The Trayvon Martin Case: Racist Color-Blind Justice
in Post-Racial America?
Dr. Victor M. Rodriguez
Department of Chicano and Latino Studies
California State University, Long Beach
(July 14, 2013) Most U.S. citizens today don’t
believe that racism persists in this country. During the civil rights movement
the anti-racist perspective had gained the moral high ground to the extent that
most people would not dare use racial epithets in public. It is obvious to many
that the culture in this nation has shifted dramatically. In fact, surveys
indicate that racial animosity has significantly declined. Today, those
victimized by racial discrimination are at a disadvantage when trying to prove
that an event, an action is racially discriminatory. However, the reason for
this disadvantage is not that racism is a thing of the past but that the
dynamics of race in the 21st century have transformed themselves
dramatically.
First of all, since the civil rights movement raised
some important and dramatically important moral and ethical issues, individuals
do not want to be perceived as racist. With
the exception of the fringe avowedly and militantly racist most people cringe
at the idea that they could be behaving or thinking in racist terms. It is for
this reason that recent surveys in the last decade have shown some important
declines in the verbal public expression of prejudicial remarks. We don’t want to be
perceived as racists and we have learned to lie in surveys. However, unobtrusive,
covert methods of measuring racial discrimination still indicate the extent of
racial discrimination in US society. Unfortunately, these are the kinds of
evidence that unless they are shown in television (not often) or revealed
in public places like schools, or the internet most U.S. residents are
oblivious to them. For one, we are still a segregated society. In fact,
segregation in some areas of the country has, in fact increased. So what people
know of others (for instance African Americans or Latinos) is shaped by the stereotypical
images they see on television or on films. So Mr. Zimmerman may not have had a
lot of interaction with African Americans (just a selected few) he sure knew
something about “Black youth.”
Racism today expresses itself not in the images of
Ku Klux Klan men publicly lynching people of color but through the subtle workings
of institutions. It is difficult for a society whose culture is so
individualistic to be able to cognitively understand how systemic forces are at
work in this society. The Trayvon Martin case is a classic example.
People believe that “racial profiling” is a figment
of the imagination of people of color particularly African Americans. This occurs
despite the fact that we have decades of scientific data that provides evidence
of how people of color are disadvantaged in every stage of their life. But this is not the sort of information that
is part of the popular culture and remains suspects to individualistically
thinking persons. The color-blind ideology that has become dominant in this
society provides a cover for the way in which racism operates today. As Marx
said, society seems “opaque’ to us since we don’t see its inner workings. But
also, the legal system has contributed to this perception or lack of a clear perception.
The Supreme Court decisions to emasculate the Civil
Rights Voting Act which eliminated the requirement (Section V Shelby County vs Holder) that states
where historically people of color had experienced institutionalized efforts to
disenfranchise them (today we euphemistically call this “voter suppression”) had to submit any plans to change voting processes or redistricting to the Jsutice Department.. In
states like Florida, for example 520,521 (23.3%) of African Americans have lost
their right to vote of participate in juries. This is one of the reasons a
majority white jury in Florida did not include more black juries. How can there
be a rich evaluation of the evidence if the dominant perspective comes from
people that do not even consider racial profiling a fact, just the product of a
minority group’s paranoia? Unfortunately close to 35 states disenfranchise citizens if they have been convicted or are on probation. These tends to happen more often in states that have a history of racial oppression. Close to 4 million persos across the U.S. became second class citizens even when thye have paid their debt to society.
But from the beginning the final outcome of this trial
had been rigged. These things do not happen overtly or conscious but as a
result of how racist assumptions are embedded within the structures of this society.
Angela Corey, the Florida State Attorney (who tried her southern hospitality on
the audience during the final press conference) decided that Mr. Zimmerman
would be tried on a Second Degree Murder charge. The requirements for getting a
conviction for this charge are higher than for manslaughter. Also, the penal
consequences are much higher which could have given the jurors reason to
acquit. If the prosecutors had focused on manslaughter they would probably have
won. Here they did not have to prove a “depraved mind.” This is a very high standard. This harks back to
another Supreme Court decision on an Alabama case (Sandoval 2001) which
overturned a case on racial discrimination because it proved racial discrimination on the basis of the doctrine of “disparate effect.”
Basically, the case had to do with forbidding the use of Spanish in providing
driving manuals for applicants. The court said that the litigants had to prove “intent”
to discriminate not disparate effect (that it would have discriminatory effects on those who
did not know English). How do you get into the mind of an individual to prove “intent?”
How do you prove a “depraved mind?” Very difficult.
Recently, the Department of education released a
study that included the largest sample of public school instances of
suspensions and disciplinary actions on the basis of race.
Among the key findings are:
- African-American students, particularly males, are far
more likely to be suspended or expelled from school than their
peers. Black students make up 18% of the students in the CRDC
sample, but 35% of the students suspended once, and 39% of the students
expelled.
- Students learning English (ELL) were 6% of the CRDC
high school enrollment, but made up 12% of students retained.
- Only 29% of high-minority high schools offered
Calculus, compared to 55% of schools with the lowest black and Hispanic
enrollment.
- Teachers in high-minority schools were paid $2,251 less
per year than their colleagues in teaching in low-minority schools in the
same district.
This is not an isolated occurrence
this is something that permeates U.S. society, U.S.S culture is steeped in
these assumptions about young people of color. This leads to the disparity in
incarceration of African Americans. For every white person incarcerated 5.6
Blacks are in prison.
It took centuries to construct the racist system, it will take a while to dismantle it.
Fourteen Examples of Racism in Criminal Justice System (Edited)
Posted: 07/26/10 07:45 AM ET
Legal Director, Center for
Constitutional Rights; Professor, Loyola New Orleans
Look what these facts show.
One. The US has seen a surge in
arrests and putting people in jail over the last four decades. Most of the
reason is the war on drugs. Yet whites and blacks engage in drug offenses,
possession and sales, at roughly comparable rates - according to a report on
race and drug enforcement published by Human Rights Watch in May 2008. While
African Americans comprise 13% of the US population and 14% of monthly drug
users they are 37% of the people arrested for drug offenses - according to 2009
Congressional testimony by Marc Mauer of The Sentencing Project.
Two. The police stop blacks and
Latinos at rates that are much higher than whites. In New York City, where
people of color make up about half of the population, 80% of the NYPD stops
were of blacks and Latinos. When whites were stopped, only 8% were frisked.
When blacks and Latinos are stopped 85% were frisked according to information
provided by the NYPD. The same is true most other places as well. In a
California study, the ACLU found blacks are three times more likely to be
stopped than whites.
Three. Since 1970, drug arrests have
skyrocketed rising from 320,000 to close to 1.6 million according to the Bureau
of Justice Statistics of the U.S. Department of Justice.
African Americans are arrested for drug offenses at rates 2 to 11 times higher
than the rate for whites - according to a May 2009 report on disparity in drug
arrests by Human Rights Watch.
Four. Once arrested, blacks are more
likely to remain in prison awaiting trial than whites. For example, the New
York state division of criminal justice did a 1995 review of disparities in
processing felony arrests and found that in some parts of New York blacks are
33% more likely to be detained awaiting felony trials than whites facing felony
trials.
Five. Once arrested, 80% of the
people in the criminal justice system get a public defender for their lawyer.
Race plays a big role here as well. Stop in any urban courtroom and look a the
color of the people who are waiting for public defenders. Despite often heroic
efforts by public defenders the system gives them much more work and much less
money than the prosecution. The American Bar Association, not a radical bunch,
reviewed the US public defender system in 2004 and concluded "All too
often, defendants plead guilty, even if they are innocent, without really
understanding their legal rights or what is occurring...The fundamental right
to a lawyer that America assumes applies to everyone accused of criminal
conduct effectively does not exist in practice for countless people across the
US."
Six. African Americans are
frequently illegally excluded from criminal jury service according to a June
2010 study released by the Equal Justice Initiative. For example in Houston
County, Alabama, 8 out of 10 African Americans qualified for jury service have
been struck by prosecutors from serving on death penalty cases.
Seven. Trials are rare. Only 3 to 5
percent of criminal cases go to trial - the rest are plea bargained. Most
African Americans defendants never get a trial. Most plea bargains consist of
promise of a longer sentence if a person exercises their constitutional right
to trial. As a result, people caught up in the system, as the American Bar
Association points out, plead guilty even when innocent. Why? As one young man
told me recently, "Who wouldn't rather do three years for a crime they
didn't commit than risk twenty-five years for a crime they didn't do?"
Eight. The U.S. Sentencing
Commission reported in March 2010 that in the federal system black offenders
receive sentences that are 10% longer than white offenders for the same crimes.
Marc Mauer of the Sentencing Project reports African Americans are 21% more
likely to receive mandatory minimum sentences than white defendants and 20%
more like to be sentenced to prison than white drug defendants.
Nine. The longer the sentence, the
more likely it is that non-white people will be the ones getting it. A July
2009 report by the Sentencing Project found that two-thirds of the people in
the US with life sentences are non-white. In New York, it is 83%.
Ten. As a result, African Americans,
who are 13% of the population and 14% of drug users, are not only 37% of the
people arrested for drugs but 56% of the people in state prisons for drug offenses.
Marc Mauer May 2009 Congressional Testimony for The Sentencing Project.
Eleven. The US Bureau of Justice
Statistics concludes that the chance of a black male born in 2001 of going to
jail is 32% or 1 in three. Latino males have a 17% chance and white males have
a 6% chance. Thus black boys are five times and Latino boys nearly three times
as likely as white boys to go to jail.
Twelve. So, while African American
juvenile youth is but 16% of the population, they are 28% of juvenile arrests,
37% of the youth in juvenile jails and 58% of the youth sent to adult prisons.
2009 Criminal Justice Primer, The Sentencing Project.
Thirteen. Remember that the US leads
the world in putting our own people into jail and prison. The New York Times
reported in 2008 that the US has five percent of the world's population but a
quarter of the world's prisoners, over 2.3 million people behind bars, dwarfing
other nations. The US rate of incarceration is five to eight times higher than
other highly developed countries and black males are the largest percentage of
inmates according to ABC News.
Fourteen. Even when released from
prison, race continues to dominate. A study by Professor Devah Pager of the
University of Wisconsin found that 17% of white job applicants with criminal
records received call backs from employers while only 5% of black job
applicants with criminal records received call backs. Race is so prominent in
that study that whites with criminal records actually received better treatment
than blacks without criminal records!
So, what conclusions do these facts
lead to? The criminal justice system, from start to finish, is seriously
racist.
Professor Michelle Alexander
concludes that it is no coincidence that the criminal justice system ramped up
its processing of African Americans just as the Jim Crow laws enforced since
the age of slavery ended. Her book, The New Jim Crow: Mass Incarceration in the
Age of Colorblindness sees these facts as evidence of the new way the US has
decided to control African Americans - a racialized system of social control.
The stigma of criminality functions in much the same way as Jim Crow - creating
legal boundaries between them and us, allowing legal discrimination against
them, removing the right to vote from millions, and essentially warehousing a
disposable population of unwanted people. She calls it a new caste system.
Poor whites and people of other
ethnicity are also subjected to this system of social control. Because if poor
whites or others get out of line, they will be given the worst possible
treatment, they will be treated just like poor blacks.
What to do?
Martin Luther King Jr., said we as a
nation must undergo a radical revolution of values.
A radical approach to the US criminal justice system means we must go to the
root of the problem. Not reform. Not better beds in better prisons. We are not
called to only trim the leaves or prune the branches, but rip up this unjust
system by its roots.
We are all entitled to safety. That
is a human right everyone has a right to expect. But do we really think that
continuing with a deeply racist system leading the world in incarcerating our
children is making us safer?
It is time for every person
interested in justice and safety to join in and dismantle this racist system.
Should the US decriminalize drugs like marijuana? Should prisons be abolished?
Should we expand the use of restorative justice? Can we create fair
educational, medical and employment systems? All these questions and many more
have to be seriously explored. Join a group like INCITE, Critical Resistance,
the Center for Community Alternatives, Thousand Kites, or the California Prison
Moratorium and work on it. As Professor Alexander says "Nothing short of a
major social movement can dismantle this new caste system."