York Black Panther Shep McDaniel was brutally beaten by six cops in the Bronx as he attempted to peacefully monitor and note an altercation between police and two women. New York’s finest shouted, “He’s a crazy, fucking, nigger!” as they punched, kicked, stomped, and cuffed McDaniel. A jury later acquitted McDaniel of resisting arrest and disorderly conduct. Was not his beating, brutalization, trumped-up arrest and bogus prosecution a hate crime?
On May 13, 1985, Philadelphia police dropped a bomb on a home in a residential Black neighborhood where 11 men, women, and children—members of the naturalist MOVE group—were incinerated and dismembered by cops. The sole adult survivor, Ramona Africa, was prosecuted, convicted, and sent to prison for seven years. Ain’t that a hate crime?
In many ways, Black America remains captive to its feverish, hateful history in a land that daily mocks the claim to being “the home of the free.” We have become conditioned by corporate mis-leaders who make a spectacle out of occasional acts of racial hatred, while ignoring the structural ones that degrade the everyday life of millions of Americans.
Why do we pay attention to the retail acts of anti-Black violence, while ignoring the wholesale? Far more dangerous than the white-robed KKK is the legalized malice of the black-robed judiciary. Far more destructive than the Aryan Nation are the local, armed, and uniformed police who are legal agents of an ancient, deadly hatred.
THE LAW AGAINST THE LAW
June 20, 1998
“If it took the White majority more than two hundred years to understand that slavery was wrong, and approximately one hundred years to realize that segregation was wrong (and many still don’t understand), how long will it take them to perceive that American criminal justice is evil?”8
—Paul Butler
As long ago as 1880, the United States Supreme Court, in Strauder v. West Virginia, ruled that the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.” Over a century later, in 1986, the nation’s highest court reiterated this principle in Batson v. Kentucky, for although a century had passed, it remained all too common for trials to be conducted before all-white, or predominantly white, juries, in cases where it appeared as if, besides the defendant, only the judge’s robes were black. It also shows us that no matter what the Supreme Court does, the judiciary, prosecutors, and police will do what they want to with impunity, especially when Blacks are defendants. For, if Strauder was the “law” why did it need reiteration in Batson?
Strauder was ignored in U.S. courtrooms for 106 years, just as Batson is today. As any law student knows, the theory of law is vastly different from its practice. Shortly after Batson was decided in 1986, an assistant district attorney in Philadelphia gave a class to district attorney trainees, teaching them how to violate the spirit of Batson by ensuring that most Blacks would be removed from jury pools. Much time has passed since Batson, and yet cases are upheld today where a Black defendant sees Black jurors removed for bogus reasons. What is the “law”? What the Supreme Court says, or what district attorneys do? What the cases say, or what trial judges allow?
The “law” is what is allowed every day in real cases, in real courtrooms, across America, and not what is written in dry, dusty books read by hoary scholars. Seen from this perspective, Batson is still not the law, despite what books may say. And if the process is not tainted enough, what of the consequences of such a process?
Recently, the governor of a state that boasts a spate of Batson violations—Pennsylvania—signed Senate Bill 423 into law, thereby enacting a statute that forbids a death penalty appeal based on the following:
a) claims that Blacks are more likely to be executed for the same crime than whites;
b) claims that an indigent defendant is more likely to be executed than a rich one;
c) claims that a death sentence is excessive or disproportionate to the penalty imposed in similar cases.
This is, essentially, a law against the “law.” It is a proclamation of the supremacy of the political over the legal. It is a statute that explicitly enforces the value that white life matters and Black life does not. It is a law of the state that exclaims the inherent superiority of the wealthy over the poor, and that allows the basest disproportion to masquerade as “justice.”
It is a statement that reflects a hellish, unequal status quo that still has not changed no matter what the U.S. Supreme Court says, and no matter how many times it says it.
It is the law of what was, what is, and what may be.
WE ARE BLIND TO EVERYTHING BUT COLOR
July 5, 1998
“In order to get beyond racism, we must first take account of race. There is no other way.”
—Justice Harry Blackmun, University of Calif.
Regents v. Bakke (1978)
In cases decided every day across America, the theory of color blindness said to govern the judicial process is a reflection of the flawed notion that the mere mention of race is somehow racist. Consequently, the law serves up yet another legal fiction, which obscures the complexity of real life, in furtherance of a false and fatal simplicity.
There can be no sustained study of American law without coming face to face with the racism that drenches judicial thought, in a clear, unapologetic tone that leaves no question as to the objectives of the court.
It is obvious that the objection on the part of Congress is not due to color, as color, but only to color as an evidence of a type of inferior civilization that it characterizes. Yellow and bronze, as racial colors, are the hallmarks of Asian despotisms. It was deemed that the subjects of these despotisms—with their fixed and ingrained pride for their particular culture, which accepts the subordination of the individual and community to the supreme personal authority of the sovereign, as the embodiment of the state—were not well suited to further the success of a republican form of government. Hence they were denied citizenship.
The anti-Asian bias that oozes out of the 1921 decision Terrace v. Thompson (U.S. District Court, Washington), for example, which is clothed in a kind of quasi-sociological justification, actually justified laws in Western regions that outlawed the sale of land or property to Japanese people, on the basis of ineligibility of citizenship. Until the 1950s, the Chinese and other Asians were denied naturalization.
Despite our pretensions of being “color blind,” scholars assure us that, over a century after the Chinese Exclusion Act of 1884 became law, the court case that upheld the Act remains good law to this day.
The U.S. Supreme Court majority in Chai Chan Ping v. U.S. (1889), found “the presence of foreigners of a different race in this country, who will not assimilate with us” to be properly excludable. For over a century, such decisions that made whiteness the sole prerequisite for U.S. citizenship, and explicitly excluded people it deemed “nonwhite,” had, at their very core, not “color blindness,” but color consciousness distorted by a profound sense of white supremacy.
It is fitting here to note that in 1935, the two countries that had racial restrictions on naturalization in common were Hitler’s Germany and the United States of Americas. Color
