Turmoil in America; an Exercise in Racism

I have not been able to write on this subject for quite some time because I did not have the words in me to adequately depict my frustration and anger relative to this topic. For days, weeks, years, I have been reflecting on a repeated occurrence in the United States - the brutal murder of black men and women at the hands of police officers. In the last couple of days, as I wrote thoughts down, I came across journal entries from 2014, and earlier, reflecting on the deaths of Eric Garner, Trayvon Martin, and more. And I found myself stunned as I read my own words back to me. Same thoughts, same emotions, same frustration, and same questions, all met with the blunt realization that there is a complete and utter lack of meaningful change.

Now, I recognize that I am, regardless of my personal experiences, writing and interpreting from a place of privilege. That I, as a white woman, have not experienced the blatant racism, microaggressions, underhanded comments and actions, and lost opportunities solely based on the color of my skin as my friends, colleagues, and fellow Americans of color have. What I have done is witnessed such conduct, simmering with anger and frustration in its periphery, speaking out against it - confronting it bluntly. What I have done is helped represent families bringing civil lawsuits against police officers for the wrongful death of their loved ones. I have fought, from a criminal defense standpoint, for my clients’ due process, fairness, and innocence in a system riddled with disparate treatment. I have seen, first hand, the nonchalant disregard for laws and process with which many police officers generally operate - the entitled behavior that comes with the application of protections in the form of “qualified immunity” or “reasonable suspicion.” Those sound byte words figures of authority in government and law enforcement so love to throw around when convenient. The proven psychological impact that such environment stimulus has on the conduct of an individual with perceived authority. We are living and watching the Stanford Prison Experiment play out in front of our eyes, except here, it is real life, without control group and end dates. It is clear that in this country, authority and power take precedence over human life, particularly black human life.

I cannot begin to imagine the type of people that judge others or treat people differently solely on the basis of color (or gender, nationality, ethnicity, etc.). I sit with tears in my eyes and a pit in my stomach reading commentary and feedback that is so clearly racist and unencumbered, it’s scary. And I have to wonder, what happened to these people? What kind of upbringing and teachings were they resorted to? Why and how are they so hateful toward individuals whom they don’t know? I sincerely struggle to find reason or rationale in such conduct toward other human beings. But, I think that’s the point - there is no reason for racism. It is simply unacceptable and those who so openly and triumphantly showcase their bigoted views need to be help accountable for the same.

Yesterday, news broke of the horrific injustice in Breonna Taylor’s case. My heart sank. This is a woman who was asleep in her own home. A woman who was shot and killed while she rested. A woman with a bright future taken from her under the guise of mistaken police conduct. A woman, peacefully sleeping next to her boyfriend, who legally defended his home in a Castle Doctrine state. A mistake by police. A mistake in a profession where mistakes are simply not acceptable. A mistake. In any other circumstance, an accidental murder, is still a murder. That’s why the criminal system has various degrees applicable to murder - to account for mens rea (criminal intention) and the actus reus (criminal act) of a crime. The accidental part is taken into account by the charge. But a murder is a murder is a murder no matter by whose hands or conduct it occurs. I simply could not believe it. But I’ve said the same and felt that way too many times before.

When we talk about police and meaningful change, I truly believe that removing the protections of qualified immunity, as well as amending the election process for district attorneys and local judges is an imperative change that needs to occur to adequately safeguard citizens as it would work to create a shift, even in the most minute of ways. For those who are not aware, “qualified immunity” is a judicially created doctrine (1982) that shields government officials from constitutional violations (such as excessive force) for money damages (i.e. civil cases) under federal law so long as an official has not violated clearly established laws. While qualified immunity does not directly impact criminal cases or criminal prosecution, it does play an important role in police brutality cases where so many families are left solely with civil litigation options due to the lack of criminal prosecution of officers. The application of qualified immunity can protect officers in the civil context, leaving families without justice or resolve for the wrongful loss of their loved one. To be clear, the civil and criminal processes for such conduct are separate and distinct procedures under law that do not have any bearing on each other. Just because a family reaches a settlement or resolution on a civil claim does not mean they are prohibited from obtaining justice through the criminal process. The district attorney (“DA”) decides who will be indicted (only some states use grand juries, in which only the prosecutor presents evidence without a judge present using rules of evidence to determine whether an individual should be indicted). And to be fair, a DA has the power to indict a ham sandwich if he or she wants to.

With that said, DAs hold significant power in the criminal justice process. So it is imperative to note that these individuals are elected. This is why voting matters significantly, not solely during presidential election years, but at all times, particularly when local governments have such key positions up for election (typically up for re-election every 4 years). Many run on “tough on crime” initiatives that result in disparate treatment of black populations only to be sentenced by elected local judges who apply disparate sentencing parameters for black populations, only further deepening the divide on treatment of whites and blacks in the criminal justice system. To be fair, sentencing guidelines do take into account prior offenses, criminal history, use of weapons, other enhancements, as well as the crime itself, but they spit out a numerical range for sentencing purposes, often quite large, to the judge’s discretion in application and administration. I have always thought (and continue to think) that positions such as those held by DAs and judges should not be elected offices. Their jobs are too important, too guided and impactful, and too lasting and powerful to be left to the influence of the vote, political ambitions, and the prospect of re-election. Those individuals should not be bogged down with whether they will be re-elected for doing their jobs. They should be able to work and administer laws in consistent, fair, and lawful ways without the concern of voter reaction and retaliation. Which is why, even minor changes such as the ones I have highlighted above, would work to minimize the drastic difference of the scales of justice when applied to black and white individuals.

Here’s the thing, we have, for too long, been blaming the protestors, focusing on their choice of protest, without listening to the cause. We have continued to bastardize the meaningful pleas for change in the context of police brutality without addressing it directly for what it is. We have called peaceful protests disgraceful. We have made a mockery of the criminal justice system in upholding its laws when it comes to the prosecution of officers who have done wrong. We have continued to deepen the divide with a President whose hateful rhetoric has only worked in successfully polarizing the country in ways unimaginable. We have been empowered to kill, to hate, and to disrespect fellow Americans solely on the basis that they are different in certain ways.

How did we get here? I ask myself this question regularly. I have lived through war - literal war - as Former Yugoslavia broke apart 1991-1995. I have seen my people ethnically cleansed and murdered for being different, for wanting more. We are on the brink of a monumental shift in this country and if things continue like this, we will all be casualties of the process despite all of the warning signs and alarms sounded. We are in a scary place. And we are in for the fight of our lives. Rise up.

-a.g.l.