of Columbia. 

 Legal analysts and commentators were quick to point out that the decision was not likely to bring about dramatic changes in gun laws in most jurisdictions, particularly since the Court explicitly stated that certain restrictions were unaffected.  For example, the Court said that the Amendment only pertains to weapons in “common use” and not “unusual weapons,” such as machine guns.  Moreover, Justice Scalia qualified the majority opinion by saying that it protected only “the right of law-abiding, responsible citizens to use arms in defense of hearth and home,” so that prohibitions on firearms possession by felons and the mentally ill were not deemed unconstitutional by this ruling, nor are laws prohibiting possession of firearms in certain places, such as schools and government buildings.  And, because the case originated in the District of Columbia, the decision affected only federal law; the Court did not explicitly address the question of if or how their interpretation of the Second Amendment applies to state and local jurisdictions (image from allamericanpatriots).

 This latter question may get answered soon, since immediately following the Court’s decision in Heller a lawsuit was filed in Chicago challenging that city’s similarly restrictive gun law.  Another suit, filed in San Francisco the day after the Heller decision was handed down, challenges a law there banning handguns in public housing developments. So while legal analysts were claiming that the Heller decision is important though largely symbolic, I couldn’t help but question who gains and who is most likely to lose as a result of this decision, given the new legal challenges filed already in its wake.

 I was struck, for example, by comments that the Heller ruling will most likely affect gun control laws only in major urban areas.  It is mostly municipal governments, after all, that have enacted laws like the one in DC because of the high incidence of gun violence in many urban neighborhoods. And some commentators remarked that the gun restrictions were not enforced in these neighborhoods anyway, so the Heller ruling would probably have no impact, one way or another, on gun violence there.  I came away with the sense that what was really being said is that these areas – and by extension, their residents, who happen to be disproportionately poor and people of color – are expendable: Just let them all have guns and they can shoot it out.  To me, there are strong undertones of abandoning neighborhoods perceived as “not worth saving,” areas where “law-abiding, responsible citizens” don’t live or wouldn’t go to anyway. 

 Perhaps I am reading too much into these comments, but I think it is worth remembering that all such decisions, by the Supreme Court and by policy makers, almost always have differential effects on different groups of people – with some benefiting and others losing – even though they are promulgated as affecting everyone equally.  There is considerable debate, for instance, as to whether gun control laws really do reduce violent crime. In fact, there are researchers who argue that potential crime victims who have guns may deter criminals.  Yet, I cannot help but think of a recent case in Houston, Texas, in which a white man, Joe Horn, shot and killed two Hispanic men, whom he saw breaking into his neighbor’s home. Horn mistakenly identified the men as “black” when he phoned a 911 dispatcher about the break-in, telling the operator he was going to shoot the men, that he was going to kill them, that he was not going to let them “get away with it.” Texas law permits the use of deadly force to protect property, and a grand jury refused to indict Horn.  But some observers questioned whether the grand jury – described as a “sea of white faces” – would have come to the same decision if Mr. Horn were black. The Supreme Court has now given citizens the right to bear arms to protect themselves and their “hearth and home,” but how will that right be implemented in practice? There has historically been a wide disparity between the written law and the law “in action,” with  the poor and people of color usually being on the losing side when it comes to how laws are applied.            

Supporters of the DC handgun ban argued that it was correlated with a reduction of homicides in that city. Although some researchers dispute this finding, one may legitimately ask, who is most likely to die from a firearm homicide?  According to the Children’s Defense Fund (CDF), the answer is young black males.  Statistics compiled by the CDF show that the chance of a black male being killed by a firearm before his 30^th birthday are 1 in 72; a white male had a 1 in 344 chance.  The CDF reports that black children and teens are more likely than white children and teens to be victims of firearm homicide, and the firearm death rate for black males, 15-19 years old, is more than four times greater than the firearm death rate for white males, 15-19 years old (image from cinematical).

 It is still too early to determine what impact the Heller decision will have, particularly in terms of challenges to other municipal gun control laws and death rates.  But taking legal history into account, I am not optimistic that residents of economically disadvantaged neighborhoods are going to benefit this time around either.

The June 26, 2008 issue of the Integration Report (useful website here) has a disturbing, but predicable story on what is going on in Seattle public schools since our right-wing Supreme Court (in effect, an undemocratic legislature with no oversight) handed down its June 2007 Seattle/Louisville Supreme Court decision that makes it very difficult to use racial characteristics in student assignment plans aimed at reducing school segregation:

Today Seattle schools boast a diverse and multiracial student population. Black and Asian American students make up 22% of public school enrollment. The fastest growing group – Latino students – comprises 12% of the student population.12 However, nearly one-third of Seattle’s schools are considered racially imbalanced, with student populations that disproportionately reflect the district-wide racial/ethnic enrollment. Twenty schools are comprised of student populations that are over 90% nonwhite.

The reason is past and present racial discrimination:

These patterns reflect housing segregation fostered by restrictive covenants and discriminatory lending practices. The boundary lines of the Seattle school district yield a long, narrow geographic space dotted by several lakes and bordering a bay on the western side. Many of the predominately white schools are located in the northern and western portions of the district, while schools with majority nonwhite populations are clustered in eastern and downtown areas.

The price we pay for our still-apartheid, racialized society is great, and includes major racial isolation, as  social science data clearly indicate. I pointed to some of this research in a recent article (”Legacies of Brown: Success and Failure in Social Science Research on Racism,” in Commemorating Brown, edited by Glenn Adams et. al., American Psychological Association 2008):

Desegregated schools with large numbers of white children are more likely to have adequate media centers, computers, and other technology, as well as newer buildings, more classes for advanced students, and more teachers with substantial experience (Mickelson, 2003). When schools are desegregated, white officials typically spend more money on schools; when they resegregate, the opposite usually happens. In addition, children of color educated in desegregated settings generally have much better entrée into job and other important information networks (Orfield & Eaton, 1996). Black young people educated in desegregated public schools are more likely than similar students from segregated schools to attend desegregated colleges, work in desegregated employment settings, and acquire friends from other racial groups (Braddock & Eitle, n.d.).

The savvy Integration Report closes with this sad overview:

Seattle’s lack of policy response to resegregation trends in the district over the course of the past year is perhaps reflective of community ambivalence towards school integration. Busing ended in Seattle over 15 years ago, and school district leadership has failed to take a strong stand against resegregation patterns in the intervening time…. As we approach the one year anniversary of the Seattle/Louisville decision, the resegregation occurring in Seattle underscores the challenge of creating or maintaining integrated schools against the backdrop of residential segregation and judicially imposed limitations on attempts to combat school segregation.

Administrators and Supreme Court Justices now routinely, with little public questioning, operate out of the old white racial frame — and usually act to protect white group interests. Clearly, we need to do some major reform of our very undemocratic Supreme Court, the only one of its kind in the Western world. It now has several reactionary lawyers dictating both moral and political policies on racial remedy matters. In addition, a massive new civil rights movement in this country, one committed to real desegregation, is the only way out of this dilemma, in my opinion.

In March, I posted an item alerting readers to a newly-released report from the Pew Center on the States showing that the United States imprisons more of its citizens than any other country. Moreover, the report showed that the incarcerated population was disproportionately made up of young African American and Hispanic men and women. On May 5th, two additional reports were released detailing how drug enforcement policies and sentencing practices contribute to these racial disparities in arrests and incarceration. (photo: Pennington).


Disparity by Geography: The War on Drugs in America’s Cities, by Ryan S. King (Sentencing Project), is the first longitudinal analysis of city-level drug arrest data by race, covering the 23-year period (1980-2003) of the initiation and expansion of the “war on drugs.” Looking at 43 of the country’s largest cities, King found that 40 of these cities had a substantial increase in drug arrests during this time, with six cities showing an increase of more than 500%. Increases in drug arrests varied across the cities studied, but what is more interesting is that King found significant variations within states. For example, Tucson, Arizona had an 887% increase in drug arrests between 1980 and 2003, while the increase in Phoenix was only 52%. Once again, African Americans disproportionately bear the burden of these increases. The increase in drug arrests of African Americans was more than three times greater than the increase in drug arrests of white Americans (225% and 70%, respectively). In 11 of the cities examined, drug arrests of African Americans increased by more than 500% during the study period.


What accounts for these disparities? While some might argue they reflect racial differences in drug dealing and usage, the Sentencing Project report states that African Americans and whites have relatively equal rates of illegal drug use. King’s analysis indicates instead that the disparities are largely accounted for by law enforcement practices. More specifically, many law enforcement agencies have adopted a practice of saturation policing in which they concentrate their resources on low-income urban neighborhoods with large minority populations under the assumption that in these communities drug dealing is more open and more violent than that which occurs in suburban neighborhoods with predominantly white residents. But the data indicate that most arrests are not for violent drug-related crimes or even for the sale or manufacture of drugs, but rather for simple possession. In fact, four out of five drug arrests are for possession, and 40% of all drug arrests are for possession of marijuana.


In Targeting Blacks: Drug Law Enforcement and Race in the United States, researchers at Human Rights Watch (HRW) document some of the consequences of the saturation policing strategy and the disparate impact on minority communities. The HRW analysis uses data from 34 states compiled by the National Corrections Reporting Program for 2003, the most recent year for which data are available. In an effort to “get tough” on drug crimes, many states adopted mandatory minimum prison sentences for drug offenders, resulting in a swelling of incarceration rates. For example, in 1980, “there were about 40,000 people in jails and prisons for drug crimes. These days, there are almost 500,000” (The New York Times, April 23, 2008, p. A14). But the HRW report shows that not everyone has an equal chance of being incarcerated for a drug conviction.


The analysis documents that despite the fact that African Americans are 12.8% of the U.S. population, they were 53.5% of all individuals who entered prison in 2003 because of a drug conviction. Overall, blacks were 10.1 times more likely than whites to go to prison on drug convictions. In agreement with the Sentencing Project’s report, the HRW researchers conclude that this disparity is a direct outgrowth of the conceptualization of the nation’s drug problem as largely an urban black problem, even though there are data indicating that there may be six times as many white drug offenders as black drug offenders. “The racially disproportionate results presented in this report are as predictable as they are unjust” (p. 4).


One outcome of the rise in incarceration has been prison overcrowding with many states incurring a huge strain on their budgets. As their prison populations have grown, states have had to spend a larger share of their funds on corrections, diverting funds from other areas, such as education. Nationally, between 1987 and 2007, state spending on corrections increased 127%, while state spending on higher education increased 21%, controlling for inflation. In Michigan, spending on corrections exceeds spending on high education. To save money, some states have been looking for ways to reduce their prison populations, using programs such as early release, community supervision, and unsupervised parole (See Keith Richburg and Ashley Surdin, “Fiscal Pressures Lead Some States to Free Inmates Early,” Retrieved May 6, 2008 from http://www.washingtonpost.com ).


But the emphasis on fiscal costs overlooks the human costs of the “war on drugs” law enforcement strategy. As the Sentencing Project report states, saturation policing of minority urban neighborhoods that has resulted in the arrests of hundreds of thousands of young black men has not stopped drug sales or drug use in these communities. Instead, it has created a group of able-bodied citizens with a criminal history that renders them chronically unemployable. Many employers simply will not hire ex-offenders. Inadequate education is also an employment obstacle for many ex-offenders, but individuals with a drug conviction do not qualify for federal tuition grants. Those who get jobs sometimes face transportation problems because they have difficulty getting driver’s licenses. The jobs they get are typically low-paying, but while in prison, child support and court fees have accrued so they may find their meager paychecks are heavily garnished, leaving them with little to live on, let alone to support a family (The New York Times, April 27, 2008, p. 26). In short, the “war on drugs” law enforcement strategy has not solved the drug problem, but it has substantially reinforced social inequalities.


In April of this year, President Bush signed the Second Chance Act, a new law that provides $326 million in grants to local governments and nonprofit organizations for programs – from housing to drug treatment to employment services – that assist the approximately 650,000 people that are released from prisons and jails every year. Although the law received bipartisan support and has been praised by politically diverse groups, it is seen by many as insufficient largely because it focuses on the aftermath of imprisonment and not the factors that lead to imprisonment. Drug treatment, improved education, social services, community development to address urban blight, job training – all instead of using resources for saturation policing, arrest, and incarceration – would go a long way in not only reducing prison overcrowding and strained government budgets, but also reducing racial disparities in arrest and imprisonment and improving public safety in urban minority communities. As Julie Stewart, president and founder of Families Against Mandatory Minimums, recently commented regarding the Second Chance Act, “If we’re concerned [about] people coming out of prison, maybe we should think about how many people are going to prison in the first place. . . . This is the back end of the problem. We need to look at the front end” (quoted in Dan Eggen, “Bush Signs into Law a Program that Gives Grants to Former Convicts,” Retrieved May 6, 2008 from http://www.washingtonpost.com).


The full Sentencing Project report is available here; the Human Rights Watch report is available here.

Slate.com has posted scanned copies of the racist emails the Secret Service has finally turned over to a judge in the long-running lawsuit filed by African American employees. This batch of emails sent in recent years (several date from 2003) by at least 20 high-ranking supervisors in the Secret Serviceare excellent examples of two-faced racism. As blogger Ta-Nehisi Coates points out, many of the emails seem fixated on Jesse Jackson and the jokes in the emails focus obsessively on sexual innuendos about black men’s bodies. The majority of the racist emails posted at Slate.com take the form of jokes of the sort that many whites use to bond with each other in whites-only private, backstage spaces. One of the emails is noteworthy because it departs from this pattern. Instead, it’s more of a general rant that encapsulates much of the white racial frame. What’s especially interesting about this rant is that the middle-class, college educated, well-employed, white, male, heterosexual, author of the email characterizes himself as such a victim of the current cultural milieu of “reverse racism.” Here’s part of what the (very long) email says:

“Reverse racism and political correctness are destroying virtually every aspect of American life. We’re completely surrounded by illegal aliens (who even illegally vote in our elections…) suck up our welfare dollars, steal public educations, commit massive amounts of crimes to include rape and murder, and refuse to learn English (why the @#^* should I have to choose which language I want to use at the ATM? It wastes my time and disgusts me.) …”

Interestingly, part of what the author of this racist email is complaining about is the technology of ATM’s - many of which offer built-in options for selecting different languages.   These kinds of options that build racial or ethnic identity into the machine is what Lisa Nakamura has referred to as “menu driven” racial identity in the digital era.  While some writers have suggested that cyberspace offers there are new, liberating possibilities for moving away from old forms oppression tied to modernity, the actual picture is more complex.    What used to be an ‘old media’ form of racism, shared either face-to-face, written on the back of lynching postcards, or via telephone, today takes on a slightly new twist when some of these old forms of backstage communication make the transition to digital media and such messages are now sent between whites via email. In this instance, the emergence of cyber racism opens up the possibility of disrupting old patterns through the mechanism of forwarding email. What was once only said in private can now, through forwarded email, move beyond the private whites-only space for which such communication was intended. However, such a possibility was not sufficient to lead to an actual interruption in the transmission of white supremacy.  Note that in this instance, there doesn’t seem to be any evidence of a single white ally within the Secret Service who would ‘break rank’ and forward these racist emails outside the white-only intended audience.  Instead, what it took to wrest these emails from the backstage and bring them into the frontstage for all to scrutinize was it always takes to change entrenched forms of oppression:  political action.   In this instance, that took the form of a lawsuit by African American employees of the Secret Service.


The rest of the email quoted above goes on to make the case for the importance of intersectionality in discussions of racism.  He goes on to include elements of gender and sexuality in the latter part of his rant:

“I’m not even going to start on partial birth abortions and selling baby parts to heal old people (Are the Nazis back in power doing experiments?).  Oh yeah, I forgot to mention, the two lesbians down the street from me…with their adopted Korean SON, menorahs in the front window….are a typical American family.   And I’m the sicko nut because I think they’re about as far from what God intended a normal family to look like as giant grasshoppers playing croquet on my front lawn.  But I’m the one with the screwed up view of reality.”

Screwed up, that’s one interpretation.   With this last, broad rhetorical swipe, the author pulls together themes of reproductive and sexual politics, homophobia, antisemitism, and combines it with yet more racism - this time against the adopted child of his lesbian neighbors.   The views he expresses here are indistinguishable from the overt white supremacist websites that I examine in my work.   Yet, people in power and the vast majority of whites in this country, continue to maintain that we have moved”beyond” racism.   Emails like the one discussed here suggest a far different reality.