Saturday, May 2, 2015

Getting Real Justice: Why a Black Prosecutor Is Not Enough

"The lesson this teaches and which every Afro-American should ponder well, is that a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give. When the white man who is always the aggressor knows he runs as great a risk of biting the dust every time his Afro-American victim does, he will have greater respect for Afro-American life."--Ida B. Wells, Southern Horrors, 1892
"How come...with the thousands of black cops in ain't never picked up the paper, turned on the TV, or the news...and seen white folk crying...because this black cop...shot my loved one in the back of the head...cause he thought the cellphone was a gun. How come you don't see that?...You think black cops is...more spiritual? You think better qualified? Nah...They got enough sense to know that white folks ain't going to tolerate it...And the only reason they do to us what they do cause you tolerate it." -- Dick Gregory (sampled on Killer Mike track "Don't Die")

Ida B. Wells and Dick Gregory were both commenting on the relationship between power-- especially the power to kill-- and perception. White cops see Black people as a threat more often and shoot us down simply because they can. Nothing we can do can make us appear less threatening to them. Five hundred years of enslaving us has built into their subjectivities and institutional culture the sense that we are the sum total of all the threats to the society they defend and can be killed not only without remorse but with great congratulations and promotions (or, at least, given paid leave). Targeting us and pulling the trigger is something they regularly train to do, and, indeed, some were recently caught using actual mugshots of Black men as targets at the shooting range. The fact that the police aren't worried about Black people's responses to their violence against us actually works within their unconscious minds to not make them feel that they need to approach our pain with the same level of care and urgency that they have for whites. And it will require force for us to change this. Nonviolence is not enough by itself, though lots of us Black folks seem ready to trust elected officials of the state to resolve it nonviolently now that we see Black people at the heads of state offices like Mayor of Baltimore (Stephanie Rawlings-Blake) and, of course, President of the United States.

And so it was that many people paused yesterday when Maryland State Attorney for Baltimore Marilyn Mosby announced that she will prosecute six Baltimore police officers for their involvement in the death of Freddie Gray while in custody. 
I heard your call for “no justice, no peace.” Your peace is sincerely needed as I work to deliver justice on behalf of this young man.
The most serious of the charges is second-degree depraved heart murder, a charge that carries a potential 30-year sentence. Many Black folks, even some radical and progressive Black leaders, are celebrating Mosby for her courage, and the local Fraternal Order of Police lodge has condemned Mosby's decision. So everyone's happy, and those who aren't happy are assholes anyway. It seems that the law is finally looking out for us Black folks now that we are part of the state and its leadership. We just have to wait, and Marilyn will deliver.

Now, let's just be real for a minute: Charges don't mean shit about justice. There is nothing worth celebrating. We've seen this before, and we know that actual justice will require us to fight against the police and people like the state's attorney. It won't come through their performance of justice for us, although they will most certainly try to make us believe that it is the best they can do.

In the first place, it's very rare that charges against police acting in the line of duty win convictions. To prove murder-- even depraved heart murder-- you have to have witnesses or other evidence that cannot be easily controverted. Kevin Moore, who filmed cell phone video of police arresting Freddie Gray, is presently in police custody, although it is unclear why. And the only footage it appears that Moore was able to get was the police dragging Gray to the police van while Gray screamed in pain. The police will argue that the injuries that put him in that state were part of the normal course of everyday police activity, as they did in the case of Eric Garner's killer (Daniel Pantaleo) and in the case of the beating of Rodney King and pretty much every incident involving Black people getting beaten and killed by police.

The police are one big gang. They don't just wear similar looking uniforms, drive similar-looking cars, and loan each other equipment and humanpower to help suppress uprisings. They speak up for each other and stay silent for each other, and they maintain this code nationwide with astonishing levels of discipline. Whistleblower Officer Pedro Serrano and others reveal how openly the police behind closed doors refer to their role as one of harassing Black men and boys, harassment that often results in deadly shootings, and to the planting and falsification of evidence as "standard operating procedure." Researcher Sylvia Wynter reported that Los Angeles police in the 1990s were fond of using the incident code NHI-- "no humans involved"-- for incidents involving African Americans. These police practices are used to lock up Black people for decades and to justify killing us. And we know that it gets even worse, with Homan Square, the Chicago PD's very own black site for interrogation and torture, former Chicago police detective John Burge, who tortured hundreds of Black men and is now not only out of prison after a brief stint but is actually drawing a pension, Daniel Holtzclaw, the Tulsa police officer who was a serial rapist of Black women, and reserve deputy Robert Bates, a retired insurance executive who apparently paid Tulsa police handsomely so he could live the thrill of chasing down and shooting Black men, like Eric Harris, whom he killed on April 2 while telling him "Fuck your breath" as Harris breathed his last.

Unfortunately, the police are also the only other witnesses to Freddie Gray's last breaths in that van. Even though the police story, promulgated through a witness who claims he heard Freddie Gray bumping around in the van, that Gray severed his own spine is ridiculous and defies simple logic (severing your own spine even partially is enough to paralyze you, and the very nature of spinal injuries is to make you lose control of your body, so you couldn't do all of that to yourself), it is so far the only story that has witnesses whom the courts are pretty much going to believe. Unless some other, hidden witnesses come forward or somebody heard an officer admit to intentionally acting with disregard to the life of Freddie Gray, no charges will stick for Officer Caesar Goodson and his five cronies because the evidence isn't there to meet the burden of proving murder beyond a "reasonable" doubt.  The prosecutor has to prove that Goodson, the driver of the van, had a "depraved heart" as he accelerated, decelerated, and turned, knocking Gray around in the van, that he was indifferent to what was happening to Gray. Police Chief Anthony Batts has already admitted that the officers violated departmental policy when they failed to buckle him in, but their spin machine has already gotten an excuse for that out there-- that they know they did wrong and it sometimes happens. The police don't even have to present their own counter explanation. Their defense attorneys will just have to prove that it is reasonable to doubt the prosecutor's explanation of events.

But every legal and extralegal technicality that can be used to protect cops will be used to protect cops. The only question is at what level of the process it will occur. If the police are unable to squash it, and the prosecutor has bypassed a grand jury (which, along with extremely biased prosecution, squashed chances for justice in the police killing of Mike Brown), there are still any number of ways. Rekia Boyd was an innocent bystander to a confrontation between a young Black man and Dante Servin, an off-duty Chicago police officer who pulled out a gun and fired into a crowd, killing Boyd instantly. Ten days ago, Judge Dennis Porter dismissed the case against Servin, calling Servin's actions "beyond reckless" so that the charges of involuntary manslaughter didn't apply. And so ended the hopes of Rekia Boyd's family members of getting personal justice for her. It ain't hard to see the game is rigged: The prosecutor under-charges, the judge throws out the case, the police botch the investigation into themselves.

No Ethical Authority
What is much more important is that Freddie Gray is dead from a force so violent that it broke his neck, and the people know it was the police who killed him. At the level of our basic affects, we don't trust the police. We know something about "rough rides" or "nickel rides." HBO drama The Wire depicted them almost humorously, reaffirming old stereotypes of Black men who are insensate to pain, despite their vocal complaints. Philadelphia police paid out $490,000 in 2014 to James McKenna for intentionally injuring him during a 2011 "nickel ride," and has paid millions more for paralyzing spinal injuries to others in recent years. As one commentator points out, the "nickel ride" is so common that it even has several names within the violent culture of police.

We should not be relying on Maryland's Marilyn Mosby to get justice for the murder of Freddie Gray any more than we should have relied on Missouri's Bob McCulloch to get justice for the murder of Mike Brown. Both Mosby and McCulloch are Democrats, and both of them are children (and in Mosby's case, a grandchild and niece) of police officers. The hope that we put in the U.S. justice system to give us justice is surprising, a sign more of our desperation for the flavor of the real thing if we can't actually make the real thing ourselves. But it is worth remembering that, as Black liberation theorist Dhoruba bin Wahad says, "the European nation-state, and America in particular, given the racist nature of its evolution has absolutely no right whatsoever to act as a surrogate executer of justice for people of color." Not only will they always tend to pursue "justice" in ways that preserve their position as legitimate authorities-- in other words, they will tend to botch it-- but in the sight of Black people, the justice system has never really had any ethical authority in the first place. Our reliance on our killers to dole out justice to those acting on its behalf can only ever bring a facsimile of justice, the hollow expression of a desire for a certain performance proving to us that our lives do actually matter, as though we really needed such an acknowledgement from our primary genociders.

As with the Presidency of the United States and the mayorship of Baltimore, people act like position of State's Attorney for Baltimore is like a BMW. Somebody's gotta drive it, it might as well be somebody Black, and we Black folks are proud to see one of us representing in something usually reserved for white folks. I understand that sentiment, but I still say that we should not be proud to have a Black mayor and a Black prosecutor when they are part of that genocidal structure. People who think otherwise have a serious deficit in their theory of what the state is. The state is not the shiny car you've always envied the white boys for having and that you could only hope to get second hand, and when you get a nice new one of your own you're really proud and feel really powerful. That ain't it. The state was founded on your physical and social death (genocide and slavery). And, through things like the police, prison/jail system, and military that targets people who look like you, it remains that deathly apparatus for Black people, even when Black people are heading it. The U.S. state-- and perhaps the modern nation-state in general-- don't know themselves if they are not targeting, assaulting, capturing, and murdering Black bodies. So if the state is a car, us Black folks are the fuel it burns and exhausts out, the roads over which it speeds. And it remains that even if a Black woman is driving.

The police, when not acting in their primary function as the repressive killer elite of the state, work for and with the courts as trained liars. Their apparent role of protecting and serving the people is something one could only believe in if one wasn't listening to Black and Native peoples. In our communities, the police act as an occupying force that claims to have the mission of protect and serve but acts on the mission of search and destroy. They invaded Kathryn Johnston's Atlanta home and Kenneth Chamberlain's White Plains, New York, home and killed both of these senior citizens. They hunted Ramarley Graham to his grandmother's house and shot him. They shot down Julian Alexander right outside of his Anaheim home where he grabbed a broom handle and sought to protect his wife and child from what he thought were burglars. They arrested Anna Brown of St. Louis as she sought help in a hospital for severe leg pain and ended up aggravating the blood clot in her legs that killed her. All of these happened in different locales, but all took on the same pattern in which police officers acting in their capacity as police perceive Black bodies and see something they ought to be targeting, capturing, shooting, restraining, or (when we need help) ignoring.

My friend works at a homeless shelter in East Oakland. East Oakland is a predominantly Black and Latino section of the city. A few months back, a woman residing at the shelter was kidnapped from the shelter in the middle of the day. In the process, the kidnappers exchanged gunfire with someone near the shelter. Shell casings were strewn across the parking lot. My friend said that staff called the police repeatedly, and the police had not arrived 12 hours later. Staff had to bag the shell casings themselves so that people could drive into the parking lot without crushing the shell casings under their tires. The police arrived more than a day after the shooting happened. And, to my knowledge, it never made the news.

How can we form a society together when white people shoot our unarmed youths down like dogs with impunity? 

How can we form a society together when white people fill the air up with mourning for their deaths while people hardly hear about our deaths and they aren't mourned when we do hear about them?

How can we form a society together with those charged to "protect and serve" killing us?

We can see it from here. We connect the dots. If people cannot feel empathy for us, we cannot form a society together. And honestly, we do not form a society with them.

White folks really don't understand that this violence toward us is structural, not just individual, even (perhaps especially) when they say that they do, when they say, "I get it, but you're not the only ones who get treated this way, Black people" or "All Lives Matter." They will cite individual instances of personal injustice or affront they experienced at the hands of police. These anecdotes fly in the face of evidence that shows that in some places we Black folks are 10 times more likely than white people to be incarcerated for marijuana use, even though all races use marijuana at the same rate, and it flies in the face of evidence that shows that our youths are 21 times more likely than white youths to get killed by police. But none of this disputes the structurally antiblack nature of the police, borne out of their long history as the slave patrols. It doesn't matter that the police treat certain white people the way they treat Black people. The police state targets Black folks so much, it gets accustomed to treating all inmates as Black. It's so easy for officers to go into the default mode of targeting, profiling, beating, and killing Black people that sometimes the police state beats up the people it was really meant "to protect and serve," white women.

A Predisposition to Punish
Let's look at some examples. In  Skokie, Illinois, a suburb of Chicago, pigs pushed a white woman, Cassandra Feuerstein into a holding cell, causing her to fall face first into a cement bench. The damage to her skull was so bad it required facial reconstructive surgery. Watch the video so you can compare.

But the police state never stopped beating up Black people. It has a permanent antagonism toward Black people that does not let up for an instant. So even if it expands at times to beat up on white women, nothing changed for Black people. It doesn't make white women more Black or Black people less Black. In fact, white people in general are the police in relation to Black people. The double standard relating to how to police treat them, even during riot situations, is apparent to anyone who is willing to witness it.

Even in attacking a white woman, the police state checks itself, and if you watch the video of the Skokie incident, you can see it. The agents of the state can severely injure this white woman, but they can't go all the way. The state backs off immediately and does no further harm. It hears her screams of pain and feels them as its own. Notice the way the pigs immediately attend to her injuries. Even notice the way the article framing her case doesn't feel the need to mention the charges leading to her arrest. Somehow, people can see a white woman getting abused in jail without feeling the impulsive need to ask "Well, what did she do?" before they can feel for her.

Now, compare that to the death of Anna Brown, 29, a Black woman just over four hours down the road in St. Louis, Missouri. Around 11am on September 20, 2011, Brown, who had been homeless since losing her house in a tornado less than a year before, complained of swollen and painful ankles and entered three different hospitals seeking care. She was actually suffering from a blood clot in her legs, but doctors repeatedly failed to detect the blood clot and discharged her. Doctors examined her three times over the next 24 hours, and released her. After being discharged from the St. Mary's Hospital Emergency Room in Richmond Heights, a suburb of St. Louis, Brown sat in the lobby in a wheelchair and said that she was still in pain and refused to leave until the pain was treated.

The hospital staff called security, and security officer Steve Schaffer called Richmond Heights police, charging Brown with trespassing. Richmond Heights police told Brown to walk and then forced her out of the wheelchair, causing her to fall on her face on the hospital floor. At that time, the police and hospital concluded that she needed another minor examination, but the hospital discharged her again two hours later, and the police forced her out of the hospital to the police car.

Upon arriving at the jail parking lot, Richmond Heights police officer Jason Tharp then dragged Brown from the car and other officers joined in dragging her to the jail cell where they left her on the floor screaming. The blood clot in her leg migrated up to her lungs and killed her as she lay on the floor. After she died, a police officer told fire chief Kerry Hogan that he and the hospital workers "thought she was a drug seeker," to which the fire chief replied, "Well, that could very well be." This is all recorded on closed circuit television (CCTV) obtained by the local newspaper.

So, on one hand, the white woman in Skokie was already under arrest and got thrown into the jail cell by those who are supposed "to protect and serve" white women. When it became apparent that she had been injured, the white woman was immediately surrounded by police officers not forcing her to get up and telling her she wasn't feeling what she was feeling, but actually tending to her needs. Having initially defaulted to their usual assault mode, the officers self corrected to protecting and serving this white woman from themselves. Her screams were heard. Her pain was acknowledged. And the state bent from its customary role as an abuser of Black bodies-- or those blackened by being in such close proximity with Black bodies-- to a caretaker role.

On the other hand, before Brown even got arrested-- in fact, when she was still in the hospital, the space where she was supposed to get treated-- hospital workers had already branded her as a "drug seeker," someone who was just seeking a place to sleep for a few nights. In other words, being surrounded not by police with guns, cuffs, and tasers on their belts but by medical professionals, those whose first charge is to "do no harm," she was still treated as a criminal and thrown to the whims of gratuitous state force. Before the actual police had even been called, the guiding principle in the minds of those charged with her treatment was that she was probably lying about her pain in order to get a drug fix and was therefore a threat to be removed, even with force.

Depraved Hearts
We can look at this situation and see the whole problem with what Black people face in racist America. Let's notice a couple of things. In the first place, the police are not just the "boys in blue." As Frank Wilderson says, "White people are the police." Not only in political society-- the state apparatus-- but also in civil society-- in this case, hospitals-- policing is an imperative that follows Black people everywhere and situates others as white in relation to us. Historically, Wilderson points out, all white people were deputized to police all Black people. And to this day, Black people are available to be policed in any place and for any reason, and all white and nonblack people are deputized to do it. (Tharp was promoted to Senior Patrol Officer six months after he dragged Anna Brown from his squad car to the jail cell, and hospital staff stood by and watched it happen to her. Remember, this is a woman who is screaming in pain that her legs hurt, and he dragged her legs along the ground.) And when there are not enough nonblack people available to do it, a class of Black people, called the Black bourgeoisie (police officers, military personnel,  social workers, ministers, corporate types, teachers, professors, etc.), is deputized to police the masses of Black poor folks.

In the second place, the Black body does not get an empathetic response. Our pain is greeted with disbelief when heard and generally is not heard. One of the best friends from my childhood, a white man, greeted the video of officer Johannes Mehserle shooting unarmed passenger Oscar Grant in the back by saying, "Well, what had he done?" and "Look! He's squirming. That's resisting arrest." (And, of course, Black people buy into the same shit. One Black woman I met in the academy, hearing about Professor Henry Louis Gates getting arrested for breaking and entering into his own home, asked, "Well, what did he do?")

In struggle, we need a theory of what the state is so that we know what to do with it, so that we know why it is not enough to have more Black people in it or even leading its local state's attorney office. But we don't need to look much further than what we can already see in plain sight. The state is not formulated to protect Black people. It does not always exist to destroy us, although it always reserves that right. But it is indifferent to Black suffering. The cessation of our pain and precarious existence does not shape the state's actions, and the state will not stop doing what it does just because Black people say, "Ouch, that hurts." 

If the charges of "depraved heart" were going to apply anywhere, they would have to apply to the whole of america itself. This isn't just true of the state. The same is true of all the other non-state institutions-- collectively known as civil society-- that include educational institutions, hospitals, sports teams, churches, the media, and many others. Civil society defines itself in opposition to Black folks. That is why efforts to expand civil society tend to happen at the expense of Black people. Indeed, it is no accident that, over the last 300 years, the traditional social lubricants of modern bourgeois civil society--- coffee, tea, tobacco, sugar, chocolate, rum-- were slave crops grown in the African diaspora, Africa, the Caribbean, and south Asia, just as the social lubricants of contemporary civil society-- smartphones, tablets, computers, and other tools of social media-- require Black death (including slave-mined coltan from Congo to create them and toxic cadmium dumping in places like Agbogbloshie, Ghana, to dispose of them) in the form of Congolese miners forced to work. Today, two of the harbingers of gentrification-- displacement of Black residents from the urban places we call home-- are coffee shops and the artists' lofts. Even in professional football, a sporting event that brings more people together than any other sport in the USA, Black players are given less time to recover from injuries than are white players.

The quintessential building block of community-- the neighbor or community member-- is a category that refuses Black people, even when Black people are actually neighbors. Consider, for example, Glenda Moore, a Black resident of Staten Island. When Hurricane Sandy washed her SUV away with her two sons, age 2 and 4, she bravely went door to door seeking help from nearby residents to rescue her sons, but none would help her. As her cousin described it, ‘The first person she knocked on, she begged the"m and said: “Please call 911”.‘They told her: “I don’t know you” and closed the door. She tried another door but they turned the lights off. The 5' 3 woman was perceived to be enough of a threat that fellow Staten Islanders wouldn't even call 911 to help her.

Near Orlando, Florida, when Tonya Thomas began shooting her own children, some of her children fled to a next-door neighbor's doorstep and began knocking desperately to be let in. Her neighbors refused to help the children. The children returned to their home and were killed by Thomas who then also killed herself.

Freddie Gray grew up in a West Baltimore neighborhood that was known for high rates of childhood lead poisoning, and in his infancy he was known to suffer the effects of lead poisoning at levels more than seven times the level that legally requires state monitoring. He didn't live far from neighborhoods in Baltimore where Johns Hopkins University tested the effects of lead poisoning on Black children by deliberately placing low-income Black families with young children in homes known to contain lead hazards.

State and civil society, then, are structurally antiblack. It is not enough for progressives to think they can take them over and try to steer them away from doing antiblack things. The state and civil society are antiblack in themselves, not just in their practices. The state would not recognize itself as a state if it were acting for Black people, on our behalf, motivated by our interests. Civil society would not recognize itself as civil society if it were for Black people.

There is no basis for believing that the police or the court system for which they work will ever get us justice because our justice is more than just personal. No Black state's attorney will actualize that kind of justice so long as she draws her paycheck and political capital from the structure that is antagonistic to that form of justice. Our justice requires that we end the structural relationship they have to us, a structural relationship of genocide. And that requires that we build things forceful enough to do that. It requires that we cultivate fighting formations, people's armies, and study how best to use them for freedom struggle.

Forming Fighting Formations
I have been reading Ida B. Wells' Mob Rule in New Orleans and William Ivy Hair's Carnival of Fury, both about a Black man named Robert Charles. Charles was born in 1865 in Copiah County, Mississippi. He most likely watched his father and older male relatives gain their rights to vote when the 15th Amendment was passed, and then lose their rights to vote after the federal troops withdrew and white racists terrorized Blacks out of voting. Despite growing up at the height of racist repression, he became an outspoken advocate of Black people returning to Africa, and he handed out the literature of Reverend Henry McNeal Turner, an early Pan-Africanist. He was likely familiar with the gruesome lynching and dismemberment of Sam Hose, a laborer in Georgia who stood up to his employer. In 1892, Charles and his brother walked fully armed into Rolling Fork, Mississippi, got into a gunfight with a white man, and took back a pistol he had taken from them. In New Orleans on July 23, 1900, as Charles was visiting his girlfriend, some white policemen stopped him. In the resulting confrontation, Charles shot and injured one policeman with his pistol and was shot in the leg. Escaping to his room, he treated his leg wound and retrieved a Winchester rifle and a small metal device he used to make his own bullets. Over the next few days, as he took shelter first in his room and then in a friend’s house, he shot 27 white people who were coming to kill him. He killed 7, including 4 police, before he was killed and his body torn apart by white mobs. In the riots that followed, white mobs murdered and injured many African American residents of New Orleans. 

Robert Charles is considered an example of what Russell Shoats, in his essay "Black Fighting Formations," calls the “free shooter” model of resistance, in which a small number of well-armed individuals terrorizes and immobilizes the more powerful oppressor population and escapes into a small network of safe houses, even when she or he does not have access to a larger fighting formation (like a cell or a guerrilla army). More recent examples include Christopher Dorner, who reported seeing so much racist abuse in his time as a police officer that he published a manifesto and then took up arms against the state and shut down southern California for a week. Lovelle Mixon, tired of the abuses he saw from Oakland police, took out four of them, including two SWAT pigs, within a matter of hours.  Black folks have long had a strained relationship with the police in our communities, especially when forces like COINTELPRO, RICO, STEP, and the PATRIOT act are designed to prevent us from forming groups of freedom fighters. But we can still find ways of getting justice.

Of course, this means that when we do have a large fighting formation, the structure finds itself infinitely more threatened than it is by the occasional free shooter and puts all its efforts into pre-empting, preventing, discrediting, and destroying certain political blocs from forming. 
Gang truces, like the kinds Fred Hampton was negotiating and the kind the Blood, Crips, and other gangs are negotiating now, are a really big problem for the racist structure to handle because they aren't just political formations. They are politicized military formations between Black radical political intellectuals and the growing Black masses who have already proven willing to evade, resist, and even attack the state. And when we are not too blinded with obsession for becoming part of the state and civil society that are killing us, and we see these formations start to form, it inspires more resistance. Indeed, as Frantz Fanon said,
In order to maintain their stamina and their revolutionary capabilities, the people also resort to retelling certain episodes in the life of the community. The outlaw, for example, who holds the countryside for days against the police, hot on his trail, or who succumbs after killing four or five police officers in single- handed combat or who commits suicide rather than 'give up' his accomplices, all constitute for the people role models, action schemas, and 'heroes.' And there is no point, obviously, in saying that such a hero is a thief, a thug, or a degenerate. If the act for which this man is prosecuted by the colonial authorities is an act exclusively directed against a colonial individual or colonial asset, then the demarcation line is clear and manifest. The process of identification is automatic. (Wretched of the Earth, 11)

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