George Floyd. Ahmaud Arbery. Breonna Taylor. Atatiana Jefferson. Botham Jean. O’Shae Terry. Antwon Rose II. Stephon Clark. Jordan Edwards. Philando Castile. Terence Crutcher. Greg Gunn. Freddie Gray. Walter Scott. Tamir Rice. Akai Gurley. Laquan McDonald. Michael Brown, Jr. Renisha McBride. John Crawford III. Eric Garner. Jonathan Ferrell. Jordan Davis. Rekia Boyd. Oscar Grant. Sean Bell. Michael Stewart. Clifford Glover.
“The names alive are like the names in graves,” writes poet, MacArthur Prize recipient, and fellow South Carolinian Terrance Hayes in his important work “American Sonnet for My Past and Future Assassin.” Reflecting on the poem, my colleague Will Patrick observed that “the line renders how easily a name belonging to someone who is black in America could go from ‘alive’ to ‘in a grave’” and the painful irony that a fellow student like Jordan Davis “could have been penciling his name on his calculus homework, and the next, it could have been engraved on his tombstone.”
Over these past several days, scholars, activists, policymakers, and other citizens have written, marched, discussed, and expressed extensively the relationship between the history of racial predicates of discrimination and oppression and the protests and riots taking place across the country. This has been particularly acute in the context of the death of yet another unarmed black man coupled with the disproportionate impact of COVID-19 on communities of color.
As we approach the anniversary of the nation’s founding, let us grapple with the legacy of racism historically embedded within the fibers of the American legal process. We can see this from the creation of the Constitution itself; to State v. Mann examining whether treating a slave woman to “a cruel and unreasonable battery” constituted a criminal offense (known as the most notorious decision rendered by a state court); to Dred Scott v. Sandford; to Plessy v. Ferguson; to the oppressive criminal justice system we have in place today. Scholars agree that the Plessy decision set forth an era of brutal, unequal treatment of African-Americans from which the country has yet to recover.
The criminalization of poverty—and now the coronavirus pandemic—are stark reminders of the legacy of race and the criminal justice system. It dates back to the country’s founding: the legal apparatus in the United States has always been about social control. But are we truly keeping order by jailing people who cannot afford fines and fees for misdemeanors? By punishing and re-imprisoning those with minor technical violations? By detaining undocumented migrants for civil violations? By holding girls of color for status offenses? By incarcerating more women of color than ever before? By criminalizing the unhoused population for trying to stay alive? By suspending and expelling African-American children—including preschool age—from schools and contributing to the carceral state? These circumstances are exacerbated in communities where there are overlapping inequalities, many of which are communities of color. Now, on top of all of that, they are dealing with a global pandemic and violent police action ending in the death of another black man.
Even prior to the death of George Floyd, disturbing trends started to emerge around arrests associated with social distancing. According to Gothamist, between March 16 and May 5, partial data released by the New York City Police Department indicated “racial disparities in social distancing enforcement across the city” with the vast majority of summonses issued to people of color. This trend may persist as the pandemic continues to spread across the country.
Although violence and destruction are never the answer in these communities, it is critically important to understand the context that undergirds it. The Aspen Institute’s Criminal Justice Reform Initiative is launching a new podcast called Shades of Freedom, named after a book by one of my former professors, Judge A. Leon Higginbotham, Jr. Looking back through my class notes from that time, Judge Higginbotham once wrote; “Any analysis of race and the American legal process will always be subject to the criticism that a focus primarily from the legal perspective is inadequate because of the failure to deal in detail with the economic, sociological, philosophical, historical, and anthropological factors.” A critical part of the work of the Criminal Justice Initiative will be to work with the Justice Mapping Project in co-creating a Justice Audit—in collaboration with community partners—in localities across the country. We believe this is critically important to the interests of impactful, sustainable, transformative criminal justice reform and social change in neighborhoods of overlapping inequalities.
The need to institutionalize an annual audit of criminal justice services, particularly where they concentrate in disproportionately high doses, is more evident today than ever. The Justice Audit is especially attuned to these important dimensions. While it is designed to audit the operations of the justice system across the entire continuum from crime and policing to incarceration and reentry—including the very important contextual issues described by Judge Higginbotham surrounding the criminal justice system—it does so by setting them squarely in the empirical and experiential context of their starkly disproportionate impact in particular neighborhoods. Equally and even more germane to demonstrations in the street, the audit is designed to report and track the forms of governance, training, and oversight active in or absent from each criminal justice agency across the continuum, including the police. More importantly, the audit is rooted in community-engaged development, transparency, and accountability in ways that push us toward a much needed form of community-involved justice.
The closing line of this Hayes’ poem is haunting; “Probably the dark blue skin of a black man matches the dark blue skin of his son the way one twilight matches another.”
George Floyd. Ahmaud Arbery. Breonna Taylor. Atatiana Jefferson. Botham Jean. O’Shae Terry. Antwon Rose II. Stephon Clark. Jordan Edwards. Philando Castile. Terence Crutcher. Greg Gunn. Freddie Gray. Walter Scott. Tamir Rice. Akai Gurley. Laquan McDonald. Michael Brown, Jr. Renisha McBride. John Crawford III. Eric Garner. Jonathan Ferrell. Jordan Davis. Rekia Boyd. Oscar Grant. Sean Bell. Michael Stewart. Clifford Glover.
Our actions must keep their names alive. And let us endeavor—with all that we have and everything we can muster—to ensure that this twilight does not match another.
