The Trayvon Martin Case: Racist Color-Blind Justice in Post-Racial America?

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 21^st 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

Bill Quigley

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."