(Re)Framing Race in Civil Rights Lawyering
abstract. This Review examines the significance of Henry Louis Gates, Jr.’s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation’s legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Road—the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy—to the practice of law inside civil-rights and criminal-justice systems and, more generally, to critical theories of race, the persistence of racism, and race-conscious legal representation. To that end, this Review interrogates and reimagines how race should be situated in the legal representation of clients of color. Building upon Gates’s discussion of the images and counternarratives created by Blacks as forms of resistance, it examines how those tools can be a means for galvanizing struggles against antiblack racism in the United States in the past and today.
Read from the intersection of theory and practice, Gates’s Stony the Road offers several instructive lessons on race and legal representation germane to lawyers, judges, and academics. The first lesson is that the white-supremacist tropes, narratives, and images of the postbellum periods of Redemption and Jim Crow segregation continue to frame our legal consciousness of race, effectively shaping the roles, mediating the relationships, and organizing the methods of the lawyering process in civil-rights, poverty-law, and criminal cases. The second lesson is that the trials of these cases provide a forum for lawyers, judges, jurors, and even witnesses to race-code the identity of accused and convicted offenders, impoverished clients, and victims of discrimination in ways that reify those tropes and diminish the agency of individuals, groups, and communities of color. The third lesson is that the trial of such cases also affords lawyers and clients meaningful, collaborative opportunities to reframe race-coded identity and provide new visions of self, namings, and identities. Such reframing can recover the presence of black agency, enhance the exercise of black power, and contextualize the impact of systemic racism on individuals, groups, and communities as a whole.
author. Angela Onwuachi-Willig is Dean and Ryan Roth Gallo and Ernest J. Gallo Professor of Law, Boston University School of Law. Thanks very much to Provost Jean Morrison for her research support. I give special thanks to my husband, Jacob Willig-Onwuachi, and our children, Elijah, Bethany, and Solomon for their constant love and support. Anthony V. Alfieri is Dean’s Distinguished Scholar, Professor of Law, and Director, Center for Ethics and Public Service, University of Miami School of Law. Many thanks to Ellen Grant, Amelia and Adrian Grant-Alfieri, Eric Prileson, and the University of Miami School of Law librarians for their everlasting support. We thank David Abraham, Scott Cummings, Andrew Elmore, Walter Goncalves, Pat Gudridge, Alexis Hoag, Peter Margulies, Talia Peleg, Jenny Roberts, and Jeffrey Selbin for their helpful comments, and we are grateful to Kshithij Shrinath and the Yale Law Journal team for superb editing and amazing patience.
Introduction
The community at St. Paul’s J.J. Hill Montessori School in St. Paul, Minnesota—students, parents, and employees alike—loved Philando Castile, a black cafeteria supervisor who made their days brighter with his warm and welcoming smile, who consistently encouraged the students he nourished every day with lunch to eat their “veggies,” and who affectionately became known to all as “Mr. Phil.”1 Following Castile’s premature and tragic death at the hands of Officer Jeronimo Yanez, J.J. Hill community members remembered the thirty-two-year-old son of Valerie Castile, boyfriend of Diamond Reynolds, and father figure to Dae’Anna, Reynolds’s then-four-year-old daughter, with an abundance of memories and praises. They described Castile as nice, caring, smart, patient, quiet, generous, gentle, funny, soft-spoken, kind, respectful, cheerful, and even overqualified for his position as a cafeteria supervisor.2 Indeed, a headline from Time magazine communicated that Castile “was a role model to hundreds of kids.”3Castile’s former colleague at J.J. Hill, Joan Edman, a then-sixty-two-year-old retired paraprofessional, told a Time reporter that Castile was a hard worker who closely followed the rules. Edman explained that she had “never seen anybody take that kind of role so seriously. . . . He followed directions carefully.”4 From all accounts, everyone who had the great fortune of knowing Castile regarded him as an “exceedingly gentle and unfailingly kind man who did everything right.”5
Despite the realities of who Castile was as a person, on July 6, 2016, when Officer Jeronimo Yanez pulled Castile over in a traffic stop (for what would be around Castile’s fiftieth police stop in a little over a decade),6 Yanez simply could not see Castile as anything more than a racial stereotype. For Yanez, Castile was, as Henry Louis Gates, Jr. would say, “an already read text.”7 Although the officer had purportedly stopped Castile only because of a broken tail light,8 which by itself should not make any driver suspicious, the officer began his interactions with Castile with deep suspicion of the black man he saw before him. Whether Yanez’s racial biases were conscious or nonconscious, he began to feel apprehensive of Castile and read him as dangerous almost from the beginning. When Yanez first described his initial encounter with Castile, Castile’s girlfriend Reynolds, and her daughter in the backseat, he explained:
I told them the reason for the traffic stop and then I wasn’t going to say anything about the marijuana yet because I didn’t want to scare him or have him react in a defensive manner. Um, he didn’t make direct eye contact with me and it was very hard to hear him, Uh he was almost mumbling when he was talking to me. And he was directing his voice away from me as he was speaking and as I was asking questions. Uh he kept his, hands in view and then I uh I believe I asked for, his license and insurance. And then I believe they told me, they asked for the reason for my traffic stop. And I told ‘em the reason was the only, I think I told ‘em the only rea, the reason I pulled you over is because the only active brake light working was the rear passenger side brake light.9
A close reading of Yanez’s words illustrates how racial stereotyping must have shaped his perceptions of Castile, making him unable to see Castile—a dark-skinned black man with locs10 and, as Yanez would later describe, “a wide-set nose”11—as anything other than dangerous and criminal.12 For instance, the quiet and soft-spoken voice that J.J. Hill community members found to be one of Castile’s endearing qualities was heard by Yanez as the incoherent mumblings of a man with something to hide. Additionally, rather than viewing the actions that Castile—a black man who had been subject to police traffic stops on around fifty different occasions—was clearly engaging in to appear nonthreatening and thus be safe from any police violence as innocuous, Yanez viewed Castile’s conduct with grave distrust and fear. It did not matter that Castile’s actions read like a veritable script of “The Talk,” an intergenerational script of advice and warnings by black parents and nonblack parents of black children that is designed to prepare black kids for surviving the police stops they will encounter in our racist society.13 As Yanez explained in the quote above, Castile kept his “hands in view,”14 and Castile did not stare at him or make “direct eye contact” with him.15 Castile even politely warned the officer about the legally registered gun that he had in his possession,16 not as a means of alarming the officer (which it did), but instead as a means of relieving Yanez and assuring him that he was not in danger. After all, what person intending to do harm to an officer by shooting him actually warns the officer, who is armed himself, that he has a gun on him, thereby eliminating the element of surprise and any advantage he could have had in a shootout with the officer?
Still, racism and bias won out over common sense and logic during the approximately fiftieth stop for Castile, pushing Yanez to shoot Castile as Castile sought to comply with Yanez’s instruction to provide him with his license and registration. Yanez, however, did not see an effort to comply. Instead, he saw in Castile an image he had deeply internalized of the dangerous, criminal, out-of-control, rule-defying-and-breaking black man.17 Like so many implicit bias studies have shown, Yanez imagined a gun in the hands of a black man in circumstances where he would not have imagined one in the hands of a white man.18 As Yanez asserted about Castile,
I, believe I continued to tell him don’t do it or don’t reach for it and he still continued to move. And, it appeared to me that [h]e had no regard to what I was saying. He didn’t care what I was saying. He still reached down. . . . And, at that point I, was scared and I was, in fear for my life and my partner’s life. . . . I was telling something as his hand went down I think. And, he put his hand around something. And his hand made like a C shape type um type shape and it appeared to me that he was wrapping something around his fingers and almost like if I were to put my uh hand around my gun like putting my hand up to the butt of the gun.
. . . .
. . . [He] appeared defensive to me . . . .
As I was giving him direction about what to give me . . . I felt that he had no regard to what I was saying. He didn’t care what I was saying. He didn’t want to follow what I was saying so he just wanted to do what he wanted to do.19
In the end, Yanez saw what society had taught him to see in black people and, in this instance, black men: danger. Yanez saw defiance and a disregard for the rules from a man known for his careful attention to instruction and directions. And, in turn, Yanez felt what society had shown him to feel in response: trepidation and fear. At no time during the encounter did Yanez come to see the real Castile, nor did he try to do so. Had Yanez seen Castile as he truly was and as so many around him knew him to be, Yanez might have noticed what Castile’s girlfriend Reynolds proclaimed to be true on that fated day of July 6, 2016, that “[n]othing within [Castile’s] body language said shoot me.”20
Confused by the unnecessary killing of their beloved Mr. Phil, the two children of Kirkja Janson, a white mother who made a point of openly speaking with her white children about the racial stereotypes that she believes motivated Yanez’s decision to shoot Castile, posed an important question to their mom. They innocently asked, “How could anyone think Mr. Phil was dangerous?”21
In his important new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, Henry Louis Gates, Jr.22 answers this innocent question by presenting the images, stereotypes, and narratives that White23 constructed of Blacks to deepen and ensure the life and legacy of white supremacy during the Reconstruction, Redemption, Jim Crow, and Harlem Renaissance eras, plus today. In many ways, Gates’s response in Stony the Road mirrors the actual response given by mother Kirkja Janson to her children. Janson replied to her kids: “[T]here are stereotypes out there that black people aren’t going to follow the rules and that black men, especially, are more dangerous than other men.”24 She continued, “It’s not based on the individual’s behavior. It’s based on stereotypes that go back a long time.”25
In Stony the Road, Gates reveals how this practice of constructing black people as an other to be feared,26 the helpless and childlike fool to be controlled and directed,27 the shiftless buffoon to be pushed to work,28 and the vicious and sex-crazed brute to be tamed29 continues to thrive in society today.In so doing, he introduces readers to the “Old Negro”—to the “stereotyped and debased” images of black people that were first defined during slavery and that have been reimagined throughout our nation’s history in order to justify the dehumanizing treatment that Blacks have long faced in the United States.30 As Gates declares early on, the “Old Negro” was “rural, Southern, impoverished, illiterate, premodern, ‘uncivilized,’ [and] even ‘unwashed.’”31 At the same time, Gates relays the emergence of the images and counternarratives that were created by Blacks as forms of resistance and as a means of galvanizing struggles against antiblack racism in the United States in the past and today.32 These images and counterstories center on what Gates refers to as the “New Negro.” In depicting the “New Negro,” Gates also critiques the manner in which presentations of the “New Negro” were entrenched in the “politics of respectability” and reified troubling assumptions about class differences among Blacks, including the need for the most “Talented Tenth” of the race to guide the masses.33
Although widely acclaimed in the media,34 Stony the Road has received scant attention in the legal realm. Indeed, neither academics, nor practitioners, nor judges have addressed its significance for the study of racism and its evolution in our nation’s legal system or for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. The purpose of this Review is to explore the relevance of the racial narratives distilled by Gates in Stony the Road to the practice of law inside this nation’s civil- and criminal-justice systems and, more generally, to critical theories of race, the persistence of racism, and race-conscious legal representation. To that end, this Review fuses a growing body of work on race and the lawyering process in the fields of civil rights,35 criminal justice,36 and poverty law,37 at times culling from the literature of legal ethics38 and legal education.39 The goal of this synthesis is to interrogate and reimagine how race should be situated in the legal representation of individual, group, and community clients of color.40
Read from the intersection of theory and practice, Gates’s Stony the Road offers several instructive lessons on race and legal representation germane to lawyers, judges, and academics. The first lesson is that the white-supremacist tropes, narratives, and images of the postbellum periods of Redemption and Jim Crow segregation continue to frame our legal consciousness of race. Much like white supremacist tropes, narratives, and images framed how then-Officer Yanez saw and understood Philando Castile during his approximately fiftieth police stop on July 6, 2016, they also shape the roles, mediate the relationships, and organize the methods of the lawyering process in civil-rights, poverty-law, and criminal cases. The second lesson is that the trials of these cases provide a forum for lawyers, judges, jurors, and even witnesses to race-code the identity of accused and convicted offenders, impoverished clients, and victims of discrimination in ways that reify white-supremacist tropes and diminish the agency of individuals, groups, and communities of color. Yanez’s defense testimony did this to Castile, defining Castile as someone he was not while Castile, in death, had no power to tell his own story and marking Reynolds as somehow less trustworthy because she had smoked marijuana that morning.41 The third lesson is that the trial of such cases also affords lawyers and clients meaningful, collaborative opportunities to reframe race-coded identity and provide new visions of self, namings, and identities. Such reframing can recover the presence of black agency, enhance the exercise of black power, and contextualize the impact of systemic racism on individuals, groups, and communities as a whole.
The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white-supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. This dual analysis recounts the institutionalization of white supremacy in the United States and the articulation of an opposing narrative of black agency, a narrative of civic community and cultural self-defense that is resonant today. By sketching the forms of Jim Crow imagery, and searching for the “Old Negro” and the “New Negro” dichotomies within the discourse of black people, Gates erects a critical backdrop for lawyers to understand the stereotypical beliefs that pervade white-supremacist ideology. In so doing, Gates illuminates how Jim Crow narratives infected (and continue to infect) law and why those narratives are still with us in proceedings ranging from high-profile race discrimination cases to lesser-known criminal trials.
Part II examines the lawyering process as a rhetorical site where racialized narratives and racially subordinating visions that trace their origins back to antebellum images of the “Old Negro” are adapted and deployed for use, interpretation, and rulings by lay witnesses, lawyers, experts, jurors, and judges during litigation. For example, Part II explores how lawyers have utilized stock race narratives42 linked to “Old Negro” stereotypes by using terms that have generally, and negatively, been associated with racial groups that have been debased in our society, instead of evidence and evidence-based terms of individual actions and contexts, to prove the purported dangerousness of defendants to jurors, who in turn rely on the harmful associations in the narratives they are told to read individual defendants and judge them in ways that comport with stereotype. Similarly, Part II analyzes how this same set of courtroom characters have employed racially subordinating visions that find their roots in the visual rhetoric of postbellum-Jim Crow laws and practices, as recorded by Gates in Stony the Road,tocast individuals, groups, and entire communities in terms of demeaning racial caricatures.
Part III evaluates the omnipresence, and the almost inescapability, of racialized narratives and racially subordinating visions under dominant legal regimes, namely under the race-neutral lawyering-process traditions and legal-ethics conventions that are integral to the profession. In many ways, racialized and racially subordinating visuals and narratives have become so deeply embedded and entrenched in our society that one need not speak or acknowledge race to racially frame and race-code any particular individuals or have the listeners or readers of those stories understand those individuals as linked to a particular race—in these cases, Blacks. A wide span of lawyers—criminal prosecutors and public defenders as well as civil-rights and poverty lawyers—routinely craft seemingly race-neutral, but very much racialized narratives and images in their work and thus implicitly justify these narratives as either natural or necessary to the legal process.43The logic of these racist tropes can be traced to the science, literature, and symbolism of Jim Crow segregation as excavated by Gates in Stony the Road. Such naturalistic rationales appeal to an immutable social order of race-based hierarchy, one that assumes the natural superiority of whiteness, the natural inferiority of blackness, and the accuracy of the racialized narratives and racially subordinating visions as a result. Further, necessitarian rationales invoke the adversary-system-derived duty of aggressive advocacy and the paternalistic obligation of means-oriented intervention to justify the use of race-infected narratives and visions.
Part IV puts forward an alternative set of race-conscious advocacy practices and ethics precepts infused with antisubordination norms of racial dignity and equality. It garners these norms from the early black-resistance movements documented by Gates and adapts them for use in contemporary legal cases attacking systems of structural inequality. Although the search for such alternative race-conscious practices and precepts reveals the continuities linking past resistance movements, such as the New Negro Renaissance, to the present Black Lives Matter movement, it also exposes the common tensions dividing those movements, especially intraracial class conflict and the politics of respectability.
Maja Beckstrom, How Parents Are Talking to Their Kids About Philando Castile’s Death, TwinCities: Pioneer Press (July 14, 2016, 5:16 PM), https://www.twincities.com/2016/07/14/philando-castile-shooting-parents-talking-kids [https://perma.cc/6CR5-X3UK].
See Melissa Chan, Philando Castile Was a Role Model to Hundreds of Kids, Colleagues Say, Time (July 7, 2016, 2:47 PM EDT), https://time.com/4397086/minnesota-shooting-philando-castile-role-model-school [https://perma.cc/WQ4E-DCRZ]; Bill Chappell, Philando Castile Is Remembered by St. Paul Public Schools: ‘Kids Loved Him,’ Nat’l Pub. Radio (July 7, 2016, 1:31 PM EST), https://www.npr.org/sections/thetwo-way/2016/07/07/485114263/philando-castile-is-remembered-by-st-paul-public-schools-kids-loved-him [https://perma.cc/3ULF-FHLE]. The St. Paul Public School District, where Castile worked for fourteen years (since he was nineteen years old), provided the following statement in relevant part:
Colleagues describe him as a team player who maintained great relationships with staff and students alike. He had a cheerful disposition and his colleagues enjoyed working with him. He was quick to greet former coworkers with a smile and hug.
One coworker said, “Kids loved him. He was smart, over-qualified. He was quiet, respectful, and kind. I knew him as warm and funny; he called me his ‘wing man.’ He wore a shirt and tie to his supervisor interview and said his goal was to one day “sit on the other side of this table.”
Those who worked with him daily said he will be greatly missed.
Chappell, supra.
Ariel Scotti, Philando Castile Left Behind Hundreds of Kids Who Loved Him at the School Where He Worked, N.Y. Daily News (June 22, 2017, 12:49 PM), https://www.nydailynews.com/news/national/philando-castile-left-behind-395-kids-loved-article-1.3269078 [https://perma.cc/KWD5-5VDY] (quoting a J.J. Hill parent).
Sharon LaFraniere & Mitch Smith, Philando Castile Was Pulled over 49 Times in 13 Years, Often for Minor Infractions, N.Y. Times (July 16, 2016), https://www.nytimes.com/2016/07/17/us/before-philando-castiles-fatal-encounter-a-costly-trail-of-minor-traffic-stops.html [https://perma.cc/QAR8-4RFP] (“In a 13-year span, Philando Castile was pulled over by the police in the Minneapolis-St. Paul region at least 49 times, an average of about once every three months, often for minor infractions.”); Eyder Peralta & Cheryl Corley, The Driving Life and Death of Philando Castile, Nat’l Pub. Radio (July 15, 2016, 4:51 AM EST), https://www.npr.org/sections/thetwo-way/2016/07/15/485835272/the-driving-life-and-death-of-philando-castile [https://perma.cc/AF8L-UJR2] (“Of all of the [forty-six] stops, only six of them were things a police officer would notice from outside a car—things like speeding or having a broken muffler. The records show that Castile spent most of his driving life fighting tickets. Three months after that first stop [just before his nineteenth birthday], for example, his license was suspended and he went into his first spiral: Police stopped him on Jan. 8, 2003. They stopped him on Feb. 3 and on Feb. 12 and Feb. 26 and on March 4.” (emphasis added)); Philando Castile Had Been Stopped 52 Times by Police, CBS Minn. (July 9, 2016, 9:00 AM), https://minnesota.cbslocal.com/2016/07/09/philando-stops [https://perma.cc/T4ZE-HV4H] (“[Castile] was assessed at least $6,588 in fines and fees, although more than half of the total 86 violations were dismissed, court records show.”).
Just sixteen hours after the shooting, Officer Yanez offered the broken taillight as his reason for stopping Castile. Mark Berman, What the Police Officer Who Shot Philando Castile Said About the Shooting, Wash. Post (June 21, 2017, 5:22 PM EDT), https://www.washingtonpost.com/news/post-nation/wp/2017/06/21/what-the-police-officer-who-shot-philando-castile-said-about-the-shooting [https://perma.cc/9A8J-YHSM]. Days later, the officer changed his story, asserting that he stopped Castile because he fit the description of a suspect who had committed a robbery days earlier because Castile had a “wide-set nose.” Angela Bronner Helm, Report: Philando Castile Was Pulled over Because He Matched Description of Suspect with ‘Wide-Set Nose,’ Root (July 10, 2016, 9:46 AM), https://www.theroot.com/report-philando-castile-was-pulled-over-because-he-mat-1790855964 [https://perma.cc/5XCM-EK4F] (quoting Castile’s uncle as saying, “It’s kind of hard to see flared nostrils from a car”).
See Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1080 n.2 (2010) (asserting that “locs” consist of sections of hair that are “permanently locked together and cannot be unlocked without cutting” (quoting Shauntae Brown White, Releasing the Pursuit of Bouncin’ and Behavin’ Hair: Natural Hair as an Afrocentric Feminist Aesthetic for Beauty, 1 Int’l J. Media & Cultural Pol. 295, 296 n.3 (2005)); Angela Onwuachi-Willig, Undercover Other, 94 Calif. L. Rev. 873, 873 n.3 (2006) (defining locs). According to Shauntae Brown White, the term “loc” or “lock” is preferred to the term “dreadlock,” as “the term dreadful was used by English slave traders to refer to Africans hair, which had probably loc’d naturally on its own during the Middle Passage.” White, supra, at 296 n.3.
Helm, supra note 8. At trial, retired Deputy Police Chief Jeffrey Noble testified on behalf of the prosecution. Describing Noble’s testimony about Yanez’s contention that he pulled Castile over because the “wide-set” nature of his nose marked him as a suspect, a reporter recounted that Noble asserted: “No other ‘reasonable’ officer would have considered Castile the suspect. (Authorities have said he wasn’t.).” Specifically, Noble emphasized: “I mean, hundreds of black men had to have driven by. . . . That’s absurd.” Chao Xiong, Expert: Jeronimo Yanez’s Actions in Killing Philando Castile Were “Objectively Unreasonable,” Star Trib. (June 8, 2017, 9:28 AM), https://www.startribune.com/use-of-force-experts-expected-to-take-the-stand-in-jeronimo-yanez-trial-for-philando-castile-shooting/427033361 [https://perma.cc/BG53-PATZ].
See Jennifer L. Eberhardt, Paul G. Davies, Valerie J. Purdie-Vaughns & Sheri Lynn Johnson, Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 383 (2006) (finding that, in white-victim cases, the more phenotypically black the defendant appears, the more likely jurors will sentence that person to death).
Castile’s mother, Valerie, had “The Talk” with her son. See Michelle Garcia, Philando Castile Did What His Mother Told Him to Do Around Police. A Cop Shot Him Anyway, Vox (July 7, 2016, 1:30 PM EDT), https://www.vox.com/2016/7/7/12119344/philando-castile-mother-valerie-castile [https://perma.cc/JY5B-5E9Q] (noting that Castile “was given the same lecture so many black people in America hear at one point in their lives”); see also John Blake, George Floyd. Ahmaud Arbery. Breonna Taylor. What Can Black Parents Possibly Tell Their Kids Now About Staying Safe?, CNN (May 29, 2020, 12:39 PM ET), https://www.cnn.com/2020/05/29/us/black-parents-children-safety-talk-blake/index.html [https://perma.cc/H8J9-6N9G] (discussing how futile “The Talk” appears in light of the many recent police murders of innocent Blacks). After George Zimmerman killed Trayvon Martin in Sanford, Florida, Eric Holder, the nation’s first black Attorney General, introduced much of white America to the existence of “The Talk” with a moving speech about the sad tradition he was passing down to his son after Martin’s death. Attorney General Holder declared in relevant part:
Years ago, some of these same issues drove my father to sit down with me to have a conversation—which is no doubt familiar to many of you—about how as a young black man I should interact with the police, what to say, and how to conduct myself if I was ever stopped or confronted in a way I thought was unwarranted. I’m sure my father felt certain—at the time—that my parents’ generation would be the last that had to worry about such things for their children.
Since those days, our country has indeed changed for the better. The fact that I stand before you as the 82nd Attorney General of the United States, serving in the Administration of our first African American president, proves that. Yet, for all the progress we’ve seen, recent events demonstrate that we still have much more work to do—and much further to go. The news of Trayvon Martin’s death last year, and the discussions that have taken place since then, reminded me of my father’s words so many years ago. And they brought me back to a number of experiences I had as a young man—when I was pulled over twice and my car searched on the New Jersey Turnpike when I’m sure I wasn’t speeding, or when I was stopped by a police officer while simply running to a catch a movie, at night in Georgetown, in Washington, D.C. I was at the time of that last incident a federal prosecutor.
Trayvon’s death last spring caused me to sit down to have a conversation with my own 15 year old son, like my dad did with me. This was a father-son tradition I hoped would not need to be handed down. But as a father who loves his son and who is more knowing in the ways of the world, I had to do this to protect my boy. I am his father and it is my responsibility, not to burden him with the baggage of eras long gone, but to make him aware of the world he must still confront. This is a sad reality in a nation that is changing for the better in so many ways.
Garance Franke-Ruta, Listening in on ‘The Talk’: What Eric Holder Told His Son About Trayvon, Atlantic (July 16, 2013), https://www.theatlantic.com/politics/archive/2013/07/listening-in-on-the-talk-what-eric-holder-told-his-son-about-trayvon/277861 [https://perma.cc/FF7C-KUPH] (quoting then-Attorney General Holder).
Berman, supra note 8 (quoting Yanez); see also Black Culture Connection, Get Home Safely: 10 Rules of Survival, PBS, https://www.pbs.org/black-culture/connect/talk-back/10_rules_of_survival_if_stopped_by_police [https://perma.cc/2HYY-TDDL] (“Keep your hands in plain sight and make sure the police can see your hands at all times.”).
Berman, supra note 8; see also Stacia L. Brown, Looking While Black: When Eye Contact with Police Is Considered a Crime, New Republic (Apr. 30, 2015), https://newrepublic.com/article/121682/freddie-grays-eye-contact-police-led-chase-death [https://perma.cc/64PB-BH9T] (reminding readers that the events that led to Freddie Gray’s death began with mere “eye contact with the officers” and noting that “no black man is eager to initiate a staring contest with the cops”). At Freddie Gray’s funeral, the reverend who offered the eulogy communicated these words to Gray’s mother about his eye contact with the police:
On April 12 at 8:39 in the morning, four officers on bicycles saw your son. And your son, in a subtlety of revolutionary stance, did something black men were trained to know not to do. He looked police in the eye. And when he looked the police in the eye, they knew that there was a threat, because they’re used to black men with their head bowed down low, with their spirit broken. He was a threat simply because he was man enough to look somebody in authority in the eye. I want to tell this grieving mother . . . you are not burying a boy, you are burying a grown man. He knew that one of the principles of being a man is looking somebody in the eye.
Id. (quoting Reverend Jamal Bryant).
See R. Richard Banks, Jennifer L. Eberhardt & Lee Ross, Discrimination and Implicit Bias in a Racially Unequal Society, 94 Calif. L. Rev. 1169, 1172-73 (2006) (discussing how blackness has been linked with criminality); Jennifer L. Eberhardt, Phillip Atiba Goff, Valerie J. Purdie & Paul G. Davies, Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psychol. 876, 881-88 (2004) (finding in a psychological study that police officers not only viewed black faces as more criminal than white faces but also viewed black faces that were more “stereotypically black,” for example, those faces with wide noses, thick lips, or dark skin, as more criminal than faces that were less “stereotypically black”).
See Banks et al., supra note 17, at 1174 (indicating that there are studies that show that “images of unarmed Black men were more likely to be ‘shot’ than were images of unarmed White men”); L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. 2035, 2060 (2011) (“[P]olice officers in simulations were more likely to shoot unarmed black suspects than unarmed white suspects, and to misidentify black suspects more readily than white suspects.” (footnote omitted)).
Beckstrom, supra note 1; see also Emma Brown, ‘He Knew the Kids and They Loved Him’: Minn. Shooting Victim Was an Adored School Cafeteria Manager, Wash. Post (July 7, 2016, 6:02 PM EDT), https://www.washingtonpost.com/news/education/wp/2016/07/07/he-knew-the-kids-and-they-loved-him-minnesota-shooting-victim-was-an-adored-school-cafeteria-manager [https://perma.cc/MS2N-UUYZ] (“Those who knew Castile said it was difficult to imagine how he could appear as threatening or why an officer would have felt he had to react with deadly force.”).
Throughout this Book Review, we capitalize the terms “Black” and “White” only when used as nouns to describe specific racial groups. Here, as elsewhere, we use the term “Blacks,” rather than the term “African Americans,” when referring to the entire group of people whom identify as part of the black race in the United States because it is more inclusive. However, when referring specifically to black individuals who descend from slaves in the United States, we may use the terms “African American” and “black” or “Black” interchangeably. See Anthony V. Alfieri & Angela Onwuachi-Willig, Next Generation Civil Rights Lawyers: Race and Representation in the Age of Identity Performance, 122 Yale L.J. 1484, 1488 n.5 (2013). As Kimberlé Crenshaw has explained, using the uppercase “B” reflects the “view that Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.” Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1332 n.2 (1988) (citing Catherine MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 Signs: J. Women Culture & Soc’y 515, 516 (1982) (“I do not regard Black as merely a color of skin pigmentation, but as a heritage, an experience, a cultural and personal identity, the meaning of which becomes specifically stigmatic and/or glorious and/or ordinary under specific social conditions.”)); see also 2 W.E.B. Du Bois, The Seventh Son 12-13 (Julius Lester ed., 1971) (contending that the “N” in the word “Negro” was always capitalized until defenders of slavery began to use the lower case “n” as a marker of Blacks’ status as property and as an insult to black people).
Id. at xviii, 1, 4, 14; see also 14 (“Charting how white supremacy evolved during Reconstruction and Redemption is crucial to understanding in what forms it continues to manifest today.”); id. at 94 (identifying numerous stereotypical images of the “Old Negro” that have been passed down from slavery until today).
See, e.g., Adam Gopnik, How the South Won the Civil War, New Yorker (Apr. 1, 2019), https://www.newyorker.com/magazine/2019/04/08/how-the-south-won-the-civil-war [https://perma.cc/JQ8X-WVTE]; James Oakes, An Unfinished Revolution, N.Y. Rev. Books (Dec. 5, 2019), https://www.nybooks.com/articles/2019/12/05/reconstruction-unfinished-revolution [https://perma.cc/G5LJ-LX5M].
See, e.g., Anthony V. Alfieri, Black, Poor, and Gone: Civil Rights Law’s Inner-City Crisis, 54 Harv. C.R.-C.L. L. Rev. 629 (2019); Anthony V. Alfieri, Gideon in White/Gideon in Black: Race and Identity in Lawyering, 114 Yale L.J. 1459 (2005); Angela Onwuachi-Willig, Reconceptualizing the Harms of Discrimination: How Brown v. Board of Education Helped to Further White Supremacy, 105 Va. L. Rev. 343 (2019).
See, e.g., Anthony V. Alfieri, Prosecuting the Jena Six, 93 Cornell L. Rev. 1285 (2008); Anthony V. Alfieri, Prosecuting Violence/Reconstructing Community, 52 Stan. L. Rev. 809 (2000); Anthony V. Alfieri, Retrying Race, 101 Mich. L. Rev. 1141 (2003); cf. Anthony V. Alfieri, Jim Crow Ethics and the Defense of the Jena Six, 94 Iowa L. Rev. 1651 (2009) (discussing the race-coded lawyering methodologies at work in a set of 2006 Louisiana prosecutions).
See, e.g., Anthony V. Alfieri, Inner-City Anti-Poverty Campaigns, 64 UCLA L. Rev. 1374 (2017); Anthony V. Alfieri, Practicing Community, 107 Harv. L. Rev. 1747 (1994); Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107 (1991); Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform’s Marriage Cure as the Revival of Post-Bellum Control, 93 Calif. L. Rev. 1647 (2005).
See, e.g., Anthony V. Alfieri, (Un)Covering Identity in Civil Rights and Poverty Law, 121 Harv. L. Rev. 805 (2008); Angela Onwuachi-Willig, The Fire This Time: Reflections on Recent Killings and Protests, Record (June 1, 2020), https://www.bu.edu/law/record/articles/2020/dean-angela-onwuachi-willig-commentary-the-fire-this-time [https://perma.cc/93TD-9T68].
On the intersectional place of race, gender, and class in legal representation, see Angela Onwuachi-Willig, From Emmett Till to Trayvon Martin: The Persistence of White Womanhood and the Preservation of White Manhood, 15 Du Bois Rev. 257, 259-61 (2018) [hereinafter Onwuachi-Willig, From Emmett Till to Trayvon Martin]; and Angela Onwuachi-Willig, Policing the Boundaries of Whiteness: The Tragedy of Being “Out of Place” from Emmett Till to Trayvon Martin, 102 Iowa L. Rev. 1113, 1148-51 (2017).
See Mitch Smith, In Court, Diamond Reynolds Recounts Moments Before a Police Shooting, N.Y. Times (June 6, 2017), https://www.nytimes.com/2017/06/06/us/castile-police-shooting-facebook-trial.html [https://perma.cc/63RL-UP36] (“Earl Gray, a lawyer for Officer Yanez, questioned Ms. Reynolds at length about her marijuana use.”); see also Learfield Wire Service, Diamond Reynolds Testifies in Yanez Trial, Lakeland Broadcasting (June 7, 2017), https://www.willmarradio.com/news/diamond-reynolds-testifies-in-janez-trial/article_47d38e56-4b7b-11e7-8730-6b9fcd8f43ec.html [https://perma.cc/C5YQ-U5K6] (noting that the defense focused on the marijuana use of Castile and Reynolds).