What time is it?: Why we can’t ignore the momentum of the Right

Taken at the 09/14 Donald Trump rally at the American Airlines Center in Dallas, Texas.

Last month, a nationally influential group of community builders and advocates for social, economic, and environmental justice gathered in rural Washington to address what we believe to be a critical turning point in American politics. In tribute to the great activist-philosopher, Grace Lee Boggs, we asked ourselves the question that she would often start meetings with: What time is it on the clock of the world?

Broadly speaking, the consensus is that we’re in a time of great instability, revolt, and possibility. History teaches us that in times like these, we need to be both bold and vigilant. Authoritarian, chauvinistic, and bigoted movements assert themselves most aggressively when people feel socially and economically threatened. We know the drill. We’ve lived it again and again.

But this time is different. This time, traditional sources of stability and leadership are being rejected on all sides, and people are seeking radical, or at least non-establishment, solutions. Our fear is that the Right Wing may be better positioned than we are to capitalize on this moment amongst white people – including white voters – and better positioned than ever before.

The Right Wing may be better positioned than we are to capitalize on this moment amongst white people.

The presidential primary season makes the case that rebellion is afoot. Bernie Sanders’ strong showing seems to signal the rise of a progressive, post-Occupy electoral rebellion, especially among younger voters. Meanwhile, Donald Trump’s lock on the GOP presidential nomination seems to indicate an equal opposite of sorts. The primary election results speak to a broader, multi-dimensional rebellion against elites that threatens both major parties. That rebellion is causing old norms to fall, opening the door for a major fight over which sector will define the new normal in U.S. politics.

What Trump and Sanders supporters share is a passionate anti-elitism and deep frustration with an “establishment” viewed as having failed American workers. These competing forces appear to have the most political momentum, if not yet the numbers or resources necessary, to directly define the “middle” of national electoral politics.

Not yet is the operative term here. Beating right-wing forces to the punch will require us to bring the fight to elites and the institutions of power that they dominate, and to blunt the progress of those on the Right who are competing with us for influence over those institutions.

Eight Conditions That Make the Right Especially Dangerous Now

First, in a time when people on both ends of the political spectrum are rejecting the middle, and what many on both sides refer to as the establishment, the best organized and most compelling radical force is likely to exercise the most direct and profound influence.

We believe the Right has put itself in this position. Most right-wing groups, the Tea Parties being an especially good example, talk like conservatives, citing the “original construction and intent of the Constitution” as the template for their political agendas. But, the reality is that they’re subverting the Constitution and other symbols of middle-Americanism – everything from cowboy boots and three-cornered hats, to the founding fathers, the American Dream, and key tenets of liberalism, like liberty and individual freedom – to use as talismans in service to radically repressive, exclusionary, anti-democratic, and authoritarian agendas.

It is also notable that Bernie Sanders’ advocacy of progressive policies heretofore considered completely unviable to most establishment liberals has both directly influenced the Clinton campaign and made an opening for progressive legislators like Elizabeth Warren to expand their influence. Of course, Clinton’s candidacy represents the establishment elite, while Trump appeals to those who would reject the middle. Moreover, Trump’s advocacy of unconstitutional and anti-democratic measures is making a hard Right legislator like Ted Cruz appear almost reasonable by comparison.

Second, the Right’s immediate projected base – economically insecure, socially conservative whites – are simultaneously feeling the pinch of racial demographic change, which many view as a threat to the meaning of “American,” and bearing witness to the collapse of the middle class. The Right has popularized the idea that there’s a cause-and-effect relationship between the two. The resulting rising tide of fear and rage among many whites is lifting the hopes of white nationalist groups, some of which have “by any means necessary” approaches to political struggle.

Third, right-wing groups – ranging from those whose tactics are mainly confined to public policy and elections like the Tea Parties, to paramilitary groups who are attempting to take control of local governments through intimidation and direct action, such as the Oath Keepers and Three Percenters – are reading Trump’s rise as a sign that this may be their time. For some, Trump’s success is creating the impression that a European-style fascist movement such as we saw in the WWII era is viable in the United States.

The danger that right-wing paramilitary groups pose is especially serious in rural parts of the country where a collapse of investment in public infrastructure…is preventing local governments from providing adequate first responder services.

The danger that right-wing paramilitary groups pose is especially serious in rural parts of the country where a collapse of investment in public infrastructure, including traditional law enforcement, is preventing local governments from providing adequate first responder services. This creates an opening for armed militias to compete for power in settings where, increasingly, whoever has the most guns has a distinct advantage. Those who jokingly dubbed the Bundy militia – which recently seized and occupied a federal bird sanctuary in Harney County, Oregon – “Vanilla ISIS” aren’t too far off the mark.

Fourth, there is less standing in the way of the Right today than in the past. By many measures of political capacity including mass organizations like unions, mainline Protestant churches, and mass movements, key sectors of the Left have not recovered from the defeats dating back to the Reagan “revolution.”

There are certainly vibrant, innovative progressive movements including Black Lives Matter, alt labor, climate justice, and Not1More. Each of these movements is having powerful positive social and cultural impacts, transforming debates on critical issues in the U.S. and around the world, and creating the potential for urgently needed political changes.

However, today’s movements don’t have the institutional infrastructure and concentrated power that traditional New Deal/Great Society/Left groupings had prior to the Reagan ’80s. And – critically – the liberal/progressive/Left has fewer institutions that regularly and meaningfully engage the people being organized into right-wing populist movements. At a time when the Right is quickly building its base, we are in a weaker position to out-organize them among those they are targeting for recruitment: white working-class people.

Fifth, we now have a much denser concentration of right-wing populists predisposed to support authoritarianism within one of the two major political parties: the GOP.

In order to shed the elitist image that the GOP developed in the wake of the Great Depression and throughout the Democrat-led economic recovery of the last century, the GOP created what is now widely known as the Southern Strategy. They believed that white Southern voters would reject the Democratic Party, which was once the party of white supremacy, if they could reframe them as the party of Blacks and civil rights. They accomplished this in several ways: by deploying a combination of coded and more overt racism to scapegoat people of color, particularly Blacks, for the declining economic and social status of white workers; by inciting fear of foreign enemies threatening us internationally; and by demonizing “anti-American” elements on the Left as threatening us domestically. All of this served to justify a hawkish foreign policy, and a punitive law-and-order domestic policy.

The Southern Strategy didn’t just exploit right-wing movements in order to build the GOP’s base; it popularized authoritarian, anti-democratic, and bigoted ideas that pushed the whole political spectrum to the Right. Perhaps most influential among these ideas are:

  • That the private sector is inherently more efficient and cost-effective than government (think Trump, the deal maker), and
  • That government, especially national government, is controlled by elites who are wrongly expropriating the material and social capital of real, productive Americans (“makers”) to redistribute as patronage to the sinful, lazy, and dangerous classes (“takers”) in exchange for political support.

Among the “takers” that most drive the rage machine are Black people, immigrants of color, and poor people of color – especially poor single mothers of color, who they claim live in a dysfunctional culture of dependency that can only be cured through austerity. The Right was so successful at popularizing these ideas that they would be articulated through the public policy agenda of a Democratic Presidential administration (Bill Clinton’s) by the 1990s.

By positioning itself as the party of traditional values and law and order, the GOP has consolidated a previously bipartisan right-wing populist constituency large enough to buck its own party establishment and select their own candidate. (They just did.)

Sixth, the racial demography of the U.S. is rapidly changing. In 1980, more than 85% of the American electorate was white. Today, the electorate is only 67% white, and that percentage is rapidly falling. White voters are losing their ability to define and hold the middle of American culture and politics and this is contributing to the rage and fear that drove white support for regressive welfare reform, tough-on-crime policies and the prison buildup, repressive national security measures, and a wildly expensive and punitive deportation regime targeting undocumented immigrants of color.

Political scientist Jean V. Hardisty was among the first to demonstrate how sophisticated conservative organizers learned to cultivate and mobilize resentment over the erosion of white privilege. As the erosion of the status, privilege, and political influence associated with being white in the United States escalates, that resentment is building.

Seventh, the cruelty of the free-market ideology of “neoliberalism” is driving financial deregulation, austerity, privatization (resulting, in part, in increasingly underfunded and unresponsive government), falling wages for most, and a stagnant or shrinking economy for the bottom 90 percent of Americans.

The Democratic Party responded to the neoliberal “Reagan revolution” by opting to forge relationships with social issue liberals (LGBT, traditional race-based civil rights organizations, etc.) and neoliberal business elites. By doing so, they contributed to the widespread and increasingly popular right-wing trope that whites suffer more discrimination and have less influence on “liberal” government and media than Black people.

These changes have opened space for right-wing populist appeals for cross-class white racial solidarity as a response to economic hardship – with the implicit message that bigotry can bring prosperity.

Altogether, these changes have opened space for right-wing populist appeals for cross-class white racial solidarity as a response to economic hardship – with the implicit message that bigotry can bring prosperity.

Eighth, social scientists have found that many people – including those who might otherwise support basic social fairness – are driven to support authoritarian figures and approaches by perceived physical threats or by destabilizing social change. Given the wide array of real and perceived threats to social stability in contemporary society, this raises the danger of what we might call “disaster authoritarianism.”

Multiple crises could drive a populist demand to consolidate power in the executive branch of government. We have seen evidence of this in the fear-driven post-9/11 push to limit civil liberties and to rush to war. Climate change, infectious disease outbreaks, the rise of violent stateless totalitarian movements, extreme economic instability, same-sex marriage and other disruptions of traditional gender roles, racial demographic change – these and other trends could activate dormant support for demagogic leadership.

More immediately, could a San Bernadino-type attack or a series of crises in the months or weeks before the general election propel a law-and-order authoritarian candidate into the White House and/or consolidate support for further suspensions of civil liberties?  Maybe. But what is certain is the increasing pressure and insecurity will put steel in the arguments of those who advocate for strongman solutions.

November 2015 Donald Trump Rally in Springfield, IL.

November 2015 Donald Trump Rally in Springfield, IL. (Photo: Joseph Blewitt via Flickr, https://creativecommons.org/licenses/by-nc-nd/2.0/)

But Is It Fascism, Yet?

All of the conditions described here don’t necessarily add up to fascism, nor predict that a totalitarian movement will eventually seize our government. But, that doesn’t mean that nativist, white nationalist, and other right-wing movements can’t do great damage even while losing.

Here’s an example. In 1964, GOP presidential candidate Barry Goldwater lost the general election to Lyndon Johnson while taking only 38.5% of the vote. But, Goldwater’s direct appeals to xenophobia and racism won the South and flipped a significant number of white Southern Democrats into Republicans. Goldwater’s run was the template for the GOP Southern Strategy we referenced earlier. Moreover, right-wing leaders mined the donor lists of the Goldwater campaign, and the campaigns for president of an even more unpopular presidential candidate, former segregationist Alabama Governor, George Wallace, for direct-mail marketing campaigns. Those campaigns provided a big part of the original money used to build key right-wing organizations that we are still battling today.

The Call To Action: Join the Three-Way Fight

We need to wage a three-way fight. On one side, we need to fight with institutions of power that perpetuate injustice. On the other, we need to fight with those who are competing with us for influence over those same institutions. These two sides of the struggle are equally critical in the struggle for progressive change.

This may seem like a big ask, but we’re already involved in three-way fights on critical issues. The Right is already in the three-way fight, and their ability to exercise influence is dependent on beating us up.

Here’s an example. On the issue of immigration reform, right-wing anti-immigrant groups have used racism to vilify undocumented immigrants and to justify increasingly repressive immigration controls. They’ve turned a national policy debate over how to achieve a just resolution for undocumented workers into a fight over whether it is practical to deport more than 11 million people whom they have branded as a criminal class, and via Trump, as “rapists” and “drug dealers.” This reframing has forced many who support humane reform to reframe their arguments to back what is seen as the only viable reform proposal in Congress. That proposal would impose a more than 11-year path to citizenship on undocumented immigrants and institute what amounts to being forced into a highly exploitative guest worker program on undocumented workers, all while continuing to detain and deport growing ranks of criminalized immigrants.

Here’s another. On the issue of abortion access, the Right responded to Roe v. Wade by reframing the reproductive freedoms that it institutionalized as a struggle over religious freedom and the rights to life of “unborn children.” Advocates of equitable access to safe and legal abortions have been forced to respond to the Right’s framing of the issue and to a new and increasingly effective states’ rights strategy. In much of the debate, this minimizes advocacy for women’s self-determination and centers instead the most extreme cases where the life of the “mother” (suggesting that the fetus is a baby) is at risk. Meanwhile, access to comprehensive reproductive healthcare for poor women is evaporating, and we are now at pre-Roe v. Wade levels of abortion access.

Each time we enter into a political fight, whether it is about public education, income supports, trade, foreign policy, national security, labor, or even the U.S. Postal Service, the Right is there, reframing the issues and driving discussion away from practical, broadly beneficial solutions and toward exclusionary and regressive non-solutions and punishment. By doing so, they are effectively moving the goal post in our fights with institutions of power, requiring us to repeatedly change our playbooks, and making us less and less coherent to those on the downside of unjust power relations.

Trump Protest in Fountain Hills, AZ on March 19, 2016. (Photo: Chris Vena via Flickr, https://creativecommons.org/licenses/by/2.0/)

Trump Protest in Fountain Hills, AZ on March 19, 2016. (Photo: Chris Vena via Flickr, https://creativecommons.org/licenses/by/2.0/)

How Do We Fight the Three-Sided Fight?

First, we need to get better at fighting the Right. In order to do that, we need to incorporate strategies to Disrupt, Defuse, and Compete.

We disrupt the Right by separating right-wing leaders from their bases of support, a task often best accomplished in two ways: 1) by exposing the elitist interests behind right-wing leaders’ all-style-no-substance populism, and 2) by identifying and exploiting internal divisions within right-wing coalitions and organizations.

We defuse the tensions that the Right both drives and thrives on by defeating the bigotry and fear underlying those tensions. This means doing effective anti-bigotry work, while building coalitions broad enough to include populations that the Right is targeting. But, anti-bigotry efforts can’t just focus on the harm that bigotry does to those who are targeted, they must address the destructive force of bigotry on the kind of political culture necessary to support democracy and win meaningful political participation for all, and the broad negative effects of public policies that bigotry tends to drive.

We compete by going up against the Right and vying directly for the loyalty of those who make up the immediate projected base of their support: white working-class people. Most right-wing groups’ core support is drawn from the white middle class, but right-wing movements don’t stop there. They traditionally organize “down” the economic ladder and reach for working-class whites, whose numbers are vital to their success. Successfully competing will require us to authentically express empathy and compassion to white poor people and to those who fear falling into poverty, and to do so while marrying economic justice to racial and social equity. Doing this blunts the effectiveness of the Right’s scapegoating strategies. It provides better, more solutions-oriented explanations to those susceptible to right-wing recruitment.

We should also remember that white nationalist movements are identity movements. We must take seriously the sense among a growing number of whites that white identity is under attack.

White anti-racist activists are critical to successfully competing with the Right for the attention of those vulnerable to their appeals. We should also remember that white nationalist movements are identity movements. We must take seriously the sense among a growing number of whites that white identity is under attack. That older white voters seem to feel this threat most acutely could be a reflection of generationally bound values, but it is also very likely an indication of the vulnerability that many feel as they age.

Good organizing meets people where they are, and not where we wish they were. Moreover, good organizing focuses on the egos of those being organized, and not on the egos of the organizers. This isn’t a pissing contest over who gets “it.” It’s a fight for economic and social justice for everyone.

In consideration of these trends, justice-minded people and movements should consciously pivot our work in order to disrupt, defuse, and – critically – compete with the bigoted Right for its projected base of support. To do otherwise risks giving white nationalism room to consolidate as a national political force.

 

 

Black Lives Over Broken Windows: Challenging the Policing Paradigm Rooted in Right-Wing “Folk Wisdom”

Click here to download the article as a PDF.

This article appears in the Spring 2016 edition of The Public Eye magazine.

When protesters developed a platform to end police violence in the wake of the 2014 police shooting of 18-year-old Michael Brown in Ferguson, Missouri, the first of their 10 demands was to end “broken windows” policing, the law enforcement paradigm marked by aggressive policing of minor offenses and heavy police presence in low-income Black communities.1

Broken windows policing is what led Ferguson police officer Darren Wilson to approach Michael Brown simply for walking in the middle of the street. It is what motivated police to repeatedly harass Eric Garner, a 43-year-old Staten Island resident who was killed earlier that summer by NYPD officer Daniel Pantaleo, using a banned police chokehold during an encounter initiated over Garner’s alleged sale of loose cigarettes. And in 2015 it was what brought Baltimore police into contact with Freddie Gray, a 25-year-old Baltimore man who was initially stopped while allegedly fleeing from police officers in his low-income Black community—and who died after his spinal cord was severed while he was in police custody.

The role of broken windows policing in each death quickly became the focus of protesters from the Black Lives Matter movement and other civil rights advocates. Just days after Brown’s death, national president of the NAACP Cornell William Brooks said, “The death of Michael Brown strikes me as the latest, sad chapter in an ongoing national narrative about a form of policing, broken windows policing, that is simply not right for the country.”2 In New York City, This Stops Today—an ad hoc coalition taking its name from Eric Garner’s words on the day he died to the officers who had repeatedly harassed him—made ending broken windows one of their 11 demands. (The 11 demands were issued in honor of the 11 times that Garner was seen on video telling the officers who killed him, “I can’t breathe.”3)

Regrouping for day 3 of the week of outrage surrounding the denial of justice for Eric Garner on December 10, 2016. Source: hollow sidewalks License: https://creativecommons.org/licenses/by/2.0/

Regrouping for day 3 of the week of outrage surrounding the denial of justice for Eric Garner on December 10, 2016. Source: hollow sidewalks License: https://creativecommons.org/licenses/by/2.0/

Broken windows policing is not only all too often lethal, it also contributes to the use of excessive and illegal force in the context of the most mundane police encounters. It led a New York City officer to put Rosan Miller, a seven-months pregnant Black woman initially approached for grilling outside her home, into the same banned chokehold that had led to Garner’s death just a few weeks before.4 It was the excuse for another officer to slam Stephanie Maldonado to the ground in New York City’s West Village for “jaywalking” like Mike Brown.5 It was what led police to arrest Duanna Johnson, a Black transgender woman, for prostitution—one focus of broken windows policing—while walking down a street in Memphis, Tennessee, in 2008, only to beat her bloody with metal handcuffs at the police station in an incident captured on video because she refused to answer to “faggot.”6 Broken windows policing also created opportunities for recently convicted Oklahoma City police officer Daniel Holzclaw to stop women as they walked down the street to inquire as to what they were doing and where they were going, thus facilitating his sexual harassment, assault, and rape of 13 Black women and girls.7

The “Folk” Origins of Broken Windows

What does broken windows policing have to do with the Right? In part, the answer lies in where it came from: an outgrowth of the conservative “law and order” agendas of the early 1980s. Neoconservatives George Kelling and James Q. Wilson outlined the theory underlying broken windows policing in a 1982 Atlantic Quarterly article.  8 Kelling is a senior fellow at the Manhattan Institute, and Wilson, before his death in 2012, was a board member at the American Enterprise Institute, both right-wing think tanks.9 According to Wilson and his colleagues, liberal concessions to civil rights movements and protest cultures of the 1960s and ‘70s were significant contributing factors to the urban chaos broken windows policing purports to address.10 In 1985 Wilson co-wrote a book, Crime and Human Nature, with Richard J. Herrnstein, a co-author of The Bell Curve, which notoriously advanced a theory of racial differences in intelligence. Wilson’s own 1975 book, Thinking About Crime, argued that crime is the product of individual and social “predispositions,” rather than socioeconomic conditions. 11 His theories echoed those of his mentor, Edward Banfield, who theorized about a “culture of poverty,” which Wilson believed required a punitive response,12 and those of The Bell Curve’s other co-author, Charles Murray, whose arguments suggest that crime is the result of individual mental and moral deficiencies.13 Wilson decried single parenthood, claiming “illegitimacy was eroding the nation’s values,”14 and, as Pam Chamberlain wrote in PRA’s Defending Justice: An Activist Resource Kit, argued for “returning to a path where religion is influential and where families remain intact.”15

New York City became the first municipality to aggressively implement broken windows policing theories rooted in these right-wing intellectual traditions in the early 1990s. Under the leadership of former Republican Mayor Rudolph Giuliani, and bolstered by right-wing media like the New York Post and right-wing think tanks like the Manhattan Institute, the city put Kelling and Wilson’s theories into practice with an internal police memorandum, “Reclaiming the Public Spaces of New York,” citing both the pair’s Atlantic article and the infamous 1965 Moynihan Report, which blamed social dysfunction on Black families, and particularly, Black mothers.16

Rally outside of the Manhattan Institute on December 10, 2014. Source: hollow sidewalks License: https://creativecommons.org/licenses/by/2.0/

Rally outside of the Manhattan Institute on December 10, 2014. Source: hollow sidewalks License: https://creativecommons.org/licenses/by/2.0/

The broken windows theory, brilliantly summarized in a recent video created by Molly Crabapple,17 goes something like this: if signs of disorder—like broken windows—and minor offenses—like loitering, panhandling, and graffiti—are left unchecked, then it’s only a matter of time before a community descends into chaos and violence. According to Kelling and Wilson, the only way to prevent this from happening is through aggressive enforcement and prosecution of minor offenses. At its core, broken windows relies on fear-mongering, stoked by familiar right-wing themes about the need for increased “security” and a compulsion to root out certain groups of people as embodied threats to a particular way of life .

But even Kelling and Wilson acknowledged back in 1982 that it is “not inevitable that serious crime will flourish or violent attacks on strangers will occur” if signs of disorder are left unchecked. Indeed, the two wrote that their entire premise is admittedly drawn from what they themselves call “folk wisdom” rather than objective data, based on the belief that perceived disorder somehow renders an area more “vulnerable to criminal invasion” such that “drugs will change hands, prostitutes will solicit, and cars will be stripped.”18 It’s a theory, they implicitly admitted, based more on people’s fears and beliefs than on hard evidence.

The theory later evolved to advance the premise that individuals who commit minor offenses—like fare evasion in public transit—will, if not caught and punished, eventually commit more serious offenses: a sort of slippery slope of criminality. The new logic of broken windows, according to Tanya Erzen, a scholar of American conservatism, writing in Zero Tolerance: Quality of Life and the New Police Brutality in New York City, is that “graffiti taggers, turnstile jumpers and kids in a public park are either already criminals, or simply criminals in the making.”19>

Even the theory’s biggest proponent, New York City Police Commissioner Bill Bratton—who spearheaded its implementation in New York City under Mayor Giuliani, actively promoted its spread around the country both as a consultant and as Los Angeles Police Commissioner, and pursued it with renewed vigor in his second tenure in New York City under current Mayor Bill de Blasio—concedes that neither premise has ever been conclusively proven.20 In fact, several studies undermine the theory’s claims.21 In a comprehensive review of the literature and a summary of his own research, Columbia law professor Bernard Harcourt concludes that, “Taken together, the wealth of research provides no support for a simple disorder-crime relationship as hypothesized by Wilson and Kelling in their broken-windows theory…. What I have come to believe is that the broken windows theory is really window dressing, and it masks or hides more profound processes of real estate development and wealth redistribution.”22

Like so many policies of the Right, broken windows policing is rooted in fear: fear of poverty, fear of youth, fear of unregulated sexuality and gender nonconformity, and deeply, at its core, a fear of Blackness.

Like so many policies of the Right, broken windows policing is rooted in fear: fear of poverty, fear of youth, fear of unregulated sexuality and gender nonconformity, and deeply, at its core, a fear of Blackness. According to George Kelling’s recent defense of the theory in Politico, published a year after Michael Brown’s death, “The goal is to reduce the level of disorder in public spaces so that citizens feel safe, are able to use them, and businesses thrive.”23 Kelling concedes that it is, in essence, an approach based on public perception—that is, on feelings—rather than proof. In the end, fear—of crime, yes, but also, as the original article explains, of “being bothered by disorderly people,” like panhandlers, “addicts” or people living with mental illness—is the moving force behind the theory.24 As Bratton once put it, “Aggressive panhandling, squeegee cleaners, street prostitution, ‘boombox cars,’ public drunkenness, reckless bicyclists, and graffiti have added to the sense that the entire public environment is a threatening place.”25

Although not explicitly stated, given that the communities described in Kelling and Wilson’s original article and others that followed are Black, it is clear that the “disorderly people,” the people driving “boombox cars,” and the graffiti taggers are also imagined as Black. As gentrification of New York City proceeded through the 1990s, “disorderly people” came to mean those displaced into public spaces in the context of neoliberal devolution and cuts to social programs.26 In other words, broken windows policing isn’t about reducing crime, it’s about assuaging white fear of poor people, Black people, and people of color—no matter how irrational or racialized.*

From Black Codes to Broken Windows

Scratching the surface of broken windows policing reveals that, in the end, the paradigm is simply a repackaged and sanitized version of the ways age-old “vagrancy” laws were enforced. These laws were explicitly created to criminalize and control the movements of people deemed undesirable throughout U.S. history: Indigenous peoples, formerly enslaved people of African descent, immigrants, women, and homeless and poor people. In his recent defense of broken windows, Kelling himself directly acknowledged the lineage, stating in reference to his 1982 essay, “Given the subject of our article, the Black Codes—vague loitering and vagrancy laws passed in the South immediately after the Civil War—were of special concern for us. Under these laws police arrested African Americans for minor offenses and, when they could not pay the fines, courts committed them to involuntary labor on farms—in a sense, extending slavery for many into the 20th century.”27 Without offering a means of distinguishing present-day broken windows policing from these practices, Kelling simply submits that he and Wilson were just arguing for “doing a better job at maintaining order.”28

The question though, is whose order? In their 1982 article, Kelling and Wilson acknowledge that there are “no universal standards…to settle arguments over disorder…” and that charges of being a “suspicious person” or of vagrancy have “scarcely any legal meaning.”29 Ultimately, they wrote, “These charges exist…because [society] wants an officer to have the legal tools to remove undesirable persons from a neighborhood when informal efforts to preserve order in the streets have failed.”30

This is to say that, since its inception, broken windows policing has self-consciously been about promoting a particular type of community, maintaining particular structural relations of power, and policing the borders of “desirability.” Delving deeper into its theoretical premise, a desirable community, as described by Wilson and Kelling, is one of “families who care for their homes, mind each other’s children, and confidently frown on intruders.”31 Broken windows policing is posited as the last bulwark against a “frightening jungle”—a term fraught with racial meaning—in which “unattached adults”—that is, single people—replace traditional families, where teenagers gather in front of the corner store, litter abounds, and panhandlers stalk pedestrians.32 In this framework, conservative values with deep racial overtones ultimately drive how an individual’s presence will be perceived and valued,33 and promote disregard for youth, adults living outside of hetero-patriarchal families, and low-income and homeless people who live in this idealized community.34

Whose Quality of Life?

Building in New York City with the words, "stop and frisk. just another quality of life offense" on March 27, 2014. Source: carnagenyc. License: https://creativecommons.org/licenses/by-nc/2.0/

Building in New York City with the words, “stop and frisk. just another quality of life offense” seen on March 27, 2014. Source: carnagenyc. License: https://creativecommons.org/licenses/by-nc/2.0/

Key to implementing broken windows policing is the proliferation of “quality of life” regulations, which criminalize an ever-expanding range of activities in public spaces, including standing or walking (recast as “loitering”), sitting, lying down, sleeping, eating, drinking, urinating, making noise, and approaching strangers, as well as a number of vaguer offenses, such as engaging in “disorderly” or “lewd” conduct. This broad range of potential offenses gives police almost unlimited license to stop, ticket, and arrest. According to one researcher, enforcement of such low-level offenses has become the “most common point of contact between the public and the criminal justice system.”35

Of course, what conduct is deemed “disorderly” or “lewd” is more often than not in the eye of the beholder, informed by deeply racialized and gendered perceptions. Where offenses are more specific, they criminalize activities so common they can’t be enforced at all times against all people. When I speak publicly about broken windows policing, I often ask how many members of the audience have ever fallen asleep on a train or ridden a bicycle on a sidewalk at some point in their lives. Dozens of hands shoot up. When I ask how many have ever been ticketed or arrested for it, almost all hands come down—that is, unless I am at a drop-in center for homeless youth or adults, or in a low-income Black neighborhood. There, many hands remain in the air.

As former Yale law professor Charles Reich notes, “Laws that are widely violated…especially lend themselves to selective and arbitrary enforcement.”36 As a result, both vague and specific “quality of life” offenses are selectively enforced in particular neighborhoods and communities, or against particular people, by officers wielding an extraordinary amount of discretion, largely unrestrained by constitutional protections. As legal scholar Dorothy Roberts notes in “Race, Vagueness, and the Social Meaning of Order-Maintenance Policing,” over the last several decades, conservative commentators have called for a relaxation of legal doctrines disfavoring vague offenses and reining in police discretion in the name of “law and order” agendas.37

Communities in the Crosshairs

Given all of this, it’s easy to predict who gets targeted by broken windows policing. Despite proponents’ contention that the approach targets specific behaviors, not specific people, the article on which the theory is premised explicitly names particular types of people—youth, homeless people, people perceived to be engaged in prostitution—as embodied signs of disorder.38 According to Pete White of Los Angeles Community Action Network (LA CAN), a community organization that has been fighting the effects of broken windows policing on Los Angeles’ homeless population for decades, the inspirations for Kelling and Wilson’s 1982 article were much more explicit about the racial and gender make up of signs of neighborhood disorder: “young Black men, young women in short shorts hanging out on corners, interracial couples, and gay folks.”39 The result: dramatically increased frequency and intensity of police interactions with Black and Brown youth, low-income and homeless people, public housing residents, people who are—or who are perceived to be—engaged in street-based prostitution, street vendors (many of whom are immigrants), and anyone else who is hyper-visible in public spaces, including lesbian, gay, bisexual, trans and gender nonconforming people.

The results are striking. Broken windows policing has contributed to widespread criminalization of Black youth in New York City under a range of offenses, including disorderly conduct, unreasonable noise, turnstile jumping, performing on the subway, riding a bike on the sidewalk, and being in a city park after dark. Between 2001 and 2013, 81 percent of the 7.3 million people charged in the city with a violation were Black or Brown. 40  In 2015 the greatest number of arrests—29,198—were for not paying the $2.75 fare on city subways; 92 percent of those arrests were of people of color.41 In Park Slope, a Brooklyn neighborhood heavily populated by white families, police issue an average of eight tickets a year for riding bicycles on the sidewalk. In Bedford-Stuyvesant, a gentrifying but still predominantly Black community, police issue more than 2,000 a year.42 Eighty-five percent of summonses issued for “open container” violations in Brooklyn are issued to Black and Brown people, even as countless white revelers spill onto the sidewalks of the city on any given evening to smoke a cigarette outside a bar or art gallery while sipping on an alcoholic beverage, or pop open a bottle of bubbly to accompany a symphony in the park, without any consequence whatsoever. One judge presiding over summons court in New York City said he had no memory of having ever adjudicated an open container ticket given to a white person.43

Contrary to Kelling’s recent defense of his broken windows theory, the results of this approach are not an error of application, but rather deeply embedded in the theory itself. In fact, the authors asked themselves in 1982, “how do we ensure that age or skin color or national origin or harmless mannerisms will not also become the basis for distinguishing the undesirable from the desirable?”44 Their answer was that they were not confident that there was one—except that police must understand the outer limits of their discretion to be that their role is “not to maintain racial or ethnic purity of a neighborhood,” only to regulate behavior.45 The statistics above suggest that officers are, in fact, exercising their discretion—just in racially discriminatory ways.

Consequences

Poster from rally at the Manhattan Institute on December 10, 2014. Source: hollow sidewalks License: https://creativecommons.org/licenses/by/2.0/

Poster from rally at the Manhattan Institute on December 10, 2014. Source: hollow sidewalks License: https://creativecommons.org/licenses/by/2.0/

The consequences for those targeted are far from minimal. Broken windows policing not only places Black lives at risk of lethal and excessive force, as well as sexual harassment, assault, and extortion in exchange for avoiding a ticket or arrest, it also subjects Black people to the daily indignity of being stopped and questioned in their own communities, being ordered to put their hands on the wall and spread their legs to be frisked in front of their neighbors, and sometimes spending 24 hours wending their way through police vans, precincts, and central booking pens between arrest and arraignment. Even if they simply receive a summons, they are still required to spend at least one day in court defending themselves against minor charges, to pay exorbitant fines and criminal court fees, and to comply with community service and other mandates imposed on people convicted of offenses as minor as spitting or littering.

Black people of all genders and sexualities come within the crosshairs of broken windows policing. In fact, one of the less frequently discussed realities is that it facilitates racialized policing of gender and sexuality.46 According to Tanya Erzen, broken windows policing “enables officers to act upon racial and gender biases they may have when they enter the police department—under the guise of enforcement of ‘unified guidelines.’”47 All too often, officers read actual or perceived gender disjuncture as inherently out of order, resulting in stops, harassments, and arrests of transgender, gender nonconforming, and queer people of color—along with anyone perceived to deviate from racialized “rules” of gender or sexuality—for “disorderly” or “lewd” conduct offenses.48 Stereotypes framing gender nonconforming people as inherently violent and deviant also lead gender nonconforming young women to be profiled and targeted in the context of “gang policing.”49

Broken windows policing is also a driving force behind aggressive policing of street-based prostitution, which has been documented to have racially disparate impacts. These are rooted both in profiling of Black women and women of color—trans and not trans—as being engaged in prostitution based on age-old stereotypes, and also in the makeup of sex work which, like every other industry, concentrates Black women and transgender people in its most visible and risky sectors (such as street-based prostitution, which more Black women are pushed into, versus legal strip clubs, which frequently discriminate against women of color).50 Gay and gender nonconforming men, for their part, are profiled and discriminatorily targeted for enforcement of lewd conduct laws in public bathrooms and public parks. The broad discretion allowed in enforcement is fueled by perceptions of Black and Brown men—and particularly those who are gender nonconforming or perceived to be queer—as hypersexual uncontrolled manifestations of sexual deviance, with predictably racially disparate impacts.51

Black Lives over Broken Windows

Even as the broken windows theory trades in fear of Black people, it claims the mantle of protecting Black communities seeking more safety, and thereby, protecting Black lives.52 Heather MacDonald of the right-wing Manhattan Institute twists the logic of Black Lives Matter to argue that broken windows policing “has saved thousands of black lives, brought lawful commerce and jobs to once drug-infested neighborhoods and allowed millions to go about their daily lives without fear.”53

Right-wing commentators claiming to be concerned with the welfare of Black communities are not alone. Progressives like David Thacher of the Gerald Ford School of Public Policy in Michigan, writing in a blog for The Marshall Project, have critiqued Campaign Zero’s call for an end to broken windows policing, pointing to Black communities’ right to safety and safe public spaces.54 Thacher, like Kelling, acknowledges the pitfalls of enforcing vague offenses like “disorderly conduct,” as well as more specific ones like bans on skateboarding or public drinking, which are not enforced in white suburbs as they are in Black communities. He acknowledges that, “As long as modern police forces have been around, they have used disorderly conduct statutes and many other public order rules to investigate suspicious and unpopular people in circumstances when doing so overtly would be forbidden,” noting that “the Ferguson Police Department’s intensive use of a city code provision regulating a pedestrian’s ‘manner of walking in the roadway’ to run warrant checks and question suspicious people is only one of many examples.”55 Although he argues for a kinder, gentler form of broken windows in the interests of Black community safety, Thacher’s arguments in fact support the notion that it is bound to produce the same results.56 Unfortunately, that hasn’t stopped some community leaders, legislators, and policymakers from continuing to promote and invest in this flawed approach in the name of safety for Black and Brown communities.

The Black Youth Project 100's 2014 report "Agenda to Keep us Safe." Source: http://byp100.org

The Black Youth Project 100’s 2014 report “Agenda to Keep us Safe.” Source: http://byp100.org

Increasingly though, Black communities across the country are speaking for themselves, loudly and clearly, demanding safety from all forms of violence—including the violence of profiling, discriminatory enforcement, and police violence intrinsic to broken windows policing. They are resisting the false choices presented by broken windows proponents, demanding both authentic safety and an end to police violence, harassment, and surveillance, along with respect for rights and dignity. As the Malcolm X Grassroots Movement of New York City stated in the wake of Eric Garner’s killing, the “’broken windows’ philosophy of policing, which purports that focusing resources on the most minor violations will somehow prevent larger ones, has consistently resulted in our rights being violated.”57 They emphatically state that safety cannot come at the price of daily harassment, violation, and the taking of Black lives.

Black voices and communities are articulating their own visions of safety through Black Youth Project 100’s Agenda to Keep us Safe 58 and Agenda to Build Black Futures, Campaign Zero, and demands articulated by Black Lives Matter59 and Ferguson Action.60 What ties many of these agendas together is the notion that the best strategy to promote safety in Black communities is to divest from policing and punishment and instead invest in and support Black communities, leaving no one behind.  Together, they issue a clarion call to combat and dismantle systems of structural discrimination that foster violence while limiting opportunities and life chances of Black people—including “broken windows” policing.


About the Author

Andrea Ritchie is a Black lesbian police misconduct attorney and organizer who has engaged in extensive research, writing, litigation, organizing and advocacy around policing of women and LGBT people of color over the past two decades. She is a 2014 Senior Soros Justice Fellow, author of Law Enforcement Violence Against Women of Color, in The Color of Violence: The INCITE! Anthology, and co-author of Say Her Name: Resisting Police Brutality Against Black Women; A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV, and Queer (In)Justice: The Criminalization of LGBT People in the United States. She is currently at work on Invisible No More: Racial Profiling and Police Brutality Against Women of Color, forthcoming from Beacon Press in early 2017, and is a contributor to Who Do You Serve? Who Do You Protect?, published by Haymarket Press in June 2016


Endnotes

*Editor’s note: PRA’s convention is to capitalize both Black and White, to emphasize that both are constructed categories. At the request of the author, this article departs from that convention.
1 Campaign Zero, www.joincampaignzero.org (last visited January 18, 2016).

2 Tierney Sneed, “From Ferguson to Staten Island, Questions about Broken Windows Policing,” U.S. News & World Report, August 14, 2014, http://www.usnews.com/news/articles/2014/08/14/michael-brown-eric-garner-deaths-add-scrutiny-to-broken-windows-policing.

3 “About #ThisStopsToday,” This Stops Today, http://www.thisstopstoday.org/aboutus/ (last visited April 5, 2016).

4 Emily Thomas, “Pregnant Woman Allegedly Put in Chokehold by NYPD Officer,” Huffington Post, July 28, 2014, http://www.huffingtonpost.com/2014/07/28/pregnant-woman-chokehold-nypd-rosan-miller_n_5628306.html.

5 Jim Hoffer, “Investigation: Woman Claims Brutality Against NYPD Officer,” Eyewitness News, ABC 7 NY (New York, NY: WABC – TV, August 1, 2014). Available at: http://abc7ny.com/news/investigation-woman-claims-police-brutality-against-nypd-officer/229978/ (last visited January 18, 2016).

6 Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer (In)Justice: The Criminalization of LGBT People in the United States (Boston: Beacon Press, 2011).

7 Jessica Testa, “The 13 Black Women Who Accused a Cop of Sexual Assault, In Their Own Words,” BuzzFeed, December 10, 2015, https://www.buzzfeed.com/jtes/daniel-holtzclaw-women-in-their-ow.

8 George L. Kelling and James Q. Wilson, “Broken Windows: The Police and Neighborhood Safety,” The Atlantic, March 1982, http://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/.

9 Sam Roberts, “Author of ‘Broken Windows’ Policing Defends His Theory,” New York Times, August 10, 2014, http://www.nytimes.com/2014/08/11/nyregion/author-of-broken-windows-policing-defends-his-theory.html; Matt Schudel, “James Q. Wilson, scholar identified with ‘broken-windows’ theory of crime prevention, dies at 80,” Washington Post, March 2, 2012, https://www.washingtonpost.com/national/james-q-wilson-scholar-identified-with-broken-windows-theory-of-crime-prevention-dies-at-80/2012/03/02/gIQA2eHynR_story.html.

10 Alex Vitale, “The Neoconservative Roots of the Broken Windows Theory,” Gotham Gazette, August 1, 2014, http://www.gothamgazette.com/index.php/opinion/5199-neoconservative-roots-broken-windows-policing-theory-nypd-bratton-vitale.

11 Matt Schudel, supra note 9.

12 Alex Vitale, supra note 10.

13 Jacob Ertel, “Broken Windows, Workfare, and the Battle for Public Space in Giuliani’s New York,” Cyrano’s Journal, January 8, 2015, http://www.cjournal.info/2015/01/08/broken-windows-workfare-and-the-battle-for-public-space-in-giulianis-new-york-2/.

14 Matt Schudel, supra note 9.

15 Pam Chamberlain, “James Q. Wilson: A Dominant Figure Among Conservative Crime Theorists,” in Defending Justice: An Activist Resource Kit, ed. Palak Shah, (Political Research Associates, 2005), 62. Available at: https://www.politicalresearch.org/wp-content/uploads/downloads/2012/12/Defending-Justice.pdf (last visited April 4, 2016).

16 Rudolph W. Giuliani and William J. Bratton, Police Strategy No. 5: Reclaiming the Public Spaces of New York, July 6, 1994. Available at: http://marijuana-arrests.com/docs/Bratton-blueprint-1994–Reclaiming-the-public-spaces-of-NY.pdf (last visited April 4, 2016).

17 Molly Crabapple, “How Broken Windows Policing Harms People of Color,” YouTube video, posted by Fusion, February 3, 2015, https://www.youtube.com/watch?v=iXI1QJRqPD8, (last visited January 17, 2016).

18 Kelling and Wilson, supra note 8.

19 Tanya Erzen, “Turnstile Jumpers and Broken Windows: Policing Disorder in New York City,” in Zero Tolerance: Quality of Life and the New Police Brutality in New York City, 19-49, eds. Andrea McArdle and Tanya Erzen, (New York: NYU Press, 2001).

20 Ken Auletta, “Fixing Broken Windows,” The New Yorker, September 7, 2015, http://www.newyorker.com/magazine/2015/09/07/fixing-broken-windows.

21 Randall Shelden, “Assessing ‘Broken Windows’: A Brief Critique,” Center on Juvenile and Criminal Justice, April 2004, http://www.cjcj.org/uploads/cjcj/documents/broken.pdf; Ken Auletta, “Fixing Broken Windows,” The New Yorker, September 7, 2015, http://www.newyorker.com/magazine/2015/09/07/fixing-broken-windows; K. Babe Howell, “Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order-Maintenance Policing,” N.Y.U. Review of Law & Social Change, vol. 33 (2009): 271, 274; William Harms, “Study Conducted in Chicago Neighborhoods Calls ‘Broken Windows’ Theory into Question,” University of Chicago Chronicle, vol. 19, no. 7 (January 6, 2000).

22 Bernard E. Harcourt, “Punitive Preventive Justice: A Critique” (University of Chicago Public Law & Legal Theory Working Paper No. 386 / Coase-Sandor Institute for Law & Economics Working Paper No. 599, 2012). Available at: http://chicagounbound.uchicago.edu/law_and_economics/401/ (last visited January 15, 2016).

23 George Kelling, “Don’t Blame My Broken Windows Theory for Poor Policing,” Politico Magazine, August 11, 2015, http://www.politico.com/magazine/story/2015/08/broken-windows-theory-poor-policing-ferguson-kelling-121268.

24 Kelling and Wilson, supra note 8.

25 Rudolph W. Giuliani and William J. Bratton, supra note 16.

26 Jacob Ertel, supra note 13.

27 George Kelling, supra note 22.

28 Ibid.

29 Kelling and Wilson, supra note 8.

30 Ibid.

31 Ibid.

32 Ibid.

33 Dayo F. Gore, Tamara Jones, Joo-Hyun Kang, “Organizing at the Intersections: A Roundtable Discussion of Police Brutality Through the Lens of Race, Class, and Sexual Identities,” in Zero Tolerance: Quality of Life and the New Police Brutality in New York City, 19-49, eds. Andrea McArdle and Tanya Erzen, (New York: NYU Press, 2001).

34 Erzen, supra note 19.

35 K. Babe Howell, supra note 20.

36 Charles Reich, qtd. in: Phillip Beatty, Amanda Petteruti, and Jason Ziedenberg, The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties (Washington, D.C.: Justice Policy Institute, 2007), 14.

37 Dorothy E. Roberts, “Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing,” Journal of Criminal Law & Criminology 89, no. 3 (1999), 775, 777-78.

38 George L. Kelling and James Q. Wilson, supra note 8.

39 Pete White, Los Angeles Community Action Network, presentation at preconference convening held in conjunction with U.C.L.A. Critical Race Studies Symposium, Los Angeles, CA, October 17, 2015.

40 Sarah Ryley, Laura Bult, Dareh Gregorian, “Daily News analysis finds racial disparities in summonses for minor violations in ‘broken windows’ policing,” New York Daily News, August 4, 2014, http://www.nydailynews.com/new-york/summons-broken-windows-racial-disparity-garner-article-1.1890567.

41 Jeremy Berke, “REPORT: The NYPD Makes The Most Arrests for a $2.75 Crime,” Business Insider, May 10, 2016, http://www.businessinsider.com/nypd-farebeating-arrests-2016-5.

42 Christopher Mathias, “This is What Broken Windows Policing Looks Like,” Huffington Post, October 9, 2015, http://www.huffingtonpost.com/entry/broken-windows-policing-new-york_us_5617f428e4b0082030a2573f.

43 Ibid.

44 Kelling and Wilson, supra note 8.

45 Ibid.

46 Mogul et al., supra n. 6.

47 Mogul, et al., supra n. 6; Tanya Erzen, supra note 19.

48 Mogul, et al., supra n. 6.

49 Amnesty International, Stonewalled: Police Abuse and Misconduct Against LGBT People in the United States, AMR 51/122/2005 (2005).

50 See e.g., Shana Judge and Mariah Wood, “Racial Disparities in Enforcement of Prostitution Laws,” APPAM, November 6, 2014, https://appam.confex.com/appam/2014/webprogram/Paper11163.html; Noah Berlatsky, “Black Women Profiled as Prostitutes in NYC,” Reason, October 1, 2014, http://reason.com/archives/2014/10/01/nypd-profiles-sex-workers-too.

51 Mogul, et al., supra n. 6.

52 Ibid.

53 Heather Mac Donald, “The New Nationwide Crime Wave,” Wall Street Journal, May 29, 2015, http://www.wsj.com/articles/the-new-nationwide-crime-wave-1432938425.

54 David Thacher, “Don’t End Broken Windows Policing, Fix It,” The Marshall Project, September 9, 2015, https://www.themarshallproject.org/2015/09/09/don-t-end-broken-windows-policing-fix-it.

55 Ibid.

56 Ibid.

57 Malcolm X Grassroots Movement, “Statement on the Murder of Eric Garner by the NYPD,” July 19, 2014, http://mxgm.org/malcolm-x-grassroots-statement-on-the-murder-of-eric-garner-by-the-nypd/.

58 Terrance Laney and Janaé Bonsu, Agenda to Keep us Safe, Black Youth Project 100, September 2014,  http://byp100.org/wp-content/uploads/2014/09/BYP100-Agenda-to-Keep-Us-Safe-AKTUS.pdf; Black Youth Project 100, “BYP100 Announces Release of the Agenda to Build Black Futures,” January 15, 2016,  http://byp100.org/bbf/.

59 Black Lives Matter, Guiding Principles, http://blacklivesmatter.com/guiding-principles/, (last visited January 18, 2016).

60 Ferguson Action, Our Vision for a New America, http://fergusonaction.com/demands/, (last visited January 18, 2016).

Crime Control & Political Repression: From the War On Drugs To The War On Terror

Click here to download the article as a PDF.

Click here to download the article as a PDF.

This article appears in the Winter 2016 issue of The Public Eye magazine.

American political time is often rhetorically divided into before and after the attacks of September 11, 2001. In this model, “before” signals liberty and respect for individual rights while “after” brought increasing restrictions and surveillance as a result of terrorism. But this distinction both romanticizes the past and obscures some of the institutional architecture underlying the War on Terror. In fact, there’s a direct line between the pervasive infiltration of Muslim communities seen since 2001 and the militarized street-surveillance and home invasion experienced by African American communities, which has steadily escalated from the early 1980s until the present.

The national emergence of the Black Lives Matter movement speaks to the level of rage (and community organizing) that exists beneath the surface of marginalized communities, but also to the impact of systematic law enforcement-driven repression. The steady expansion of both the power and use of law enforcement in multiple areas of life reflects (and institutionalizes) right-wing worldviews regardless of the political party or identity claims of the speaker.

Informants and undercover agents have been central to a significant proportion of federal prosecutions of “homegrown” Islamic terrorism cases.1 Those informants typically do much of the actual work to transform loose talk into concrete action.2 The procedural elements of these prosecutions, however, originated long before today’s War on Terror; the methods employed by the FBI against Muslims have been developed and refined for decades in the War on Drugs, as can be seen in brief descriptions below of a current homegrown terrorism case and a 1990s drug trafficking case.

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Statue depicting the traditional “Blind Justice,” in front of the Albert V. Bryan U.S. Courthouse in Alexandria, Virginia.. Photo by Tim Evanson via Flickr. 

On April 10, 2015, a 20-year-old Kansas man named John Booker was charged3 with three counts of attempted terrorism: attempt to use a weapon of mass destruction at Fort Riley, in northern Kansas; attempt to damage and destroy U.S. government property (again at Fort Riley); and attempt to provide material support to a foreign terrorist organization (specifically the Islamic State, or ISIS/ISIL). The FBI complaint details the involvement of two confidential informants who had actively participated in every stage of planning the “plot” underlying the charges: they provided Booker with a list of the materials needed to make a bomb, they volunteered to build the bomb for him, delivered the supposed bomb to him in a van, and provided him with a map of the Fort Riley area.

A year earlier, in March 2014, Booker had come to the attention of the FBI after posting messages on Facebook indicating that he was planning to engage in violent jihad. Booker was interviewed by FBI agents and described his plans in considerable detail, but was allowed to go free with no other action taken, suggesting that the FBI agents involved did not consider him a credible threat. It seems clear that John Booker ideologically supported ISIS/ISIL and had some aspiration to engage in violence, but these encounters with the FBI suggest that, on his own, he had little capacity to turn his provocative statements into action. The key event leading to the terrorism charges occurred in October 2014, approximately seven months after his first meeting with the FBI, when he met the first of the two informants who set in motion the events that led to his arrest in April 2015. (The information currently available on this case comes from the FBI, and does not describe the motivations of the informants or whether they received compensation of some kind for their participation.)

Compare Booker’s arrest and prosecution with that of a man identified only as Miguel in an article written by a former Drug Enforcement Agency (DEA) agent. In 1996, Miguel, an immigrant from Bolivia who worked as a parking lot attendant in Washington, D.C., was charged as a drug kingpin based solely on the testimony of a paid informant with an extensive criminal record.4 The informant had fled to the United States to avoid prosecution for a variety of criminal charges in Argentina and Bolivia, and over the preceding four years had been paid by the DEA for information in several other cases. Miguel had spent three of those years working 60 hours a week for a large parking lot company.

The informant was a distant family friend of Miguel and, based on his past experience, saw an opportunity to make money by fabricating a story to sell to the DEA. He proceeded to invent a fake “cocaine deal,” wherein Miguel was the “kingpin,” even though Miguel had no prior involvement in drugs or drug dealing. While the informant developed his story with the DEA, he simultaneously lured Miguel into playing along with a supposed one-time deal that would net them both considerable cash, if Miguel pretended to be a major Bolivian cocaine dealer. It ended with a staged transaction in which Miguel accepted a bag of cash in exchange for a promise to deliver cocaine a few weeks later; he was arrested as he left the room. The informant was paid $30,000 for arranging the encounter, and after several years in and out of court Miguel ended up taking a plea bargain than gave him a four-year sentence.

Informants have played such consistent and central roles in the War on Drugs that the provision of information has repeatedly generated elaborate economic relationships between prosecutors and inmates. In 1990, an L.A. County grand jury found that a well-developed network of jailhouse informants investigated cases based on newspaper accounts and any other sources they could acquire, and provided (largely false) testimony for the prosecutor’s office in exchange for reduced jail time, privileges, and other incentives.5 Between 2004 and 2006, a similar network of informants was found to be operating in Texas prisons, investigating cases based on publically accessible material and providing testimony for the prosecutor’s office, resulting in some cases being thrown out.6 Informants in homegrown terrorism cases, similarly, often receive some form of compensation, including money or assistance with immigration or other legal issues.7

The Right and the War on Drugs

U.S. drug policy has deeply racist roots. The Harrison Act of 1914, the first law to significantly control access to opiates and cocaine, was passed in part by exacerbating prejudices against Chinese immigrants and impoverished southern African Americans.8 In the early 1930s, Harry Anslinger, head of the newly created Federal Bureau of Narcotics, claimed that use of marijuana caused half of the violent crime committed in Black, Mexican and other Latin American immigrant neighborhoods.9 The War on Drugs both continued and dramatically amplified this historical pattern. Nixon’s 1971 declaration that drugs were a threat to the nation occurred within the context of significant social conflict and change, during which conservative resistance to the Civil Rights movement included defining social unrest as criminal activity.10 Ronald Reagan, in turn, built upon two of Nixon’s more toxic legacies: the “Southern Strategy” of using mildly-coded racism to align southern Whites with the Republican party, and the War on Drugs, with its attendant images of Black urban crime and drug dealing. (It’s worth noting that Whites and Blacks use and sell drugs at very similar rates.11)

The ideological valuing of order, discipline, and traditional social hierarchies are definitional characteristics of right-wing movements, from fascism to the KKK, and the Moral Majority to the Tea Party.

One of the challenges in describing the links between the Right Wing and both the War on Drugs and the War on Terror is the extent to which the political discourse of U.S. society has moved to the Right culturally. Over the last 40 years, the U.S. has grown increasingly sensitive to the perception of risk and the need for safety, accepting “freedom from” over “freedom to.” This is characteristic of societal moves to the Right, as German philosopher Erich Fromm noted in relation to the cultural psychology underlying the growth of Nazism. The ideological valuing of order, discipline, and traditional social hierarchies are definitional characteristics of right-wing movements, from fascism to the KKK, and the Moral Majority to the Tea Party. Yet core elements of this mindset have become normalized in the U.S., with Democrats as well as Republicans wanting to appear tough on both crime and foreign policy, and the presence of police officers in schools treated as normal (even when individual officers’ behavior may be questioned). Throughout the War on Drugs, personal privacy and individual liberty were steadily constricted by the need to keep us “safe” from the dangers of drug use and drug dealing, laying the legal and cultural groundwork for the much greater invasiveness of the War on Terror that would follow.

Race, Searches, and the Presumption of Guilt

In the movie CitizenFour, filmmaker Laura Poitras implicitly and explicitly makes the point that much of what we now talk about as “privacy” used to be called liberty. When the War on Terror began, the justification of mass searches of body and property on the grounds of safety had already become astoundingly normalized, and complaints were met with the assertion that only the guilty need worry. Once a society has accepted the need for chronic, invasive control of one vulnerable community on the grounds of protecting society, it’s a small step to target additional communities and employ somewhat different forms of surveillance.

Much of what we now talk about as “privacy” used to be called liberty.

Routine drug testing has become perhaps the most widespread example of the erosion of judicial and Constitutional protections against searches without probable cause. Urine tests for evidence of recent drug use have become a commonplace experience for health care workers, transit workers, and numerous other public service occupations, and are a standard element of participation in high school team sports. However taken-for-granted this has become, prior to 1989 routine drug tests without individual suspicion only took place in the military. In 1986, the Reagan Administration recommended testing employees for drug use as part of the War on Drugs, and the 1988 Drug Free Workplace Act required that companies with federal contracts provide a workplace free of illicit substances. In response, there were multiple cases in which courts ruled against mass-testing of firefighters,12 school bus drivers,13 and public school students,14 on the grounds that testing without individual suspicion would violate due process, privacy and protections against unreasonable search and seizure. In 1989, however, the Supreme Court discovered a “legitimate [state] interest” in protecting the public from drug use that justified an exception to the due process and individual suspicion requirements in the Fourth Amendment.15 Widespread testing in aviation, trucking, railroads and mass transit quickly followed. By 1995, the court’s understanding of legitimate state interest had moved so far that it approved random mandatory testing of student athletes.16

Silent March against "Stop and Frisk," New York City, 2012. Photo by Michael Fleshman via Flickr. License: https://creativecommons.org/licenses/by-sa/2.0/

Silent March against “Stop and Frisk,” New York City, 2012. Photo by Michael Fleshman via Flickr. 

At the same time, Fourth Amendment protections were being eroded in other ways as well. The most egregious and destructive violations of privacy and person in the War on Drugs may be the development of the no-knock warrant. In 1970, an anti-crime bill authorized judges to issue search warrants that permitted agents to break down a door without first knocking and identifying themselves. The warrants were initially permitted for use only in a small number of federal anti-drug investigations, but they are now more common and associated with SWAT team raids, which increased from 3,000 in 1981 to 50,000 in 2005.17 An ACLU review18 of SWAT raids found that almost 80 percent were used to serve a search warrant (62 percent for a drug search) but only 35 percent of cases clearly resulted in finding contraband of any kind.

No-knock warrants and SWAT raids have resulted in an uncountable number of unnecessary injuries and deaths that are in some ways intrinsic to the process of militarized forced entry into a home. In Massachusetts in 2011,19 a 68-year-old African American man was watching TV in his pajamas when a SWAT team broke down his door with a no-knock warrant to search for his daughter’s boyfriend, who did not live at the house. The man was shot while lying facedown on the floor, and it was later revealed that the suspect they were looking for had been arrested outside the home before the door was broken down. In Georgia in 2014,20 officers executed a no-knock warrant at 3 A.M. at a home with children’s toys in the yard. They threw a flashbang or “stun” grenade into the home as they entered, and the grenade landed in the crib of a 19-month-old toddler. Given the number of no-knock warrants issued annually, it is literally impossible to know the exact number that have resulted in injury or death to innocent parties, but the process puts the people inside the home at significant risk.

Cases and Trials: Prosecutors and Courts

The expansion of law enforcement powers over the past 40 years has not been limited to invasions of privacy, but has moved into the operation of criminal law in the courts as well. Progressives have historically viewed the federal courts as upholders of basic rights and protections, largely based on the work of the Civil Rights division of the Department of Justice. But the criminal branch of the federal system has become fully complicit in law enforcement assaults on vulnerable communities in both the War on Drugs and the War on Terror.

Drug laws have had a significant effect on criminal charging, trials and convictions in the federal courts in ways that enabled the subsequent, and higher profile, prosecutorial abuses of the War on Terror. The road from arrest to prison, from police practices to mass incarceration, passes through the courts. Theoretically, judges hold significant power, both direct and indirect, to modify law enforcement practices through questions about the admissibility of evidence, the constitutionality of particular actions, and the ultimate sentence imposed on a guilty party. An obscure but crucial element of the War on Drugs has been to shift power from judges to prosecutors,21] with multiple consequences for criminal defendants. These changes have both grown out of and accelerated the politicization of crime and punishment.22

Mandatory minimums

In 1984, the Comprehensive Crime Control Act replaced the federal Parole Commission with the Sentencing Commission, a bureaucratic declaration that punishment now trumps rehabilitation in the federal prison system. From 1984-88, the Sentencing Commission and subsequent anti-drug bills eliminated parole in the federal prison system and instituted escalating mandatory minimum sentences for drug offenses, including dramatically higher sentences for crack cocaine over powder cocaine.23 The sentencing disparity between crack and powder cocaine was the most overtly racialized element of the anti-drug bills, since crack was known to be a form of cocaine largely used by Blacks while cocaine in powder form was more common among Whites. The elimination of parole for all federal convictions after 1987, when the rule was passed, has been less visible since state prison systems still have parole and the vast majority of incarcerated people are in state prisons. The recent attention to the early release of 6,000 people convicted of federal drug offenses24 might not have happened if they could have been quietly released on parole without the need for formal action.

In combination, the sentencing guidelines and elimination of parole shifted the balance of power in the federal courts.25 Mandatory minimum sentences mean that the parameters of prison time are primarily determined by the charge itself, and negotiations then focus on the charge as a way to manage the sentencing outcome. In practical terms, this gives prosecutors enormous power to determine the fate of an arrestee through the minimums associated with different charges, and facilitates a pervasive system of plea bargains in which a defendant’s fate is determined outside the courtroom and with little judicial oversight. This dynamic was exacerbated by cutbacks to public defenders and other indigent defense resources.

Plea bargains

Approximately 90 percent of cases settle through the plea bargain process, and defendants who insist on going to trial usually receive harsher sentences,26 although this may reflect the power of sentencing guidelines. Plea bargains involve manipulation of the charges and sentencing recommendations made by the prosecutor, without meaningful judicial review or meaningful documentation of the negotiation process. The sentencing guidelines for drug offences exacerbate this situation dramatically, with punitive threats of charges that carry high mandatory minimums used to coerce bargains.27 A particularly toxic element of the process comes from a clause in the drug-related sentencing guidelines that recommends reduced sentences for defendants who “cooperate” with police and prosecutors. This clause has generated a quasi-underground economy of “snitching” in which information buys sentence reductions, generally at the expense of those too powerless to exact revenge.

Use of informants

Informants have become a pervasive aspect of drug cases at both federal and local levels, but with little or no oversight by the Department of Justice.28 The system of mandatory minimums paired with leniency in exchange for information offers significant incentives for defendants to provide information to police and prosecutors and creates a legal context that invites corruption from all players.29 Over time, this constant supply of informants has generated some dependence among prosecutors, exemplified by Miguel’s story, as informant testimony provides a less expensive and time consuming alternative to building cases based on material evidence.30 The resulting system invites slanted or outright false testimony from informants while providing significant incentives for prosecutors to overlook indications of problems with informant sources and lack of supporting evidence.31 It also uses the weak to punish the weak: turning in an impoverished neighbor safely reduces prison time, while providing information about higher-level drug dealers could cause more problems than it solves.

Federal prosecutions of “homegrown terrorism” build on elements of the War on Drugs: defendants face extreme prison sentences, power lies primarily with prosecutors and investigators, and cases are built through dependence on informants and plea bargains coupled with extended pre-trial detention.

This system of threats, harsh prison sentences, informants, and plea bargains should sound very familiar to anyone paying close attention to terrorism cases. Federal prosecutions of “homegrown Islamist” terrorism build on elements of the War on Drugs: defendants face extreme prison sentences, power lies primarily with prosecutors and investigators, and cases are built through dependence on informants and plea bargains coupled with extended pre-trial detention.32

Prosecuting “terrorists”

U.S.-based Islamist terrorism cases, commonly called “homegrown,” have the same core procedural elements as drug prosecutions although they are anchored in a different set of criminal laws. People charged with committing certain offenses (e.g. weapons possession) for political reasons face “terrorism enhancements” rather than mandatory minimums, but with similar consequences. Terrorism enhancements add a multiplier to the standard sentencing recommendations for a charge, again shifting significant power to the prosecutor in the choice of what charges to file. The resulting threat of extreme sentences creates pressure for negotiated guilty pleas and sentencing bargains. Informants again play a central role in the building of cases, and typically receive significant legal or financial incentives for their cooperation with authorities. Threats of deportation or prosecution as well as plea bargains on existing charges have proven as effective in generating informants in terrorism cases as they have in drug cases. The process again creates cases that get resolved largely behind the scenes, with vulnerable defendants pressured into guilty pleas in exchange for reduced sentences. The resulting spectacle reinforces the perception of Muslim communities as centers of terrorist activity, although a closer look at prosecutorial activity raises questions about the definition of certain legal terms.

Theories of prevention

Many civil rights advocates have pointed to the increased militarization of police forces as a factor in political repression. Photo by Tony Webster via Flickr. License: https://creativecommons.org/licenses/by/2.0/.

Many civil rights advocates have pointed to the increased militarization of police forces as a factor in political repression. Photo by Tony Webster via Flickr. 

Legally, the defense of entrapment requires prosecutors to demonstrate that the defendant would have committed a crime of this type regardless of the informant or undercover agent. Homegrown terrorism cases have been built around a theory of radicalization to support prosecution arguments that Muslim defendants would have engaged in terrorism without the instigation of the informant or law enforcement officials,33 a claim to “pre-emptive” prosecution as a form of national defense. While focused on religion and national security, the core logic of the argument builds upon and extends the presumptions of danger and guilt embedded in the criminalization of low-income Black and Latino communities through frisking young Black men walking down the street or calling the police to handle misbehaving students in inner city public schools. In all these cases, the justification rests on a presumption that membership in certain racial/ethnic groups constitutes a predisposition to commit particular kinds of acts, and that militarized police practices are necessary to protect society.

Politics by other means

Among progressives, the War on Drugs and mass incarceration are increasingly understood in relation to the larger history of legal repression of Black people in the U.S. The focus on post-1970s racially disproportionate incarceration and its consequences,34 however, overlooks both the deeply racialized history of U.S. drug law and the multiple contexts for the expansion of law enforcement over the past 40 years.

U.S. drug law has been a tool of racial control throughout its 100-year history, 35 but the War on Drugs shifted the legal environment in qualitative, and not just quantitative, ways. As described throughout this article, the past four decades have seen changes in constitutionally-derived legal protections regarding searches and the right to privacy of home and person which affect all of us to some degree, but have specifically targeted African American communities. Within the court system, there has been a systematic shift of power from judges to prosecutors and the creation of incentives for the use of informants and other practices that reduce transparency and sidestep open judicial process. These gradual but steady reductions in civil liberties and the protections of due process were initially developed to “protect” the public from exposure to drugs and drug use, but have expanded into other areas of law enforcement. Over the past few years, the mandatory minimums and mass incarceration of the War on Drugs have been rolled back in certain ways, as with the decision to release several thousand federal prisoners as part of a rollback of mandatory minimum sentences.36 Meanwhile, the War on Terror continues unabated and employs many of the same legal strategies at an even higher level against Muslim communities in the U.S.

The War on Drugs and the War on Terror invite us to think about ways law enforcement engages in political repression outside contexts of heightened mobilization.

The War on Drugs and the War on Terror invite us to think about ways law enforcement engages in political repression outside contexts of heightened mobilization. In the 1960s, COINTELPRO (a portmanteau for the FBI’s Counter Intelligence Program) targeted activists, organizations, and black communities during a period of widespread collective action. In contrast, the War on Drugs and War on Terror focus on communities primarily defined by vulnerability, not active resistance. The systematic targeting of Muslim communities has generated more fear than mobilization, and the targets of FBI anti-terrorism activities are often poor and socially or emotionally troubled.37 While African American communities have historically experienced recurrent waves of political mobilization and unrest, that had not been their primary condition for many years until the emergence of the Black Lives Matter movement.

While the legal changes described in this article can be traced directly to the War on Drugs, the past 30-40 years have seen an overall pattern of criminalization of the poor justified by the need for order and discipline. The increased use of paramilitary police units like SWAT teams to execute search warrants and other routine procedures has expanded in small towns and rural areas as well as major cities.38 In a process sometimes described as the school-to-prison pipeline, police officers have become part of the normal disciplinary apparatus in public schools, and now arrest students, primarily low-income students of color, for behavior that used to be handled within the school.39 Homelessness has effectively become a crime in many cities, with local laws prohibiting sleeping, lying down, or even sitting for long periods of time in public spaces.40 Criminalization has extended into sexuality and public health, as laws to protect living children are used to prosecute pregnant women for child abuse for, say, delivering children born with drugs in their system or refusing a doctor’s orders,41 and young gay men and trans women of color are charged as sex workers for carrying more than three condoms.42 Simultaneously, the consequences of having a criminal record have expanded in ways that further marginalize the poor, such as limiting access to public housing and a range of social welfare programs, including some forms of student financial aid.43

The distinction between crime control and political repression has eroded, with criminalization used as a method to contain populations that might otherwise be politically problematic.

One lesson of the War on Drugs may well be that the distinction between crime control and political repression has eroded, with criminalization used as a method to contain populations that might otherwise be politically problematic. The War on Drugs and the school-to-prison pipeline have resulted in high levels of incarceration and other forms of legal supervision (such as probation) among young African Americans, which in turn creates other forms of vulnerability such as lack of education, employment, and housing. The stigma of being labeled a criminal compounds the technical disenfranchisement of loss of voting rights, access to social welfare programs, and a wide range of employment opportunities. In addition, mainstream Civil Rights organizations have historically been slow to engage with criminal law,44 and the growing critique of drug law and mass incarceration are a relatively recent phenomenon.

From a political perspective, one advantage of the tactic lies in the stigma and fear associated with criminalization. People accused of stigmatized crimes are difficult to defend, even for Civil Rights advocates, and civil liberties protections can be rolled back under the mantle of crime control and community safety. As a result, a highly developed and refined contemporary system of legal coercion, repression, surveillance, and associated institutional infrastructure remained largely outside of the progressive political vision, even as it was adapted for targeting Muslim communities.

Beyond the officially declared wars on drugs and terror, the expanding circles of criminalization described above have steadily encroached on social justice discourse in multiple arenas, eroding social movement gains through legal assaults on the young, poor, and otherwise vulnerable. The unwillingness of many progressives to challenge the criminal justice system and defend those caught in its net enabled mass incarceration to grow largely unchecked for over 30 years, as low-income Black communities experienced growing devastation. In order to truly roll back the power of right-wing movements in the U.S., progressives will have to challenge the politics of fear and criminalization, and stand in alliance with those pushed outside of society through the legal system. Black Lives Matter activists model this every day by refusing attempts to implicitly justify police violence through criminalizing Michael Brown, Eric Garner, Freddie Gray, and others. Will other movements follow that path?


About the Author

Naomi Braine is an Associate Professor in the Sociology Department at Brooklyn College, CUNY, and a lifelong activist in struggles for social justice. Her political and intellectual work has addressed mass incarceration, the war on drugs/drug policy, HIV and collective action, and, more recently, the war on terror.


Endnotes

[1] Thomas Cincotta, “Platform for Prejudice: How the Nationwide Suspicious Activity Reporting Initiative Invites Racial Profiling, Erodes Civil Liberties, and Undermines Security.” Political Research Associates, March 2010, https://www.politicalresearch.org/resources/reports/full-reports/platform-for-prejudice/

[2] Human Rights Institute, Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions. (New York: Columbia School of Law and Human Rights Watch, 2014); Center for Human Rights and Global Justice, Targeted and Entrapped: Manufacturing the “Homegrown Threat” in the United States. (New York: NYU School of Law, 2011).

[3] All information on the Booker case comes from the formal complaint filed on April 10, 2015: USA v John T. Booker, Jr a.k.a. “Mohammed Abdullah Hassan”, Case Number: 15-mj-5039-KGS, D.C. KS (Topeka Docket).

[4] Michael Levine, “King Rats: Criminal informants are the real winners in then DEA’s drug war,” Utne Reader, May-June 1996, http://www.utne.com/politics/king-rats-criminal-informants-judicial-folly.aspx.

[5] Los Angeles County Grand Jury, “Investigation of the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles County,” June 26, 1990.

[6] Randy Balko, “Guilty before proven innocent.” Reason.com, May 2008, https://reason.com/archives/2008/04/14/guilty-before-proven-innocent.

[7] Center for Human Rights and Global Justice, Targeted and Entrapped: Manufacturing the “Homegrown Threat” in the United States. (New York: NYU School of Law, 2011).

[8] Nancy Campbell, Using Women: Gender, Drug Policy, and Social Justice. (New York: Routledge Press, 2000); David Musto “Opium, Cocaine, and Marijuana in American History.” Scientific American 40, no. 7 (July 1991).

[9] Susan Speaker, “Demons for the Twentieth Century: the Rhetoric of Drug Reform, 1920-40.” in Altering American Consciousness: The History of Alcohol and Drug Use in the United States, 1800-2000, edited by Sarah Tracy and Caroline Acker, (Univ of Mass Press. 2004).

[10] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. (New York: The New Press, 2010).

[11] Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

[12] Lovvorn v City of Chattanooga, (861 F.2d 1388 (D.C. TN 1986)); Capua v City of Plainfield, (643 F.Supp. 1507 (D.C. NJ 1986)).

[13] Jones v Mckenzie, (833 F.2d 335 (D.C. DC 1986)).

[14] Odenheim v Carlstadt-East Rutherford School District, (510 A.2d 709 (S.C. NJ 1985)).

[15] National Treasury Workers Union v. Von Raab, 489 U.S. 656 (1989).

[16] Vernonia v. Acton, Washington School District, (23 F.3d 1514 (9th Cir. 1995)).

[17] Peter Kraska and Louis Cubellis, “Militarizing Mayberry and Beyond: Making Sense of American Paramilitary Policing.” Justice Quarterly 14 no. 4 (December 1997); American Civil Liberties Union (ACLU), War Comes Home: the Excessive Militarization of American Policing. ACLU, 2014, https://www.aclu.org/report/war-comes-home-excessive-militarization-american-police.

[18] ACLU, War Comes Home: the Excessive Militarization of American Policing.

[19] ACLU, War Comes Home: the Excessive Militarization of American Policing.

[20] ACLU, War Comes Home: the Excessive Militarization of American Policing.

[21] Jamie Felner, An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty. Human Rights Watch, December 5, 2013, https://www.hrw.org/report/2013/12/05/offer-you-cant-refuse/how-us-federal-prosecutors-force-drug-defendants-plead.

[22] Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. (New York: Oxford Univ Press, 2007).

[23] Felner, An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.

[24] Michael S. Schmidt, “US to Release 6000 Inmates From Prisons,” New York Times, October 6, 2015, http://www.nytimes.com/2015/10/07/us/us-to-release-6000-inmates-under-new-sentencing-guidelines.html?_r=0

[25] Felner, An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.; Alexander Natapoff, Snitching: Criminal Informants and the Erosion of American Justice. (New York: New York University Press, 2009).

[26] Lindsey Devers, Plea and Charge Bargaining: Research Summary. Bureau of Justice Assistance, U.S. Dept of Justice, January 24, 2011.

[27] Felner, An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.

[28] Natapoff, Snitching: Criminal Informants and the Erosion of American Justice.

[29] Natapoff, Snitching: Criminal Informants and the Erosion of American Justice.; Felner, An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.

[30] Natapoff, Snitching: Criminal Informants and the Erosion of American Justice.

[31]Los Angeles County Grand Jury, “Investigation of the Involvement of Jail House Informants in the Criminal Justice System in Los Angeles County.”

[32] This summary and the material in the next section, Prosecuting Terrorists, all comes from the following two reports: Human Rights Institute, Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions.; Center for Human Rights and Global Justice, Targeted and Entrapped: Manufacturing the “Homegrown Threat” in the United States.

[33] Stephen Downs, Esq, and Kathy Manley, Esq, Inventing Terrorists: the Lawfare of Preemptive Prosecution. (Albany NY: Project SALAM and the National Coalition to Protect Civil Freedoms, May 2014), http://www.projectsalam.org/inventing-terrorists-study.pdf.

[34] Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

[35] Campbell, Using Women: Gender, Drug Policy, and Social Justice.; Musto, “Opium, Cocaine, and Marijuana in American History.”

[36] Schmidt, “US to Release 6000 Inmates From Prisons.”

[37] Center for Human Rights and Global Justice, Targeted and Entrapped: Manufacturing the “Homegrown Threat” in the United States.; Downs, Esq, and Manley, Esq,  Inventing Terrorists: the Lawfare of Preemptive Prosecution.

[38] Kraska and Cubellis, “Militarizing Mayberry and Beyond: Making Sense of American Paramilitary Policing.”

[39] Karen Dolan and Jodi L. Carr, The Poor get Prison: the Alarming Spread of the Criminalization of Poverty. Report from the Institute for Policy Studies, DC.

[40] Dolan and Carr, The Poor get Prison: the Alarming Spread of the Criminalization of Poverty.

[41] Lynn Paltrow and Jeanne Flavin, “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health.” Journal of Health Politics, Policy and Law 38 no. 2 (January 2013).

[42] Margaret H. Wurth, Rebecca Schleifer, Megan McLemore, Katherine W. Todrys and Joseph J Amon, “Condoms as evidence of prostitution in the United States and the criminalization of sex work,” Journal of International AIDS Society 16, (May 2013).

[43] Dolan and Carr, The Poor get Prison: the Alarming Spread of the Criminalization of Poverty.

[44] Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

35 Years of Demonization: The Criminalization of Black Women

Click here to download the article as a PDF.

Click here to download the article as a PDF.

This article appears in the Winter 2016 issue of The Public Eye magazine.

In December 1990, when Alice Johnson lost her job, she never imagined she would end up in prison. The African-American single mother had been supporting her five children as a manager of a FedEx store in Memphis. She soon found another job, but at one-third the pay. Meanwhile, the bills mounted. When she was offered a quick way to make money—by passing phone messages about where to buy drugs—she took it. Johnson is now serving a life sentence for conspiracy to possess cocaine, attempted possession of cocaine, and money laundering.1

Between 1990 and 2000, the number of people in U.S. prisons and jails increased from 292 per 100,000 to 481 per 100,000.2 But the number of women in prison rose even more sharply, doubling over the ten-year period.

The numbers keep growing. The number of women sent to prison grew by another nearly three percent (or 2,800 people) between 2012 and 2013. The imprisonment rate for Black women is 113 of every 100,000, more than twice that of White women (who are imprisoned at a rate of 51 per 100,000). At the end of 2013, nearly one quarter (or 23,100) of the 104,134 women in state or federal prison were Black.3 In contrast, Black women make up just 13 percent of women in the United States.4 Today, approximately 206,000 women are in jails or prisons nationwide.5 Johnson, who was arrested in 1994 and charged with conspiracy to possess cocaine, attempted possession of cocaine, and money laundering, is one of those women.

In July 2015, hundreds of people marched in Minneapolis to honor Sandra Bland and protest the deaths of Black women who have died in police custody. Photo by Fibonacci Blue via Flickr.

In July 2015, hundreds of people marched in Minneapolis to honor Sandra Bland and protest the deaths of Black women who have died in police custody. Photo by Fibonacci Blue via Flickr.

Johnson’s imprisonment did not happen in a political vacuum. The same policies of mass incarceration and racial policing that have sent disproportionate numbers of Black men to prison have also hit Black women hard.6 In 1996, the year Johnson was convicted, the rate of incarceration for Black women was seven times higher than for White women. The right-wing rhetoric that fueled those policies affecting Black men also reinforced a narrative in which Black women are seen as inherently criminal, a narrative that continues to influence public perception and law enforcement today.7

In 1971, Richard M. Nixon declared a War on Drugs. In 1982, President Ronald Reagan expanded that war. But, as Michelle Alexander notes in her pivotal study of the hyper-incarceration of African Americans, The New Jim Crow, this expansion came at a time when neither media nor most members of the public were particularly concerned about drugs. Reagan’s administration launched a public relations campaign, focusing largely on crack, to build both public and legislative support for his drug war. The war was not race-neutral—images of Black people addicted to crack, whether in the form of “crack whores,” “crack dealers” or “crack babies,” were utilized to strike fear into the public and garner support for harsher laws and more punitive sentences.8

The image of Black women continues to be fueled by the right-wing narrative of Black women as welfare frauds, liars, and cheats.

In 1986, Congress passed the Anti-Drug Abuse Act, mandating a five-year sentence for a five-gram sale of crack cocaine; in contrast, the same sentence only took effect for 500 grams of powder cocaine. Although Whites and Blacks used drugs at similar rates, enforcement of the Act targeted Black people, drastically increasing the number of Black people sent to prison—in 1980, African Americans made up 12 percent of the country’s population, but 23 percent of all people arrested on drug charges. By 1990, however, they made up more than 40 percent of those arrested for drugs and over 60 percent of those convicted.9 The Act also took its toll on women, particularly Black women. Under the Act, police and prosecutors were able to arrest and charge spouses and lovers with drug trafficking “conspiracy” for everyday actions such as taking a phone message or sharing finances. This is what happened to North Carolina mother Phyllis Hardy, whose ordeal I have described elsewhere.10 In 1991, Hardy’s husband was arrested for conspiracy to import and sell cocaine. He told me that prosecutors asked him if he had ever given money to his wife. “She’s my wife. Of course I gave her money,” he told them.

Andrea Ritchie, co-author of the "Say Her Name" report speaks at the 2015 New York City #SayHerName vigil in remembrance of Black women and girls killed by the police. Photo by The All-Nite Images via Flickr.

Andrea Ritchie, co-author of the “Say Her Name” report speaks at the 2015 New York City #SayHerName vigil
in remembrance of Black women and girls killed by the police. Photo by The All-Nite Images via Flickr.

But, under the Anti-Drug Abuse Act, sharing money with a spouse—even for household expenses like groceries or the mortgage—ropes him or her into the conspiracy. Phyllis Hardy was arrested and charged with conspiracy to import and distribute cocaine as well as money laundering. Believing that justice would prevail, she went to trial. She lost and was sentenced to 30-and-a-half years in federal prison. Her husband, who accepted a plea bargain, served 15 years.

Reagan’s War on Drugs coincided with a less-trumpeted right-wing war on women. Invoking images of Black welfare mothers driving Cadillacs and having children solely to collect more taxpayer dollars, Reagan and his acolytes whipped up public furor against welfare recipients and the idea that society should support those most in need. The frenzy continued past his presidency; in 1996, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) was introduced as part of the Republican Contract with America and heavily pushed by House Speaker Newt Gingrich and other Republicans, as well as right-wing think tanks such as the American Enterprise Institute, home of Charles Murray, whose racist writings formed the foundation for welfare reform. In 1996, Clinton signed it into law. The bill, popularly known as “welfare reform,” placed a five-year lifetime limit on welfare, excluded benefits to children born to mothers already on welfare, required recipients to work after two years, and enacted a lifetime ban on welfare benefits for people with drug felonies or who had violated probation or parole.11

The demonization of Black women extended beyond welfare and, even 35 years later, continues to inform police interactions. In 2013, of all women stopped by New York City police, over 53 percent were Black although Black people make up only 27 percent of the city’s residents.12

“The image of Black women continues to be fueled by the right-wing narrative of Black women as welfare frauds, liars and cheats,” Andrea Ritchie, a Soros Justice Fellow examining police violence against women and LGBT people of color, told The Public Eye. “These images drive interactions from whether to write someone a traffic ticket or arrest them for not putting their cigarette out to what to charge someone.” Ritchie pointed to the example of Charlena Michele Cooks, a Black mother in Barstow, California, who was eight months pregnant when she was brutally arrested in January 2015. While dropping her second-grade daughter off at school, Cooks had a driving dispute with another mother. The other mother, who is White, called the police. According to his body cam footage, the officer, after listening to the White mother’s statement, said, “I don’t see a crime that’s been committed,” but offered to speak with Cooks. The officer approached Cooks and, when she refused to give her full name and began to walk away, the officer twisted her hands behind her, forced her against a fence and arrested her as she screamed in pain and fear. She was charged with resisting arrest. A court later dismissed the charge; the ACLU of Southern California confirms that Cooks did indeed have the right to refuse to give her name.13

Whenever interactions like this occur, the underlying justification demonizes Black women, noted Ritchie. “Every police interaction is informed by the perception that they’re lying, cheating and not worthy of protection.” The brutal 2015 arrest of Sandra Bland, who died in police custody in Texas following a questionable traffic stop, illustrates the way in which these ingrained perceptions can be deadly.

National Day Of Action to end State violence against Black girls and women. Photo by The All-Nite Images via Flickr

National Day Of Action to end State violence against Black girls and women. Photo by The All-Nite Images via Flickr

Even when they are not deadly, the narrative informs who police choose to target—and arrest. In the 1990s, New York City, under Mayor Rudolph Giuliani and his police commissioner Bill Bratton, instituted a policy of “stop, question and frisk,” soon shortened to “stop and frisk,” in which police stop and search people whom they perceive to be acting suspiciously. Not surprisingly, most of the stops involved people of color. In 2011, nearly 90 percent of these stops involved Black or Latina/o people.14 But stop and frisk is not limited to New York; other cities also employ the tactic and, as in New York, people of color are often the targets.

Those stopped and frisked can be arrested not only for weapons or drugs, but also for carrying legal items such as condoms. Until recently in New York, police could—and would—seize condoms as evidence of sex work. But this policy didn’t just affect people engaged in sex work. Trans and gender non-conforming people, particularly people of color, also felt the brunt in a phenomenon known as “walking while trans.”15 Nearly 60 percent of trans and gender non-conforming people of color living in Jackson Heights, one of New York City’s most diverse neighborhoods, reported being stopped by police, who profiled them as sex workers solely because of their race and gender identity. None were actually sex workers, but they were charged with prostitution-related offenses if they were carrying condoms.16 Considering that the city’s Department of Health distributes over 35 million condoms each year, the practice of using condoms as evidence seems particularly absurd. But not absurd enough to abolish the practice. In May 2014, Bratton (once again New York’s police commissioner) announced that police will no longer use condoms as evidence—unless they suspect people of sex trafficking or promotion of prostitution.17 

Nearly 60 percent of trans and gender nonconforming people of color living in Jackson Heights reported being stopped by police, who profiled them as sex workers solely because of their race and gender identity.

Undoing 35 years of demonization requires approaches on several different levels. Andrea Ritchie is the co-author of Say Her Name, a July 2015 report examining police violence against Black women and girls, which includes some examples of policy demands that address Black women’s particular experiences of policing, such as a ban on using Tasers and excessive force on pregnant women or children and the passage of the End Racial Profiling Act of 2015, which prohibits any agency from engaging in racial profiling.18 In New Orleans, years of organizing and attention to the city’s racist policing practices ended in a 2012 consent decree in which the New Orleans Police Department was ordered to implement bias-free policing.19

At the same time, the underlying narrative that promotes these policies and interactions needs to change. The popular hashtag and associated movement #BlackLivesMatter have helped challenge this script, calling attention to the racism and violence against Black people. While #BlackLivesMatter, started by three Black women, does not focus exclusively on the violence against Black men, activists and media makers made sure that the call was expanded to ensure that Black women and Black trans people were not forgotten with calls for Black Trans Lives Matter and Black Girls Matter. Activists, media makers and members of the general public need to continue challenging the stereotypes of Black women and rewrite the script so that gender and gendered violence remain integral in the struggle to transform the criminal justice system.


About the Author

Victoria Law is a freelance writer focusing on the intersections of incarceration, gender and resistance. She is also the author of Resistance Behind Bars: The Struggles of Incarcerated Women.


Endnotes

[1] Victoria Law, “Mothers Serving Long-Term Drug Sentences Call for Clemency,” Truthout, September 11, 2015, http://www.truth-out.org/news/item/32745-mothers-serving-long-term-drug-sentences-call-for-clemency.

[2] Allen J. Beck and Jennifer C. Karberg, Prisons and Jail Inmates at Midyear 2000, Bureau of Justice Statistics, Department of Justice, March 2001, 3, http://www.bjs.gov/content/pub/pdf/pjim00.pdf.

[3] E. Ann Carson, Prisoners in 2013, Bureau of Justice Statistics, U.S. Department of Justice, September 30, 2014, 9, http://www.bjs.gov/content/pub/pdf/p13.pdf.

[4] Maria Guerra, Fact Sheet: The State of African American Women in the United States, Center for American Progress, November 7, 2013, https://www.americanprogress.org/issues/race/report/2013/11/07/79165/fact-sheet-the-state-of-african-american-women-in-the-united-states/.

[5] Aleks Kajstura and Russ Immarigeon, States of Women’s Incarceration: The Global Context, Prison Policy Initiative, http://www.prisonpolicy.org/global/women/ .

[6] Department of Justice, “State and Federal Prisons Report Record Growth During Last 12 Months,” December 3, 1995, 4, http://www.bjs.gov/content/pub/pdf/pam95.pdf.

[7] This past summer, Texas district attorney called Sandra Bland “it” and re-directed the blame for Bland’s brutal arrest and subsequent death on her own behavior, stating, “It was not a model traffic stop … and it was not a model person that was stopped on a traffic stop. I think the public can make its own determinations as to the behaviors that are seen in the video.” Michael Gracezyk, “Texas Prosecutor Says Too Soon to Say How Woman Died in Cell,” Associated Press, July 21, 2015, http://bigstory.ap.org/article/00ba536ef2c24db1bb1609e9bcb6df1d/texas-officials-release-video-jail-sandra-bland-case.

[8] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010), 5.

[9] Jonathan Rothwell, “How the War on Drugs Damages Black Social Mobility,” Brookings, September 30, 2014, http://www.brookings.edu/blogs/social-mobility-memos/posts/2014/09/30-war-on-drugs-black-social-mobility-rothwell.

[10] Victoria Law, “Will Obama’s Commutation Allow Grandma Hardy and Thousands of Drug War Prisoners to Finally Go Home?” Truthout, August 20, 2014, http://www.truth-out.org/news/item/25497-will-obamas-commutation-allow-grandma-hardy-and-thousands-of-drug-war-prisoners-to-finally-go-home; Victoria Law, “Phyllis ‘Grandma’ Hardy is Home! But Over 98,000 People Remain Prisoners of the Drug War,” Truthout, April 7, 2015, http://www.truth-out.org/news/item/29973-phyllis-grandma-hardy-is-home-but-over-98-000-people-remain-prisoners-of-the-drug-war.

[11] Bryce Covert, “Clinton Touts Welfare Reform. Here’s How It Failed,” The Nation, September 6, 2012, http://www.thenation.com/blog/169788/clinton-touts-welfare-reform-heres-how-it-failed.

[12] Kimberlé Williams Crenshaw and Andrea J. Ritchie, Say Her Name: Resisting Police Brutality Against Black Women, (New York: African American Policy Forum, 2015). 7, http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/55a810d7e4b058f342f55873
/1437077719984/AAPF_SMN_Brief_full_singles.compressed.pdf
.

[13] Michael Martinez and Kyung Lah, “Police Video Shows ‘Horrifying’ Arrest of Pregnant Woman, ACLU Says,” CNN, May 29, 2015, http://www.cnn.com/2015/05/28/us/barstow-california-police-video-pregnant-woman-arrest/.

[14] New York Civil Liberties Union, Stop‐and‐Frisk 2011 Report 8 (2012). 5.

[15] People’s Law Office, “Criminalization of LGBTQ People,” n.p., n.d., http://peopleslawoffice.com/issues-and-cases/criminalization-of-glbt-people-in-the-us/.

[16] Make the Road New York, Transgressive Policing: Police Abuse of LGBTQ Communities of Color in Jackson Heights, October 2012, 4, 15, http://www.maketheroad.org/pix_reports/MRNY_Transgressive_Policing_Full_Report_10.23.12B.pdf.

[17] Emma Caterine, “Condoms as Evidence: Terrible for Sex Workers, Terrible for Public Health,” RH Reality Check, March 8, 2013, http://rhrealitycheck.org/article/2013/03/08/condoms-as-evidence-terrible-for-sex-workers-terrible-for-public-health/.

[18] Crenshaw and Ritchie, “Say Her Name: Resisting Police Brutality Against Black Women,” African American Policy Forum, July 2015, 33 (See also: Cassandra Osei, “Reports in Review,” The Public Eye, Fall 2015, 20); End Racial Profiling Act of 2015, H.R. 1933, 114th Congress (2015), https://www.congress.gov/bill/114th-congress/house-bill/1933.

[19] New Orleans Police Department, “NOPD Consent Decree,” City of New Orleans Mayor Mitchell J. Landrieu, n.d., http://www.nola.gov/nopd/nopd-consent-decree/. It should be noted that, three years later, “the pace of reform continues in many areas to be slower than desired.” Ken Daley, “Third Year in Consent Decree ‘Critical’ for New Orleans Police,” The Times-Picayune, October 5, 2015, http://www.nola.com/crime/index.ssf/2015/10/federal_monitors_warn_nopds_th.html.

U.S. Hard Right Being Bolstered by the Mainstream

On Monday, November 23, 2015, a group of Black Lives Matter protesters in Minneapolis, Minnesota were shot at—leaving five wounded. Shortly afterward, the police made four arrests, and it became clear that those allegedly involved in the shooting were influenced by the Hard Right Patriot movement. The day before the shooting, in a video that went viral on social media, two of those who were later arrested recorded themselves making racist comments and flashing a gun while driving to the #4thPrecinctShutdown, an Occupy-like encampment that had sprung up in the wake of the police shooting death of Jamar Clark.

Black Lives Matter demonstration in Minneapolis, 4th Precinct Shut Down. Photo courtesy of Fibonacci Blue via Flickr.

This most recent shooting fits into an escalating pattern of confrontation between social movements, such as Black Lives Matter, and the Right, both in terms of terror attacks and in mainstream discourse. This reality played out in Olympia, Washington in September, when neo-Nazi skinheads and White nationalists took to the streets (but were quickly driven from them) in support of the police, who faced protests after officers shot and wounded two young men accused of shoplifting alcohol. Harkening back to their heyday of the 1990s, the Racist Right is brazenly gathering in public.

Only four days after the shooting in Minneapolis, a Hard Right activist opened fire inside a Planned Parenthood in Colorado Springs, Colorado, killing three and injuring nine. Planned Parenthood, which provides free and reduced-cost medical care to poor and working people (including abortions), has already faced a series of cuts in Colorado and other states, as well as media attacks from the anti-abortion movement and the Republican establishment. The recent video from The Center for Medical Progress, which generated much of this aggression, features doctored videos of Planned Parenthood staff discussing the donation of fetal tissue for purposes of medical research. The videos falsely characterize this as the “illegal sale of baby parts,” and many believe they helped set in motion a string of arsons, protests, and attacks against clinics across the U.S. What’s more, the alleged gunman, Robert Lewis Dear, after surrendering to police, is reported to have stated “No more baby parts,” in apparent reference to the manipulated videos.

The recent shooters may be different in terms of motivations and targets, but they may also be joined by radicalization via internet as well as a social movement. It could be said that the keyboard is the new gun show.

The recent shooters may be different in terms of motivations and targets, but they may also be joined by radicalization via internet as well as a social movement. It could be said that the keyboard is the new gun show. For instance, the shooters in Minneapolis were part of —and met through—the infamous internet message board website 4chan, which they also used to organize their armed “disruption” of the BLM encampment. Launched in 2003, 4chan is an internet image sharing and message board website, that has helped to launch key players on both the Left and Right, including the “hacktivist” group Anonymous. Likewise, Robert Dear may have been driven to act by the right-wing campaign this summer that went viral due to a YouTube video, although it is unknown if he actually watched the video itself. It is important to note, as Naomi Braine pointed out in her Public Eye article “Terror Network or Lone Wolf,” those taking part in these “lone wolf” actions, like Dylann Roof in Charleston, are tied to and influenced by larger movements and aboveground groups, although they may only interact with them from afar.

Supporters at a Donald Trump rally in Birmingham, AL, kick and punch a Black Lives Matter protester to the ground. Image via screenshot.

Supporters at a Donald Trump rally in Birmingham, AL, kick and punch a Black Lives Matter protester to the ground. Image via screenshot.

But while the internet continues to be a fertile recruiting ground, segments of the Hard Right are also acting in a context where their discourse continues to push into mainstream and is magnified around Donald Trump’s campaign trail. From making heinous comments about Latinos and immigrants, telling protesters to “go back to Africa,” retweeting neo-Nazi sound-bytes, declaring that all Muslims should be barred from the U.S., to proclaiming that Black Lives Matter demonstrators should have been “roughed up,” Trump has encouraged a new generation of White nationalists—much like David Duke did in the late 1980s. It is no surprise, then, that the Minneapolis shooters were reported to have fled the scene while yelling, “Donald Trump 2016” and “Race War!” Like the shooting in Minnesota, other collective acts of violence across the U.S.— from beatings in the street to confrontations at Trump rallies—have all been given steam by “The Donald’s” campaign. This is not to mention the shot in the arm White nationalists have received thanks to Traditionalist Worker Party leader Matthew Heimbach getting invited to do media interviews on White working-class voter dissatisfaction. Indeed, at the most recent Stormfront—a popular White nationalist message board website—convention, undercover anti-racists reported lots of pro-Trump paraphernalia.

Trump is quick to distance himself from violence, while at the same time feeding off its promotion. Likewise, anti-abortion Republicans were largely silent on the Colorado slayings. In so doing, these leaders seek to obscure the connections between this “lone wolf” and the broader right-wing movement.

This is true in the Right’s backlash against the movement for Black lives and advances in LGBTQ rights, as well as in the attacks, both in legislatures and on the ground, against Planned Parenthood. This reality continues to stack up the corpses of everyday people, gives support to the ramping up of government repression, and fosters and deepens systems of oppression and exploitation.

How the Right is Co-Opting #BlackLivesMatter to Roll Back Repro Rights

The Right Wing’s success in reframing and co-opting social justice movements for the advancement of its own agenda has derailed more than one progressive campaign. With skillfully manipulative messaging, improved healthcare access and reproductive freedom have been redefined as murderous, genocidal crusades; LGBTQ people have been twisted into dangerous, perverse threats to women and children; economic justice efforts are distorted as handouts for lazy, work-averse people.

The Right’s new target? Black Lives Matter.

With the Black Lives Matter movement sparking actions, demonstrations, and conversations around the country, the Right is carefully plotting strategies to divert energy and attention away from racial justice, seeking to preserve the status quo at all costs, and—if they’re crafty enough—gain ground on their own conservative agenda.

As protesters marched and demonstrated from coast to coast following the non-indictment of Ferguson police officer Darren Wilson—the man responsible for the death of Michael Brown, an unarmed Black teenager—the Right hastily put forward alternative narratives. Among them is an emerging effort to convert the “Black Lives Matter” rallying cry into an anti-abortion campaign.

In December, the Illinois Family Institute—one of many state-based conservative “family policy councils” working to implement a right-wing social and political agenda at the state level—published a blog post entitled, “’Black Lives Matter’ … or do they?” The author, Fran Eaton (a White woman), argued that “the real threat to America’s Black community are abortionists much more than law enforcement officers.” Eaton claims that since the Roe v. Wade decision in 1973, “16 million tiny Black lives have perished in abortion clinics.”

too many aborted billboardTo back up her reframing of the Black Lives Matter movement, she turns to two of the anti-abortion camp’s favorite Black surrogates: Ryan Bomberger, co-founder of the Radiance Foundation, and Alveda King, niece of Dr. Martin Luther King, Jr. and director of African American Outreach at the anti-choice Catholic organization Priests for Life.

Bomberger’s organization is infamous for its controversial “Too Many Aborted” billboard campaigns, which began cropping up around the country in 2010. Signs proclaiming “Black Children are an Endangered Species” and “Abortion Makes Three-Fifths Human Seem Overly Generous” were placed in predominantly Black neighborhoods, making no secret of their strategy to target Black women.

bomberger graph

Infographic from the Radiance Foundation

 

As Dorothy Roberts outlined in her seminal 1998 book, Killing the Black Body, there is indeed a long and devastating history of women’s fertility and reproduction being controlled by the state, particularly among communities of color. In some cases, these attacks on reproductive freedom have been furthered not just by conservative White legislators, but also by Black spokespeople.

Sadly, this multi-pronged, insider/outsider assault continues still today, as exemplified by Bomberger and King’s efforts to further restrict access to safe and healthy abortions that are free from shame and condemnation. Increasingly, these ongoing attacks are taking shape in the form of “race and sex-selective abortion bans”—laws that would prevent healthcare providers from performing abortions if they suspect the person seeking care is doing so based on the anticipated race or sex of the fetus.

Race & Sex-Selective Abortion Bans—Stealing the Civil Rights Act

Prior to 2010, only two states banned sex-selective abortions: Illinois passed a ban in 1979, and Pennsylvania passed a similar law in 1982. Beginning in 2008, however, leaders in the anti-choice movement began mobilizing constituents behind this new tactic.

In 2008, Rep. Trent Franks (R-AZ), proposed H.R. 7016, the Susan B. Anthony Prenatal Nondiscrimination Act (PRENDA). In a press conference, Franks claimed his strategy was to simply extend standard civil rights protections, encapsulated in the 1964 Civil Rights Act, to unborn Americans. “Sex and race discrimination are already forbidden,” he said. “We took everything applicable from the 1964 Civil Rights Act and applied it to the unborn.”

Franks was joined by Alveda King and several other anti-choice spokespeople, including Steven Mosher, head of the right-wing Population Research Institute. In an article published shortly after H.R. 7016’s introduction, Mosher wrote:

I propose that we—the pro-life movement—adopt as our next goal the banning of sex- and race-selective abortion. By formally protecting all female fetuses from abortion on the ground of their sex, we would plant in the law the proposition that the developing child is a being whose claims on us should not depend on their sex.

This sense of contradiction will be further heightened among radical feminists, the shock troops of the abortion movement. They may believe that the right to abortion is fundamental to women’s emancipation, but many will recoil at the thought of aborting their unborn sisters. How can they, who so oppose patriarchy and discrimination on the basis of sex, consent to [the] ultimate form of patriarchy and discrimination, namely, the elimination of baby girls solely on account of their sex? Many, it is safe to predict, will be silent, while others will raise their voices, but with less conviction.

While the pro-aborts are stammering and stuttering, we pro-lifers will be advancing new moral and logical arguments against the exercise of the “right” to an abortion solely on the grounds of sex or race. For those who are immune to moral arguments, we can also use the examples of China and India, where sex-selective abortion is creating enormous societal problems. The debate over sex- and race-selective abortion will also help to focus the public’s attention on how unregulated the abortion industry is. In these and other ways, the debate over this legislation will not subtract from, but add to, the larger goal of reversing Roe v. Wade and, ultimately, passing a Human Life Amendment. – “A New Front in the Abortion Wars

Franks, considered one of the most conservative members of Congress, has persisted in his efforts, reintroducing the bill in 2008, ’09, ’11, ’12, and ’13. In 2013, Franks also proposed the Pain-Capable Unborn Child Protection Act, which would ban abortions after 20 weeks based on the medically-disputed theory that fetuses can feel pain at that point. That bill, which still lacked sufficient support when it was re-introduced in January of this year, will likely be back up for consideration soon.

Franks’ home state of Arizona is the only state to have passed a race-selective abortion ban. This legislation is currently being contested by the ACLU on behalf of the National Asian Pacific American Women’s Forum (NAPAWF) and the National Association for the Advancement of Colored People (NAACP).

As NAPAWF explains:

These bills are part of a deceptive attempt to slip anti-choice measures under the radar. They claim to promote racial and gender equity, when in reality they aim to chip away at reproductive rights by exploiting negative stereotypes about women of color. Using the language of equality, anti-choice conservatives hope to foster nontraditional alliances with true advocates for women and people of color, in order to gain broad support for their agenda.

As in Illinois, Arizona has its own family policy organization, the Center for Arizona Policy (CAP). CAP was originally known as the Arizona Family Research Institute, and from 1988-1993, Franks served as the organization’s executive director. Now one of the most influential political groups in the state, CAP is a member of CitizenLink, a nationwide network of right-wing state level lobbying groups and the policy arm of Focus on the Family. CitizenLink currently lists “fully associated” groups in 38 states.

With the exception of Oklahoma, every other state to have successfully passed sex-selective abortion bans thus far (Arizona, Kansas, North Dakota, South Dakota, North Carolina, and Pennsylvania) has one of these CitizenLink-affiliated groups working hard to derail movements toward social justice and advance the Right’s fundamentalist Christian agenda.

The Right’s media-messaging machine is well resourced and ready to co-opt and distort all struggles for social justice, including the Black Lives Matter movement. With high-profile Black surrogates like Bomberger and King out in front, and national support from organizations like Focus on the Family, CitizenLink, Radiance Foundation, and Americans United for Life, the anti-abortion movement is gaining ground—already this year, state lawmakers have introduced more than 300 bills designed to chip away at civil liberties and reproductive freedom.

It can be difficult to translate truth from the Right’s manipulative reframing, but Monica Simpson, executive director of SisterSong, offers an easy litmus test: “If those who oppose abortion truly believed that black lives matter, they would be standing beside reproductive justice activists, and join our unequivocal assertion that the right to choose an abortion is just as important as the right to have children and parent them in healthy, thriving communities. Equality and justice can never be rooted in stigma, shaming, or violence, and it’s time the anti-choice movement recognized that.”

5 Right-Wing Media Narratives Attacking the ‘Black Lives Matter’ Movement

Black Lives Matter protests have electrified the country—mobilizing a wide and multiracial grassroots movement challenging the killing of often unarmed Black Americans by police and the pervasive, systemic racism that continues to fundamentally shape American society. This marks the first time since the 1992 Los Angeles riots—ignited by the acquittal of four LAPD officers after they were videotaped beating Black motorist Rodney King—that the United States has seen a national movement challenging the most lethal outcropping of the many-headed hydra of structural racism: local police departments.

black lives matter

The Right has responded with its usual bag of tricks, as it tries to ensure that the U.S. racial hierarchy remains intact.

Since August of this year, Ferguson, Missouri’s African-American community has been in a state of upheaval over the killing of 18-year-old Michael Brown by White officer Darren Wilson—just the latest of numerous killings of unarmed African Americans by the police. But despite the broad media coverage, most protest efforts remained largely localized in Ferguson for several months afterwards.

Yet on November 24, when the grand jury announced its decision not to indict Officer Wilson, a national mass movement broke out almost overnight. The subsequent refusal, announced on December 3, of a New York City grand jury to indict an officer for the murder of another unarmed Black man, Eric Garner—who was choked to death by police while onlookers filmed the whole scene—together resulted in massive marches and demonstrations around the country, from Oakland to Boston, with tens of thousands of people marching in New York City alone on December 13.

But how is the Right responding to this outpouring of opposition to these clear-cut illustrations of structural oppression? The Right’s approaches include:

  1. Trying to make the conversation about anything but race;
  2. blaming the individuals themselves or African Americans as a group;
  3. exploiting racial fears;
  4. denying that systemic racism exists; and
  5. attempting to directly intimidate protesters.

Over the past 30 years, PRA has documented how these techniques are often part of the right-wing toolbox. By using these approaches, the Right props up the current system of profound racial disparities by blaming minority groups for their own oppression, and further fueling resentment against them.

The most popular right-wing response to the Black Lives Matter movement is to try to sidetrack the conversation into discussions of—literally—anything other than race. The most common tactic (and found not just on the Right), is to change the movement’s slogan “Black Lives Matter” into “All Lives Matter.” The change alters the focus from the police killings of African Americans, a pillar of structural racism, into a more general commentary on police brutality. While some argue this will broaden the appeal of the movement, the effect is to once again steer dialogue to “anything but race.”

Other examples include that of the National Review’s Rich Lowry, who took the opportunity in August to criticize the Ferguson police—not for committing horrific acts of state-sanctioned violence, but rather for not doing enough to stop the looting.

On Twitter, Fox News host Todd Starnes attacked President Obama for sending condolences to Michael Brown’s family, and not Darren Wilson’s.

Laurie Higgins, writing for the Illinois Family Institute, lays blame for the unrest on high school teachers, and their inclusion of liberal and left-wing authors such as Howard Zinn and Eric Foner in their curricula.

Conservative doctor and author, infamous racial revisionist, and possible Republican 2016 presidential hopeful Dr. Ben Carson blamed the killings of African-American men by police on a lack of subservience, which, according to Carson, is a by-product of feminism. Carson cites a lack of father figures, who supposedly teach men to relate to authority properly, and which, in turn, “had to do with the women’s lib movement.”

Conservative talk show host Mark Levin also blamed Brown for his own death. Levin says the national Black Lives Matter movement is the fault of the “reckless liberal media,” “the lawless administration (especially Eric Holder),” “phony civil rights demagogues, race-baiting politicians, and radical hate groups.” Sounding like a cross between Bull Connor and George Wallace, Levin goes on to say that “What we are witnessing now is the left’s war on the civil society. It’s time to speak out in defense of law enforcement and others trying to protect the community and uphold the rule of law.”

In December, Kentucky Senator Rand Paul blamed high cigarette taxes for the death of Eric Garner (who was stopped by police for selling loose cigarettes). This blatant deflection from the issues at hand stands at odds with his past statements about mass incarceration.

Former New York City mayor Rudy Giuliani also trotted out decades-old racist tropes, including the “the family situation in black neighborhoods,” as the core of the problem. He also cited the lack of respect for police officers, “disproportionate rates of crime in the black community,” and even teachers’ unions—for rejecting the neoliberal charter school system.

Fox News senior correspondent Geraldo Rivera agreed that “too many young black men are being killed unnecessarily in encounters with police”—but then engaged in a bait-and-switch by claiming the real problem was “family dysfunction” among people of color. He attacked LeBron James for wearing a shirt with the words “I Can’t Breathe” and said that, instead, the slogan should be “We’re The Problem.”

For years, right-wing conspiracist Alex Jones has claimed that Obama has purposefully sought social disruptions as a pretext to seize privately held weapons and instigate a dictatorship. Jones is now peddling a particularly noxious variant of his conspiracy theory, saying the protests will lead to “the attempted takedown of the Republic” and an “attempt to start a civil war, playing the people off against the police and people off against each other racially.” Crooks and Liars’ David Neiwert says Jones and company “have whipped themselves into a frenzy over the prospect of a nationwide ‘race war,’ though it is difficult to tell whether they fear such a prospect or are actively hoping for it.”

The Heritage Foundation’s Hans von Spakovsky wrote a classic right-wing response. He simply denied that there is any racism in the justice system; attacked Obama for refusing to acknowledge this; claimed “the anger on the street in Ferguson was being fueled by false stories that had no real basis in fact”; blamed Brown for his own death; and, finally, blamed Obama and Attorney General Eric Holder for damaging the justice system and deepening racial divisions.

In an interview with the National Urban League’s president Marc Morial, Fox News’ Megyn Kelly covered similar territory. Kelly first claimed that the grand jury results were the product of media attention, then repeatedly asserted that there was no evidence of racism in any of the recent police shootings of African Americans, and ended by saying the focus of attention should be on so-called “Black-on-Black” crime.

There have also been multiple attempts to intimidate those speaking out against the killings of Michael Brown and Eric Garner.

Ferguson’s Flood Christian Church, where Michael Brown Sr. attended, was burned down in November. The pastor—who was active in calling for justice in Brown’s killing—said he received 71 death threats before the arson.

The Oath Keepers also came to Ferguson. The group recruits current and former members of the military and law enforcement who swear to defend the Constitution by disobeying federal orders which they believe violate it, and are awash in right-wing conspiracy theories. Their leaders claimed to be there to protect businesses from looting. What their presence showed, however, was that a majority-White paramilitary group was able to brandish high-powered guns at protesters. Ferguson police initially forced them out as an unlicensed security company, but they returned the next day after arguing they were not operating in a commercial capacity. Having previously appeared at Occupy LA and the Bundy Ranch standoff, coming to Ferguson shows not only the Oath Keepers continuing penchant for publicity stunts, but marks another stage in their transformation into what is looking like a full-blown paramilitary.

Similar to Jones’s conspiracy theory, Oath Keeper founder Stewart Rhodes said the government intentionally refused to suppress looting in Ferguson as part of a larger attempt “to justify a ratcheting up of police state power, and it will not end until all of our children have the boot of a totalitarian police state on the back of their necks.”

The NAACP held a seven-day march, starting in late November, from Ferguson to Jefferson City, Missouri; but in the town of Rosebud, the marchers were met by a crowd of 200. “A display of fried chicken, a melon, and a beer bottle had been placed in the street. A Confederate flag flew. Counter-protesters shouted racial epithets.” Even more ominous, the back window of one of the NAACP’s buses was shot out.

Last, in three different cities, cars plowed into the demonstrations. In Minneapolis, a teenager was taken to the hospital; in St. Louis, a driver also pulled a gun; and in Portland, Oregon, the police did not charge the driver—but did issue a ticket to the protestor whose foot was run over!

As various sectors of the U.S. Right continue their desperate attempts to convince White America that there is no racial divide in the country—and furthermore that the massive protests across the country are little more than the work of race-baiters deceiving local Black communities— it is critical that all social justice-minded individuals counter these damaging messages.

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