A jus­tice sys­tem that op­presses black men — just as it’s in­tended to

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The Washington Post Sunday - - OUTLOOK - Kath­eryn Rus­sell-Brown

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.

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