America’s Criminalization of Blackness (ep. 6)

July 26, 2018
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In recent months, Black Americans have had the cops called on them for things like waiting in Starbucks, entering their own dorm rooms, moving into their own apartments, and barbecuing in a public park. Why are these stories making waves now, and what do they say about being Black in America? Jeff Robinson, director of the ACLU Trone Center for Justice and Equality, discusses America’s history of criminalizing race, and how we can meaningfully confront it.

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LEE ROWLAND
[00:00:00] I’m Lee Rowland, and this is At Liberty, from the ACLU: the podcast that explores the biggest civil rights and civil liberties issues of our day. In just the past few months, there have been numerous reports of Black Americans having the cops called on them for things like waiting in Starbucks, entering their own dorm rooms, moving into their own apartments, and barbecuing in a public park. Why are we hearing so much about this kind of incident, and what do these stories say about being Black in America in 2018? Here to help us talk through this is Jeff Robinson. He's head of the Trone Center for Justice and Equality at the ACLU. Jeff, thanks so much for being with us today.

JEFF ROBINSON
[01:00:00] Thanks for having me Lee, I appreciate it.

LEE
Let me just start by asking you: How did you get here? How did you end up an advocate for racial justice at the ACLU?

JEFF
[00:01:10] I was born and raised in Memphis Tennessee, and I was eleven years old when King was killed. He had come to Memphis to lead a march before he was killed, and that march broke into violence. I was there with my father and my older brother, and a lot of the people that were arrested were ministers, other leaders in the Black community, and so my dad took me to court, and I watched these people that were called lawyers, and I was amazed. I thought, how do you get to be one of them? My dad, who was a high school principal, immediately took it as an opportunity to say, "Well, you have to go to college and then law school, and it's all these years." And, I thought, “I'll be twenty-six when I get out of law school, that's really old.” But, when I look back from that moment, everything I did was pointed toward law school.

JEFF
[00:02:04] I saw lawyers standing up and saying that these people that I had been raised to respect had a right to do what they were doing. The fact that they were standing between these people and a system that wanted to hurt them, that's what I could tell as an eleven-year-old, that was really appealing to me. And, when I went to law school, I had no other goal but to be a public defender. And, I left law school, went to Seattle, Washington, and I was a public defender at the state and federal level for the first eight years of my practice. Then, for twenty-seven years, I had a private practice where I did criminal law and represented some people suing the government and private entities in civil cases.

LEE
[00:02:50] Now, you're here at the ACLU. Was there something that sparked that change to kind of go from this illustrious career in defense work and shift to a role where you were really focused on policy and racial justice writ large?

JEFF
[00:03:08] I think there were a number of reasons. Probably the most significant one is that my wife's younger sister passed away, and she had a teenage son who became our son, so we had to move him from Queens, New York to Seattle, Washington, and all of a sudden there was this thirteen-year-old in my home. When I would talk to him about, "How do you identify yourself, who are you?" he would say, "I'm Taino Indian, Puerto Rican, and African-American." I would be thinking to myself, that's absolutely true, but you're a young, Black male. That's what you are. That's what you look like, and that's what I'm concerned about. As he started to do the normal things that teenagers do, asking to leave the house at night and come back several hours later, found myself looking at the clock, sitting on couches downstairs until he came in, and part of it was because I knew what he faced as a young Black male anywhere in America. I think that, as much as anything, had an impact on my decision to take this job. Because, sitting there and watching him grow up in my home, I definitely had the feeling of, "It's not going to happen to him.”

LEE
[00:04:34] Where you went immediately with your son, in my mind, has so much to do with what I want to talk about today, which is what it's like to be Black in public in America, and the risks you run, perhaps, in every corner. When we started the episode I mentioned incidents like Black men having the cops called on them for sitting in Starbucks, or women who had the cops called on them because they did not wave and smile at a neighbor when they checked out of their Airbnb. The notorious Oakland barbecue incident.

JEFF
[00:05:00] Right.

LEE
[05:01] What's your view for why we're hearing about such a raft of these stories right now?

JEFF
[00:05:08] I really think that the thing that has mobilized the discussion of this in America, and it's not just this issue but many issues dealing with race and injustice, is technology. There's nothing new happening in America, but there are cellphones, there are dashcams, there are body cameras, there are surveillance cameras, all over America. So that, when Black people are now saying, "I got stopped by the police for absolutely no reason," there's a video of it. It's not just the Black person saying this is what happened, and then the reaction of, "Oh well, there must have been something else. You must have said something or done something. I'm sure it wasn't that bad." Now, the video is making America have what I refer to as a “naked lunch moment” with race in America, where we have to look at what is really on the end of the fork, and it's not very pretty.

LEE
[00:08:57] Is there a history of this kind of oppression of Blackness in public space, that this is just part of a longer arc of the difficulty of being Black in America?

JEFF
[00:06:22] I think that's really important. I think once again it's because so many of us don't know our history. I include myself in that group. When my nephew came and started living with us I had to educate myself. What you're talking about goes back to before the country was formed as a country. In the 1600s and 1700s there were laws that said Black people could not be on the road by themselves. If you were on the road going from one plantation to another you had to have a permission slip from your owner so that people could identify, who are you, what right do you have to exist in our space? "Let me see some proof, because if you don't have that," and then dot, dot, dot, fill in the blanks about what happens next. We have always, members of my community have always been challenged for our literal existence in America, going back, as I said, to before the country was even formed.

LEE
[00:07:19] How do we grapple with the fact that this is a changing beast? In the sense that those laws are off the books, as a matter of constitutional law at this point.

JEFF
[00:07:25] Yes.

LEE
[00:107:26] But we know, as a matter of fact, just the last month of media reports has proven to us that there is still a police force that will respond to non-criminal incidents by Black people when I think, so far, it's been pretty much uniformly white people who have picked up the phone and called the police and said, "I don't like what this Black person is doing." How does that shift change the response that you feel advocates need to have to further racial justice in America?

JEFF
[00:08:01] I think one of the things that we have to do as a country, as a community, is to recognize and name what we're dealing with. This is not a problem with Black behavior, this is not a problem with wearing cornrows, this is not a problem with the way people are dressing; this is a problem with the way Blackness is interpreted in America. We will never, in my view, come to a place where we actually grapple with these things in a positive way until we acknowledge that it exists. There are still people with all the incidents that you've named who will say, "But they should've left when they were asked to," or, "Those women could have waved and that would've stopped the whole thing." The incident at Colorado State with the two native American young men is emblematic of this in so many ways.

LEE
[00:08:59] Can you tell us a little more about that incident?

JEFF
[00:09:02] Two young men decided that they were going to go on a tour of the Colorado State campus, invited by the university. They showed up a couple of minutes late because they had to drive from their hometown to get to the university. A white woman was upset because they were wearing T-shirts that she didn't recognize, and when she questioned them about what they were doing there, they didn't respond in a way that she felt comfortable with. She called the police, and one of her quotes was, "They definitely don't belong here." Both of those young men were there at the university's invitation, they were pulled out of that tour, they were made to produce identification, they were made to produce their invitation to the tour, the tour went forward and left them. Then the officer had the nerve to call the young men's mother and say to the mother, "Maybe next time they'll speak up for themselves when a person asks them a question, and something like this won't happen." Once again, it was their fault.

JEFF
[00:10:11] If there's any humor to this, the t-shirts they were wearing were from a heavy metal rock band. I guess if it had been Metallica maybe she would've been comfortable. This rock band, the name of which I can't remember, called up the two young men and gave them lifetime passes to all of their concerts. There is a bit of humor at the end of it, bu tit's humor that makes you laugh instead of cry.

LEE
[00:10:39] Yeah, and it's a messed up silver lining you wouldn't wish on anybody, but damn I hope they enjoy those concerts.

JEFF
[00:10:41] Exactly.

LEE
[00:10:43] This may be a philosophical question, but you're talking about, in this instance, and with so many of these instances, a woman who made a snap judgment about someone that I'm sure you think is informed by race.

JEFF
[00:10:58] Yes.

LEE
[00:11:01] Do you think it's possible to change the hearts and minds of someone who thinks about people that way, who thinks their first recourse to difference is, "I'm going to use the police state"?

JEFF
[00:11:08] I do. This does not come from a sense of pollyannaish optimism, because I am not an optimist. There is verifiable data in terms of the lives that have been led by people in America right now who would have made that same phone call that that woman made five years ago, but they would not make it today.

LEE
[00:11:35] How has that happened?

JEFF
[00:11:38] That has happened by people grappling with the truth about our history of racism in America, and then trying to understand, what can I personally do about this? What about the way that I live my life can impact this trend that we're seeing? Part of that is having an occurence in your space, and just asking yourself, if these people were white would I be having the same reaction? A lot of times people end up saying, "I don't think I would." The Starbucks incident is a clear example. I'm from Seattle Washington. That's the home of Starbucks. I can tell you that there are people who literally run their personal business from Starbucks, because they have an internet connection. You go in, by one cup of coffee, and you're there for five hours, and Starbucks doesn't care. That's part of their-

LEE
[00:12:30] They encourage that, yeah.

JEFF
[00:12:32] Exactly, that's part of their business model. Understand that, and being willing to ask yourself that question in the moment, would I have the same reaction if this person looked like me, maybe asking yourself before you pick up that phone to make a call, "I wonder what this person is experiencing and what's going on right now," and "I wonder what will happen if the police come". The Starbucks incident is once again perfect. They made a call, and five police officers ended up surrounding those two men in a semicircle with their hands at or near their guns. Had that been me, and I got really nervous, and maybe I got angry because I hadn't done anything, and I say, "What the hell is this, get away from me," now I'm a Black man who is showing anger, who is showing emotion. Now they may have to, quote-unquote, “take me down.” So, an incident that starts because some white person was uncomfortable ends up with me being tased, on the ground, or maybe worse. Thinking about the implications before you call the police on an incident is really important.

LEE
[00:13:50] Are there any situations in which you think people should call the police on Black suspects in a situations where there is, say, not a risk of violence?

JEFF
[00:14:01] If there is not a risk of violence, I'm not sure what we're calling the police for. Someone breaking-

LEE
[00:14:09] A nuisance, perhaps a breaking and entering --

JEFF
[00:14:11] Sure, if you see someone breaking into a home call the police. If you see someone standing by a car with a crowbar in their hand and broken window, and the car radio on top of the car, call the police. No question about it. But if you see me existing in a space close to you, don't call the police. If you see me having a discussion with somebody that you don't understand, don't call the police. And if my t-shirt doesn't meet your standard of acceptable dress, don't call the police. In a way the answer is, call the police the same way you would call the police if it was somebody you knew.

LEE
[00:14:50] You mentioned Starbucks. I'm glad you did, because in talking about how we fix this, Starbucks has offered one potential model, which is that they recently closed their stores for a national anti-bias training. Is that a meaningful step? Is that the kind of thing we should be doing, or is it just window dressing?

JEFF
[00:15:12] It's interesting, because I'll say a couple things about that, and it goes both ways. Number one, many people have said it cost Starbucks millions of dollars to close down their stores for one day, and I think that's probably true. On the other hand, when you think about how much money Starbucks makes in a year, millions of dollars in a day, that's the point. They can make that up tomorrow. Is it significant financially? Of course it is. But given the scheme of things in terms of their whole corporate structure, let's not say that they're making themselves poorer by doing this. They didn't have to do this, and I have read extensively about the substance of that training, and I think there were good things about it and things that were not so good about it. At least-

LEE
[00:15:55] Can you tell us? Are you at liberty to tell us more about that training?

JEFF
[00:15:57] I think the major problem ... I shouldn't say problem, I think the major issue that the training leaves unaddressed is the desire to put everything in the context of implicit or unconscious bias. Because that makes people very comfortable. The science on this is clear.

LEE
[00:16:13] Can you just explain for folks who may not be familiar with the term, what do you mean when you say implicit bias?

JEFF
[00:16:21] Implicit or unconscious bias has to do with biases that virtually every human being on the face of the earth has but is not aware of. These are biases that come from cultural messages, from where we grow up, and many of them literally are occurring below the cerebral cortex, meaning you have no control over them.

LEE
[00:16:44] Can you give an example of a kind of common assumption of prejudice that might be a result of implicit bias?

JEFF
[00:16:51] There are many people, and this doesn't have to do necessarily with race or gender or anything, I could show you a picture of a judge in robes, and you would immediately begin to make associations about that picture.

LEE
[00:17:06] That's a white guy in my mind, guaranteed.

JEFF
[00:17:10] Exactly. You saw a white guy in your mind. You might think smart, you might think powerful, you might think all kinds of things, but you've never even met that person. You have no idea what that person is like. Unconscious bias simply means that these are assumptions we are making without being aware of them. It makes some people feel very comfortable with the issue of race because they say, "If I'm into aware of my racist tendencies then it's not my fault and you can't blame me." That is true at one level, but here's the kicker: Once you are aware of the fact of unconscious bias, once you know that it exists, then it's your responsibility to do something about it. It's your responsibility to look at your behavior to see if you're acting that way, because there is a critical, critical equivalence. Or there is a critical, critical equality between unconscious bias and deliberate racist bias. That is, for the person experiencing it, it's exactly the same. Whether you meant it or not, if I don't get the job because of your bias, I'm just as unemployed. Whether you meant it or not, if I get arrested in Starbucks I'm just as humiliated. And whether you meant it or not, if those cops beat me and kill me, I'm just as dead.

LEE
[00:18:25] I am fascinated by the fact, and I didn't realize it until just now, but that the way you described the power of technology and cellphones and the way you describe implicit bias have a great deal in common, in the sense that both deny people the luxury of denialism, in a way.

JEFF
[00:18:43] I think you've really put your finger on something, because the power of the cameras is that when we saw that Starbucks interaction, we saw white people in Starbucks going, "Wait a minute, they didn't do anything." Now it's very hard to say, "It must have been their attitude or their speech or something they did," because even white people are saying, "They didn't do anything." When you saw the video of Sterling Brown in Milwaukee, you can see he got stopped for parking his car across two disabled stalls. What we didn't see, and what was never dealt with, is this was at 2:00 in the morning. He was in front of a 24-hour pharmacy. The parking lot was empty. Why did the cop even stop? Why did he even engage on that incident when if it had been a white man on the way home from a busy day, and had to work in his office all night, and had his tie undone and his suit on, and he's coming out, "I'm sorry, I just pulled in and ran in and ran out," it'd be, "Good evening, have a nice night."

LEE
[00:19:58] What about the police themselves? Should we be talking about the same kind of implicit bias training?

JEFF
[00:20:08] Without question. One thing about Starbucks: Starbucks called the police, but Starbucks didn't tell the police, "Pull your guns on these guys," or "Treat them horribly," or "Take them to jail for nine hours and let them sit there." There is some accountability that Starbucks and individuals have, but the police are accountable for their own behavior. One of the things that makes police behavior so difficult to address is the lack of accountability.

LEE
[00:20:35] Why is it hard to hold police accountable for abuse of people in their custody? That was a bad question. Why is it so hard to hold police accountable?

JEFF
[00:20:45] One of the reasons is that the laws around the country are written in a way that makes it virtually impossible to convict a police officer. Let's remember one of the most clear and egregious cases that we have seen in the last couple of years, Walter Scott in Carolina. People saw him run, they saw him get shot, and they saw a police officer drop a taser by his dead hand to plant evidence, and the jury did not convict him. He pled guilty to federal civil rights violations. The jury was hung. There is an assumption in American society that the police have such a dangerous job that if they pull their gun and shoot, you can just understand, well it was a mistake, well they were scared, well they were nervous. Every person connected to the criminal justice system will talk about the importance of accountability.

JEFF
[00:21:39] Without accountability the system collapses. There is no accountability for police officers in this country. There is one statistic that is the most glaring and damning, in my view, of all of them: in the last five years, there have been more than $1 billion in police misconduct payouts by cities around America. You look at that last five year period and look at how many police officers have been charged with crimes. $1 billion in payouts on police misconduct cases, but no prosecutions, or virtually no prosecutions, of police officers. You can't pay a billion dollars for misconduct and then tell me that there are no crimes.

LEE
[00:22:34] How much of that result depends on the makeup of the prosecutorial class in America? My understanding is that at least elected prosecutors in this country are overwhelmingly white and male, far disproportionate to the general population. Does that play a role? Is there a fix in these offices that's a long-term goal?

JEFF
[00:22:59] I think it is a long-term goal, and I think one of the things that you will see, for example, is that the ACLU's Campaign for Smart Justice is targeting prosecutors. Targeting prosecutor races. Not telling people who to vote for, but saying, "Here are the things that a prosecutor needs to be doing to keep your community safe. Is this prosecutor following tactics that's going to increase your prison population without making you safer? Is this prosecutor not holding police accountable?" I think most Americans have no idea who their country prosecutor is, and that person has as much power as anybody in the criminal justice system.

LEE
[00:23:42] If we get prosecutors who take police brutality seriously, it sounds like there are still legal obstacles to holding cops accountable. Are those written into the law?

JEFF
[00:23:53] One of the things that police officers around the country have done is to unionize and use the power of their unions very effectively, so if there is any attempt to change the laws to make it easier to prosecute a police officer, you will have the union out there screaming, "It's so dangerous out there, and you don't know what we go through," and all of that. That's what makes it difficult, because politicians don't often have the courage to stand up and say, "No, we need this change." But I will tell you, there are police professionals around America who are starting to sing a very different tune, and they are singing a tune of internal accountability. They are saying people are going to be held accountable for not using de-escalation techniques. For situations where someone gets hurt and it didn't have to happen that way. In the past six weeks I have had meetings with probably five or six people who are in the top positions in law enforcement departments around the country, and the thinking is changing.

LEE
[00:25:03] What do you mean by de-escalation techniques, and what do they look like?

JEFF
[00:25:15] I'll give you the perfect example. In Milwaukee, when Sterling Brown came out of the pharmacy, the officer told him to come to him. Mr. Brown walked right up to the officer. Then the officer said, "Get out of my face, you're too close to me." He called backup right away, and Sterling Brown is saying, "Why are you calling backup?" "You got in my face, now we're going to wait. I own this situation." That's how the cop reacted.

JEFF
[00:25:30] Here's a de-escalation technique: If a person walks up to you and they stand too close, you take a step back and you say, "Good evening, how are you sir?" These are not things that are complicated. Police officers can be trained on very simple techniques like that, and there are other techniques, techniques that can be used with people who may be suffering from a mental illness crisis. But, essentially, it's about respect.

LEE
[00:25:58] I've heard a lot of the rhetoric that policing's one of the most dangerous jobs in America, that these are unfair standards that will hinder them in doing their jobs. Do you have an understanding of the danger of their jobs? Do you think that de-escalation and addressing these issues can be compatible with a job that may fundamentally involved a level of danger?

JEFF
[00:26:19] There've been less police officers killed in the last 15 years than probably in any other time in America. Police have a dangerous job, there is no question about it. Their lives are on the line, there is no question about it. That does not give them the right to execute people when there is not a reason to do that. Fear can be controlled. Fear can be dealt with through training, through tactics, and through other ways. The fact that the job is dangerous is not enough to justify what's happening in America.

LEE
[00:26:58] In many of the incidents you mentioned, one of the arguments we hear from cops when they're accused of excessive force is, "I thought he had a gun. He was reaching for X. His wallet. A piece of paper. Lint in his pocket. I thought it was a gun." Do you think that Black Americans have second amendment rights in this country?

JEFF
[00:27:16] I can tell you that self-defense is an issues I think about a lot as a Black man in America, and I have made a conscious decision to carry a cellphone instead of a gun. Philando Castile had a gun. Didn't work out so well for him. It was licensed and it was registered. If I have a gun in my possession and a police officer walks up to me, I have no confidence that it's going to end well. So, what I choose to carry for self-defense is a cell phone. That's not going to protect me, it's not going to keep me from being beaten or injured, but it will at least potentially let me maintain my dignity. You can take a lot away from people, but taking their dignity is kind of a bottom line issue, and so I want a camera so that if something does happen to me, my wife and my children can say, "He wasn't drunk. He didn't reach for something that looked like a pistol. He didn't punch the officer. He wasn't resisting arrest. They just killed him."

LEE
[00:28:19] It's a low bar that you would be exonerated in death based on a theoretical recording that would show you not at fault.

LEE
[00:28:30] Do the answers lie in the law, or do you think the best answers lie in policy change, and training, and interpersonal changing of hearts and minds?

JEFF
[00:28:38] I think that's a really important question, and I think it's multifaceted and there's a multi-part answer. First, Hillary Clinton told Black Lives Matter advocates during the campaign, “You don't change hearts and minds, you change policies and procedures, that's the way you get to justice.” We have had a 50-year experiment with not talking about race, and I'm talking, from about '68, maybe 40 years, let's say to 2010. There wasn't a national conversation about race, there were changes in policies and procedures, and look where we are right now. 2.3 million people in prison, about 40 percent of them African-American. We have seen what changing policies and procedures will do, which is virtually nothing on their own.

JEFF
[00:29:22] The other thing to remember about policies and procedures is, what you are given with a policy and procedure can be taken back with a change in that policy and procedure. How many Obama presidential initiatives has our current president simply X'd out? If it's given to you with a policy and procedure, it can be taken away from you. I believe that the law and the courts are an important vehicle in effecting this change, but without changing hearts and minds, we're going to be rolling back like Sisyphus to the bottom of the hill.

JEFF
[00:30:00] How do you change those hearts and minds? I think part of it is making people confront the true history of racism in America. I think that is a baseline requirement to have people understand how deeply white supremacy has run through the American fabric. When you give people historical fact, not opinions, because all of this history that I'm referring to, it's hiding in plain sight.

JEFF
[00:30:29] When you understand that 41 of the 56 people who signed the Declaration of Independence owned enslaved people, so when they were saying life, liberty, and the pursuit of happiness, they saw those things as consistent with enslaving a whole race of people, when we can start to understand that, I think you get to a point where people say, "I need to do something more than what I'm doing now."

JEFF
[00:30:56] Is the law the answer? Yes, it is. Is advocacy the answer? Yes, it is. Is voting the answer? Yes, it is. And, is having conversations with people in your family and your community about these issues the answer? Yes, it is. I think it will take all of those things. One of them or two of them is not enough, it's going to take all of them.

LEE
[00:31:22] Jeff, thank you so much for joining us today and talking through these tough issues with us.

JEFF
[00:31:26] Thank you for having me, I appreciate it.

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