A justice system that oppresses black men — just as it’s intended to
Book review by
My first exposure to Paul Butler’s writing was at a legal conference in 1995. I volunteered at the last minute to assess a law review article of his when the person assigned to the paper could not attend the meeting. In the now-famous piece, Butler detailed the harsh criminal sentencing blacks face. He reviewed the centuries-old practice of nullification — in which juries vote not guilty because they think a law is unfair — and boldly encouraged jurors to nullify in cases involving blacks accused of low-level drug offenses. When I finished, I scribbled, “Well done” and “Tenure?” on the first page. After publication, the article generated a firestorm of controversy, including calls for Butler’s job.
With “Chokehold: Policing Black Men,” his new book, Butler has hit his stride. This is a meditation, a sonnet, a legal brief, a poetry slam and a dissertation that represents the full bloom of his early thesis: The justice system does not work for blacks, particularly
black men. With this performance, though, Butler, a law professor at Georgetown University, layers in statistics, quotes from academics, rap lyrics, research findings and personal narratives. It’s a raucous mix, drawing on a range of voices, including Michelle Alexander, Susan Sontag, the movie “The Mack,” Derrick Bell, James Comey, Black Star, Ronaldinho Gaucho, Michel Foucault, Langston Hughes and Touré.
In Butler’s usage, the chokehold, the sometimes fatal neck lock police use to coerce submission, is a metaphor for understanding how racial oppression functions in the U.S. justice system. The chokehold is the invisible fist of the law, a shapeshifter that represents iterations of racial oppression, including slavery, Jim Crow, racial profiling and mass incarceration — and all the other ways the law works to keep black men down. “Efforts to fix ‘problems’ such as excessive force and racial profiling are doomed to fail,” Butler writes. The system works as it was designed to work: The chokehold persists, regardless of the century, the race of the president or good intentions. Butler’s goal is to define, describe and ultimately dismantle the chokehold’s grip.
To build his case, the former federal prosecutor begins by analyzing society’s creation of the black man as thug and demonstrates how this image is used to support inhumane treatment. The harm caused by this linkage is underscored by empirical research indicating that people are more likely to associate negative words (such as “criminal”) with black men than with white men. This association contributes to a sociological link between black men and menace. Butler unpacks the widespread fear of black men and shows that it is largely irrational and, therefore, a flimsy rationale for discriminating against black men.
A chapter called “Black Male Violence: The Chokehold Within” begins with Butler noting that many black men asked him not to include it in the book. They expressed fear that some people would use its references to the high black crime rate to argue that black men deserve the backhand of the law — and a tightening of the chokehold. Butler says that black male violence has not received “sustained analysis in the new discourse about criminal justice reform.” While this claim is debatable, he correctly decides to keep the chapter. He delves into the reasons some black men engage in crime and points out that because most crime is intra-racial, most victims of black offenses are also black.
Butler argues that the prevailing desire to “fix” black men has spawned social programs that miss the mark, and he cites President Barack Obama’s My Brother’s Keeper initiative as one that falls short. Butler argues that racial interventions designed to promote racial justice should not leave out black women. What’s more, focusing on black male achievement will not solve the problem of violence against black men.
Two chapters stand out from the rest. “Sex and Torture: The Police and Black Male Bodies” is riveting. It exposes the sexual invasiveness of some stop-and-frisks, the dehumanizing searches for weapons and contraband police conduct that sometimes involve reaching into a man’s underwear and touching his testicles and buttocks. Butler decries the unfairness that black men are more likely to be subject to frisks than white men. These incidents are experienced as sexual harassment and further marginalize, shame and keep black men in their place. Philadelphia police have recently faced allegations of such unlawful searches, with several black men reporting that the police use this method of stop-and-frisk to harass them, an indignity known as “stop and fondle.” Butler writes that “stop and frisk can be seen as a ‘badge and incident’ of lynching.” Like lynching, it is “expressive,” meant to “destroy individual bodies” and “terrorize all blacks.”
The chapter “If You Catch a Case: Act Like You Know” is compelling and heartbreaking. Its urgency and practicality bring to mind Abbie Hoffman’s “Steal This Book” and “The Negro Motorist Green Book” — the Jim-Crow era travel guide that listed businesses across the country that welcomed black customers. Here, Butler speaks directly to young black men, telling them what to do if they are stopped by police. He cautions them not to wear clothes that “stick out.” The stop, Butler says, is a “masculinity contest between you and the police. You must let the cops win.” Winning requires a show of deference, answering officers’ questions, not raising your voice and saying as little as possible. If you are arrested, Butler says, “Shut the f--- up.”
This is unsettling reading. The submission Butler recommends is soul-crushing. It requires behavior that is antithetical to free human beings. However, choosing a crushed soul over a crushed skull is a no-brainer. As any parent of a black child can tell you, she wants her child to do whatever is necessary to get home safely; everything else can be fixed.
Butler’s book makes a solid case that the chokehold works systematically to deprive black men of humane treatment within the justice system. He concludes his incisive critique by calling for an end to prisons: “U.S. prisons are built for black men, and black men will be free, literally and figuratively, only when prisons are no more.” After acknowledging that “prison abolition sounds crazy,” Butler notes that fewer than 20 percent of all prisoners are serving time for homicide or sex offenses. At the very least, he urges, we should consider alternatives to incarceration for the other 80 percent. He bolsters his abolition argument with a report finding that in the past decade, 27 states have reduced both their rates of incarceration and their crime rates.
One down note in Butler’s presentation is that he doesn’t adequately address how to get more people to care enough about the chokehold to do something about it. There are no easy answers here. Awareness of the problem is necessary but insufficient to spur transformative change.
“Chokehold” is more than a critique of our justice system. It is a declaration of who we are as a country: We are a people who accept and support a justice system that treats people differently based on race, gender, skin tone, income, neighborhood and education. By the end of the book, it’s clear that Butler is asking, “Are we really okay with this?” The chokehold is strangling all of us — but its grip is indeed tightest on the throats of black men.
Eric Garner’s widow, Esaw Garner, weeps during a 2015 vigil at the site where he died in New York. Police had put him in a chokehold.