The coronavirus quarantine has been rough. I hear it’s been rough on a lot of people, but I’m not going to lie: it’s been rough on me. Among other things, I finally determined that the steady drumbeat of horrific, and frequently idiotic, Facebook posts required me to deactivate my account a few weeks ago. Yeah, required. Twitter may be next. But a couple days ago, I awoke to the possibility of hope regarding legalized racism, in the form of a letter from the Supreme Court of the State of Washington.

Washington State Supreme Court Issues a Letter Addressing Structural Racism

The Justices addressed the letter to the judiciary and the legal community. Quite frankly, when I first started reading it, I thought someone must have created it as some kind of an Onion piece, a tongue-in-cheek joke. I believed it had to be #FakeNews.

fake news illustration

 

The Letter

So you can see what I’m talking about, I’m going to transcribe it here, in addition to linking to the original letter, even though it’s going to eat 556 words into my always-atrocious word-count.

We are compelled by recent events to join other state supreme courts around the nation in addressing our legal community.

The devaluation and degradation of black lives is not a recent event. It is a persistent and system injustice that predates this nation’s founding. But recent events have brought to the forefront of our collective consciousness a painful fact that is, for too many of our citizens, common knowledge: the injustices faced by black Americans are not relics of the past. We continue to see racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems. Our institutions remain affected by the vestiges of slavery: Jim Crow laws that were never dismantled and racist court decisions that were never disavowed.

The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will. The injustice still plaguing our country has its roots in the individual and collective actions of many, and it cannot be addressed without the individual and collective actions of us all.

As judges, we must recognize the role we have played in devaluing black lives. This very court once held that a cemetery could lawfully deny grieving black parents the right to bury their infant. We cannot undo this wrong—but we can recognize our ability to do better in the future. We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases, and we can administer justice and support court rules in a way that brings greater racial justice to our system as a whole.

As lawyers and members of the bar, we must recognize the harms that are caused when meritorious claims go unaddressed due to systemic inequities or the lack of financial, personal, or systemic support. And we must also recognize that this is not how a justice system must operate. Too often in the legal profession, we feel bound by tradition and the way things have “always” been. We must remember that even the most venerable precedent must be struck down when it is incorrect and harmful. The systemic oppression of black Americans is not merely incorrect and harmful: it is shameful and deadly.

Finally, as individuals, we must recognize that systemic racial injustice against black Americans is not an omnipresent specter that will inevitably persist. It is the collective product of each of our individual actions—every action, every day. It is only by carefully reflecting on our actions, taking individual responsibility for them, and constantly striving for better that we can address the shameful legacy we inherit. We call on every member of our legal community to reflect on this moment and ask ourselves how we may work together to eradicate racism.

As we lean in to do this hard and necessary work, may we also remember to support our black colleagues by lifting their voices. Listening to and acknowledging their experiences will enrich and inform our shared cause of dismantling system [sic] racism.

We go by the title of “Justice” and we reaffirm our deepest level of commitment to achieving justice by ending racism. We urge you to join us in these efforts. This is our moral imperative.

The Signatories

All the Justices of the Washington State Supreme Court signed it. That brought its own surprises.

Those Justices are:

Debra L. Stephens, Chief Justice
Charles W. Johnson, Justice
Barbara A. Madsen, Justice
Susan Owens, Justice
Steven C. Gonzalez, Justice
Sheryl Gordon McCloud, Justice
Mary I. Yu, Justice
Raquel Montoya-Lewis, Justice
G. Helen Whitener, Justice

The letter is a strong indication that at least one Supreme Court in the United States understands, takes responsibility, and encourages progress. As such, it offers the possibility of hope regarding legalized racism. (It may also be mere virtue-signaling. But because of a promise, I cannot make that argument here. Just know that it’s not completely clear that it isn’t that.)

Institutional Racism, Proof, and Arbitrary Power

Institutional Racism

In any event, it was a nice counterpoint to the violation of laws going on around the nation with the support of courts, including right here in Fresno, where I practice law.

In New York, a Manhattan judge decided that the desire of police to arrest, and hold indefinitely, hundreds of protesters—whether peaceful, or not—trumps (no pun intended) New York state laws. To paraphrase the judge, in explaining himself: “The cops and courts try really hard to follow the law. It’s just too difficult.”

One has to wonder if this same judge would have this same opinion if the protesters were white, carrying rocket launchers to buy a sandwich, and protesting the state asking them not to expose their fellow citizens to death just for a haircut. But, then, we’ll never know. Because the police would never think of arresting those people.

Therein lies the institutional component to structural racism.

Burden and Denial of Proof

Apparently somewhere in California, law enforcement officers seized a shipment of masks from #BlackLivesMatter, which were meant to protect peaceful protesters. Authorities gave no reason; they simply seized the masks. It’s difficult to imagine a valid legal reason; it’s easy to imagine that law enforcement simply means to further demonstrate its disagreement with the idea that #BlackLivesMatter.

And, of course, all of this with the support of judges and “justices” who believe that we cannot expect cops to know the difference between right and wrong, unless a prior case has already specifically spelled out the exact circumstances they are encountering when they act immorally, illegally, and unethically. This is true even in cases where every federal judge looking at the case agrees the police violated constitutional law. So strict is the application of qualified immunity doctrine that even if there is law from another jurisdiction that shows the behavior was immoral, illegal, and unethical, it doesn’t count, unless there is such law in the jurisdiction where the immoral, illegal, and unethical behavior occurred. The doctrine provides absolute protection, no matter how egregious the behavior, even—and often especially—when it comes to police murdering black people.

No one else gets the benefit of this standard—not you, not me—just cops, prosecutors, and judges.

Up to now, judges and “justices” have been unwilling to admit that the work they do contributes to the problem. As Scott Greenfield tweeted June 5:

 

Yet denial is not a bug, but a feature—more than that, a requirement—for the persistence of institutional racism. Any honest, principled person knows that it’s wrong for police officers to shoot black children for playing in the park, arrest black men for being in the presence of a white girl, or to handcuff and arrest a 6-year-old child. Among other things.

But, then again, to admit that something “is racist” is to admit it is something bad. To endorse it as good, it must be “not racist.”

And so the idea that racism is baked into the system is unacceptable, even to judges, and especially to the intellectually-dishonest judges—which is a far larger number of them than you could possibly imagine.

Arbitrary Power

Scott’s “Judge, I told you” notwithstanding, cameras alone won’t stop police brutality. Judges did not really need cameras to know what was happening. They are not quite that blind. But institutional racism requires a grant of arbitrary power.

Some of the grant, to be sure, is not given with the goal of granting the arbitary power that is granted. It’s an accident of other forces, like police unions devoid of humanity and ethics, which fight to protect racist police officers. Or the police say, “Fine. You don’t want us behaving like unfeeling animals, arbitrarily attacking citizens? We quit!” And who can blame them? After all, as a police union officer said, “they were only following orders.”

The end result is that these unions sustain structural racism. Judges, and elected leaders, make it easier. And anyone who dares to get in the way may simply have to die at the hands of arbitrary power to keep the system going.

What Makes Structural Racism is So Intractable

Any practicing criminal defense, or civil rights, lawyer can tell you that people do not want to believe that these things happen. But by refusing to accept what they’ve been told thousands of times, the very arbiters of our “justice” system, in denying it, perpetuate and maintain it.

Structural racism—so much a part of America, and all our institutions—is often referred to as “institutional racism.” But institutional racism is actually just one form of structural racism—another apple on the diseased tree.

Structural racism is so much more pervasive that it even conscripts people of color into supporting it. When the Mill Valley mayor, a woman of color, responded to a constituent who asked about what Mill Valley would do to show that black lives do matter, she responded,

It is a council policy that we do not take action on issues that are not of immediate local importance.

After the inevitable backlash, Mayor McEntee issued a “clarification” of her comment:

Let me make it clear that the tragic death of George Floyd is of immediate local importance along with being a national issue … As a person of color, I am acutely aware of the power and importance of words because I have been on the receiving end of bigotry myself. My comments during the meeting referred to a longstanding city council policy regarding national issues and a policy that prevents council members from discussing items that were not previously agendized in accordance with the law. It is clear that I did not express myself well or share with the community what is in my heart.

This demonstrates what makes structural racism so intractable, and explains how it ensnares even people of color. The rules that instantiate the system can appear—maybe even are—not “racial” in-and-of themselves. But frequently, the implementation, instantiation, or expression of those rules ends up perpetuating the problem.[1]I’m not even sure, frankly, how you get from the second thought about a policy on “national issues” and another policy on not commenting on things “not previously agendized in accordance with the law” to the answer given. The constituent’s question to which the mayor was responding specifically asked “what Mill Valley is doing to show that Black Lives Matter.” Since the actual question is not posted, btw, I don’t know if “Black Lives Matter” was capitalized in the original question. If not, it would be even more clear that the question pertains to what Mill Valley was doing to show that the lives of black people in Mill Valley matter to the authorities in Mill Valley.

How Structural Racism Tries to Break People

I agree with @bambidoll on Twitter that the best metaphor I have seen for explaining structural racism, and its staying power, and why it must be demolished, is this:

Listen to the bottom of the two videos first. Because of the tweet I embedded here, the lower video explains structural racism; the upper video explains how this woman reacts to that reality.

And this game—White Monopoly—still isn’t finished. As Jane Hill notes in The Everyday Language of White Racism (2008),

White racism is not just part of American history. Instead, White racist culture today organizes racist practices in White-dominated institutions such as school and health-care facilities, and everyday choices and behaviors by the vast majority of Whites operating as individuals.

Imagine, if you are white—you won’t have to imagine, if you are not white—that you encountered, multiple times each day, people following you around because you’re black. Imagine people calling the police because you’re sitting on a park bench, doing nothing “wrong,” except being black. Moreover, imagine needing to video-record the crazy white woman because she’s telling 911 that you are threatening her and her children, when her children are not there, and you are doing nothing of the sort. Imagine her yelling into the phone:

THIS AFRICAN AMERICAN WOMAN IS ATTACKING ME AND MY CHILDREN!

And all you are doing is sitting there, a black woman sitting in a park where the white woman does not want you to be.

Because you’re black.

This is how structural racism operates. For 400 years, the land “of the free” was built on the stolen labor and whip-scarred backs of black people. When finally white people were forced to let the people go, things changed: periodically black people built something, and white people bombed it, burned it, destroyed it. We did not even confiscate it! We simply destroyed it.

Jim Crow, we say, is over. But it isn’t. There’s a new Jim Crow. Lynching, we say, is a thing of the past. But it isn’t. There’s a new form of lynching that uses guns, police vans, and strangulation by police knees (to make it look like an accident of an allegedly legitimate “control hold”) instead of rope.

And all for the “crime” of doing things while having black skin. Those scars I mentioned a minute ago? They’re still there, and they affect—and infect—us all.

For Now, Only the Possibility of Hope on Legalized Racism

And, yet, there is hope. For now, that hope comes in the form of a letter penned by the Washington State Supreme Court to its colleagues and the legal community. Until and unless other courts follow their lead, it will remain only a possibility of hope. As Erwin Chemerinsky said in the LA Times on June 5, 2020,

Police departments rarely reform themselves.

Both the Trump Administration, and the United States Supreme Court, have together gutted the laws, and thwarted attempts at reform.

Perhaps we are about to encounter a sea change.

One can only hope.

References   [ + ]

1. I’m not even sure, frankly, how you get from the second thought about a policy on “national issues” and another policy on not commenting on things “not previously agendized in accordance with the law” to the answer given. The constituent’s question to which the mayor was responding specifically asked “what Mill Valley is doing to show that Black Lives Matter.” Since the actual question is not posted, btw, I don’t know if “Black Lives Matter” was capitalized in the original question. If not, it would be even more clear that the question pertains to what Mill Valley was doing to show that the lives of black people in Mill Valley matter to the authorities in Mill Valley.

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