Book notes: Beyond Deportation

— Shoba Sivaprasad Wadhia

“Prosecutorial discretion” refers to a decision made by an agency (in this case, the Department of Homeland Security) about whether or not to enforce the immigration laws against a person or group of persons. A prosecutorial discretion grant is significant because it functions as a temporary form of protection from deportation even though the immigration “status” conferred is tenuous.

wadhia frontA prosecutorial discretion grant is also important to the agency because it allows the agency to use its limited resources to pursue true enforcement priorities and also injects compassion into an otherwise complex and broken immigration ­system. Beyond Deportation reveals just how much and for how long prosecutorial discretion in immigration law has been grounded on compassion.

The visibility of prosecutorial discretion has increased in such dramatic ways that it becomes hard to imagine a time when prosecutorial discretion fell outside the popular immigration vocabulary. Its popularity peaked in June 2012 when President Barack Obama announced a policy termed DACA, or Deferred Action for Childhood Arrivals. DACA is a form of prosecutorial discretion in immigration law and has allowed thousands of young people to work, study, and drive in the United States with dignity and without the constant fear of arrest and possible deportation.

Prosecutorial discretion became even more popular after November 20, 2014 when President Obama announced a series of executive actions on immi­gration. These actions include an expansion of the DACA program and the establishment of a new deferred action program for qualifying parents of U.S. citizens and lawful permanent residents in cases where the parents have resided in the United States for at least five years. These most recent deferred action programs are on hold because of litigation by 25 states and the state of Texas against the federal government challenging the legality of these programs. Along with these “on-hold” deferred action programs, the Administration published a new priorities memo entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.” The priorities memo is operational today and in six pages attempts to spell out the Administration’s priorities for removal and a refined prosecutorial discretion policy.

One of the chapters in Beyond Deportation discusses the immigration case of John Lennon and the efforts undertaken by his attorney, Leon Wildes, to encourage the immigra­tion agency to publish its policies about prosecutorial discretion. The Lennon case is significant because it triggered the publication of the immigration agency’s first guidance on “deferred action,” a form of prosecutorial discretion that has been used as a remedy for individu­als facing compelling circumstances for many years and was showcased most recently with the President’s executive actions. The book offers context to this case by providing a detailed history of “deferred action” and examples of how it has been applied to both individuals and special populations, such as vic­tims of domestic violence, sexual assault, and other crimes. The book scrutinizes thousands of deferred action cases and identifies a historical and humanitarian pattern for the types of cases that are processed and granted deferred action. In the last fifty years, people have received deferred action for largely humanitarian reasons, including the following attributes: advanced or tender age; long term presence in the United States; serious medical condition, or a primary caregiver to a person with a serious medical condition; and family members who are U.S. citizens.

Much of the deferred action data analyzed in Beyond Deportation was obtained through the Freedom of Information Act, or FOIA. In the early years of my FOIA adventures, the data was in some cases disorganized, illegible and elusive. Even obtaining illegible data was remarkably exhausting and sometimes involved multiple communications with FOIA officers, government attorneys and the DHS’s own ombudsman. But the challenge was not limited to the shield held by the agency over the information itself or questions to myself about whether practitioners and scholars should have to file a FOIA to obtain basic information on topics such as ‘how to file a deferred action request.’ The challenges were more complex because some of the data I sought was simply not tracked by the agency. As one example and as a result of a FOIA lawsuit with ICE over deferred action cases, ICE confirmed that it did not track deferred action cases before 2012.

My own experiences in seeking and sorting data inform the book’s discussion about transparency. Transparency in prosecutorial discretion mat­ters because it improves the possibility that justice will be served for people whose roots and presence are in United States. Transparency also promotes other administrative law values like consistency, efficiency and public acceptability. I commend DHS for advancing these values through DACA—by creating a program that is trans­parent and aimed at protecting young people who satisfy the program’s core elements and, in these modern times, reflect the program’s humanitarian roots.

Beyond Deportation closes with praise for DACA but is replete with recommendations to the general deferred action program, which continues to lack form, specific criteria or even basic instructions on how to apply. As to the broader prosecutorial discretion policy, the bookcalls on DHS to look at the whole person when making prosecutorial discretion decisions. DHS memoranda on prosecutorial discretion suggest that no one single factor is dispositive to a prosecutorial discretion decision. However, the book’s case profiles of those deported—and anecdotes from immigration advocates and members of Congress about the impact of these deportations on families—raise important concerns to the contrary.

Whether or not prosecutorial discretion has earned visibility for political reasons, understanding the history of prosecutorial discretion and the important role it plays in U.S. immigration law is essential. My own preoccupation with prosecutorial discretion began during my time as law student clerk and later attorney at Maggio Kattar P.C. I worked on a wide range of immigration cases, but the most life-changing cases involved those individuals whose only prayer was prosecutorial discretion. Following the attacks of September 11, 2001, I worked for several years as a legislative lawyer in front of the “political” branches, advocates, and affected communities. In the decade after 9/11, agency officials and policymakers were loath to openly discuss “prosecutorial discretion.” For the last seven years, I have lived in central Pennsylvania writing largely about the role of discretion, teaching immigration, and directing the Center for Immigrants’ Rights Clinic. This professional background combined my personal life experience as a child of immigrants raised in the U.S. with tremendous opportunity, a wife, and mother set the landscape for Beyond Deportation. I am honored to have had the opportunity to write this book and to share some of its origins here.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar, law professor, and director of the Center for Immigrants’ Rights at Penn State Law. She is the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015).

To eradicate health care disparities, the Supreme Court needs enforcement

—Dayna Bowen Matthew

matthewIn the long-awaited King v. Burwell ruling last month, the Supreme Court took a major step forward in the fight to eradicate the racial and ethnic health disparities that result in the loss of over 83,000 black and brown lives in America each year. But just as the Court’s groundbreaking Brown v. Board of Education decision was not enough to guarantee equal educational opportunity for minorities in 1959, the Supreme Court’s ruling alone cannot ensure equality in American health care today.

King v. Burwell hinged on the decision to uphold tax subsidies for those who purchased coverage through the Affordable Care Act (ACA).  By affirming the constitutionality of the Affordable Care Act’s tax credits for individuals with household incomes between 100% and 400% of the federal poverty line, the Court’s ruling preserved the economic support that many low income families (by some estimates, over 26 million Americans) rely on to buy health insurance and access health care.

Beyond preserving the Act’s economic support, King v. Burwell also protected the Affordable Care Act’s nondiscrimination provisions. Section 1557 of the ACA is the first-ever civil rights provision to specifically prohibit discrimination in the health care industry. This statute could represent a turning point—a veritable Gettysburg—in the fight against racial and ethnic health disparities. But only if the Department of Health and Human Services (DHHS) makes full use of it.

Section 1557 breathes new life into Title VI of the Civil Rights Act and could be enforced to prohibit discrimination in health care based on race, color, or national origin. Thus far, the DHHS has applied Section 1557 successfully to combat sex discrimination in health care—important in its use to protect transgender patients, and ensure that providers treat men and women equitably in the context of hospital emergency departments. DHHS has also employed Section 1557 to win a number of significant agreements requiring providers across the country to ensure language access for persons with limited English proficiency. But HHS can, and must, go further.

The Department of Health and Human Services must use Section 1557 to challenge the well-documented discriminatory treatment practices that deny minority patients access to medical care for heart disease, diabetes, cancer, and a wide range of other illnesses. Section 1557 has yet to be leveraged to curb rampant discriminatory patient admission and transfer practices; differential pricing and prescribing of specialty drugs used to treat chronic diseases that disproportionately affect minority patients; gross under-representation of minorities in research clinical trials; or the shocking lack of diversity in the medical workforce, all of which are persistent contributors to disparate health outcomes for racial and ethnic minorities.

The deadly, disparate impact of these and other discriminatory practices can and should be the focus of new investigations and enforcement activities. Only then will we ensure an end to the legacy of inequality in America’s health care system.

Dayna Bowen Matthew is Professor at University of Colorado Law School and the Colorado School of Public Health. She serves on the faculty of the University of Colorado Center for Bioethics and Humanities, and she is co-founder of the Colorado Health Equity Project, a medical legal partnership whose mission is to remove barriers to good health for low-income clients. She is the author of Just Medicine: A Cure for Racial Inequality in American Health Care (NYU Press, 2015).

Obama and the N-word

—Andra Gillespie

The president said the N-word, and it became a top news story.

Now, it wasn’t the first time a president said the word — recordings exist in which Lyndon Johnson and Richard Nixon use the term artfully and prolifically.

However, it was the first time in recent memory that we know that a president used the term and meant to be heard saying it publicly. And, of course, it is not lost on audiences that said president is black.

Since I am someone who studies how black politicians born after 1960 advocate for African American interests, this story definitely piqued my interest.

What does it mean for any president, much less a black one who used race-neutral campaign tactics, to use such a word?

And is our attention on this story a distraction, especially in light of real racial issues, like police brutality and the recent hate crime in Charleston?

A proper use of language

I think people are making a bigger deal about President Obama’s use of this word than is necessary.

Yes, it is rarely heard in polite company. But if one has to use the word, the way in which President Obama deployed it was entirely proper.

He was not using it as part of his Chris Rock or Richard Pryor impression. He was not calling out any person or group of people. He used the term in the context of talking about people who say that word.

And frankly, by using the actual word instead of resorting to the contrivance of saying “the N-word,” he was rhetorically effective.

The problem is our collective American tendency to be superficial.

When President Obama invoked the N-word, he was making an important point about structural racism and our moral responsibility to be vigilant against all remaining forms of racial discrimination.

He rightly pointed out that some people think that refraining from the use of racial slurs is the sum of eliminating racism.

He rightfully observed that removing those words from one’s vocabulary is but a small part of promoting racial equality.

Yes, we should modify our language to be respectful of all people, but one can racially profile, deny jobs, housing and equal pay, and provide substandard schooling to minorities without calling them a racial slur. Frankly, these things are materially more important.

In his own way, President Obama was trying to shock Americans into thinking more critically about racial issues.

Starting a conversation about race

There is a tendency in this country to avoid serious conversations about race.

We’d rather relegate racism to the 1950s or contend that it is a province of backwards southerners.

Then, when we are confronted with the facts of continuing inequality — like the fact that in New York, black and Latino youth were more likely to be stopped and frisked by the police without cause or that last year, the Pew Research Center found that median white net worth was 13 times the median net worth of blacks — we look for every other possible explanation and refuse to confront the ways that racism explains a lot of the disparity.

Americans’ tendency to not address an obvious cause of so much inequality and strife dooms us to repeat the same cycle of racial conflict and even violence over and over again.

Some people might argue that by resurrecting such a hurtful word, President Obama was creating another smokescreen for racial issues.

Instead of talking about healing Charleston, for instance, news programs are devoting airtime to deconstructing the president’s use of this word.

Just one of the many media dissections of the president’s language.

Hopefully, though, the president’s deployment of this term (and his larger argument for having deeper discussions about how to reduce racial inequality) will sink in because of the shock of having him speak so bluntly about the issue.

If by next week, we are talking about actual structural inequality and not about the fact that President Obama said the N-word (to be clear, the current debate about the Confederate flag is an important one but a symbolic issue), then perhaps we can give him credit for having started a meaningful dialogue about race.

Andra Gillespie is Associate Professor of Political Science at Emory University and author of The New Black Politician: Cory Booker, Newark, and Post-Racial America (NYU Press, 2012).

[This article was originally published on The Conversation. Read the original article.]

Community organizing to end the school-to-jail track

—Ben Kirshner and Ricardo Martinez

The Black Lives Matter movement has galvanized people throughout the US to speak up about systemic racism and the devastating impact of mass incarceration on communities of color. Civil disobedience and mass protest since Ferguson have generated needed media attention to the persistence of American racism. What the national media often overlooks, however, has been the last decade of tireless organizing by students, parents, and community organizers to dismantle the school-to-jail track inside K-12 schools.

PJU-report2015According to the Advancement Project, the school-to-jail track refers to a system in which “out-of-school suspensions, expulsions, and school-based arrests are increasingly used to deal with student misbehavior, especially for minor incidents, and huge numbers of children and youth are pushed out of school and into the juvenile and criminal justice systems.” This system became the new normal in the mid-1990s as zero tolerance school policies spread throughout the United States. The impact landed disproportionately on youth of color, mostly African American and Latino. A report by the Annie E. Casey Foundation, for example, found that African American youth were six times and Latino youth three times more likely than White youth to be incarcerated for the same offenses.

Padres & Jóvenes Unidos (PJU), a multigenerational and multiracial community organizing group based in the southwest side of Denver, Colorado, became involved in this issue when they saw their membership facing increased criminalization in schools. Since launching its End the School-to-Jail Track campaign in 2005, PJU has seen several of its goals met, including revisions to the Denver Public Schools disciplinary code, passage of a Colorado state law about school safety, and new agreements between police and school districts reducing police presence. New research carried out by PJU is a resource to hold state policymakers accountable for proper implementation. Young people of color have worked on the front lines of this campaign in various capacities—tackling problem analysis, formulating strategy, recruiting members, collecting data, speaking at public events, and communicating with media. The intergenerational structure of Padres & Jóvenes Unidos creates a space where middle and high school students often work side-by-side with young adults and veteran organizers to prepare for meetings and clarify strategy.

PJU’s impact is not limited to its policy achievements, but also in what it means for civic renewal and grassroots democracy. In a social and political context where the participation of regular people—not specialists or lobbyists—in public policy-making is rare, and youth participation is even rarer, the End the School-to-Jail Track campaign offers a bright exception. Students’ experience of engaging in high-stakes encounters with policy makers, including praising them when called for and voicing criticism when necessary, contributes to a culture shift, even if incremental, in which young people are taken seriously in the public square.

2015 has been a year of increased conversation about racial discrimination in policing and the courts. In a development that would not have been possible five years ago, presidential candidates from both major parties are calling for an end to mass incarceration. As the US tries to make collective progress on this issue, it will be important to also address how schools educate and discipline youth. This means not just doing away with racist practices but creating new systems to take their place, such as restorative justice and other forms of discipline that foster healthy relationships and a sense of community in schools. This slow and steady work of institution-building is most likely to have lasting effects if led by groups such as PJU, which are made up of students and parents from the communities that experience the impact of racial profiling in their everyday lives.

Ben Kirshner is Associate Professor of Education at the University of Colorado Boulder and author of Youth Activism in an Era of Education Inequality (NYU Press, 2015).

Ricardo Martinez is Co-Executive Director of Padres & Jóvenes Unidos.

Race, ethnicity, and policing

Last year, the killings of unarmed black men by white police officers—the shooting of Michael Brown in Ferguson, Missouri and the chokehold death of Eric Garner in New York City—sparked massive protests and a politically-charged debate on race, policing, and the use of force that continues across the country today.

Here at NYU Press, we rounded up a few experts on the topic, including co-editors Stephen K. Rice and Michael D. White and contributors Amanda Geller, Matthew Hickman, Robert Kane, William Parkin, and Ronald Weitzer of Race, Ethnicity, and Policing: New and Essential Readings (NYU Press, 2010).

race

Hands up, don’t shoot

One of the responses to the recent police-involved killings of unarmed black men has been a call for police departments to diversify. If police forces were more racially diverse, do you think this would alleviate tensions between police and communities?

MICHAEL WHITE: Racial diversity in a police department is important. The Commission on Accreditation of Law Enforcement Agencies (CALEA) recommends that a police department be representative of the community it serves. On conceptual and perceptual levels, the arguments favoring representativeness are persuasive. Representativeness can demonstrate to a minority community that their police department cares about their needs, interests and well-being. Perception matters a great deal in this regard. The conceptual arguments are equally compelling. Presumably, minority officers will have a better understanding of the cultural norms and beliefs of the residents in a minority neighborhood. Presumably, citizens will feel better about police officers who look and think like them; and who have an understanding of the issues in their community. Presumably, minority officers will be better able to manage difficult encounters with citizens of their own race, because of their more intimate understanding of the background, history and experiences of the people in those minority neighborhoods who may require police service. Though the empirical evidence supporting these perceptual and conceptual arguments is mixed, police departments should be racially and ethnically diverse.

AMANDA GELLER: Diversity among police officers can certainly help improve community relationships on some fronts – resolving linguistic challenges in immigrant communities, for example. To the extent that officers have personal ties to the communities they police, that can also help to establish and reinforce community trust. But diversity alone won’t alleviate tensions if the officers are behaving in ways that the community finds illegitimate. In order to alleviate police-community tensions, community members will need to believe that the police will deal with them in a constitutional way, and treat them with respect.

RONALD WEITZER: Racial diversification of police departments is endorsed by the vast majority of Americans. Some departments have made substantial progress in diversification, but many others are out of sync with the local population.Officers of different racial backgrounds generally behave similarly when they interact with members of the public. They are trained similarly and differ little in performing their duties. But because diversification is popular with the public, it can have intangible, symbolic benefits: helping to build trust and confidence in the police. A police department that reflects the composition of the local population can enhance its reputation and status among residents. A diverse police force can also help to decrease the sense that people are being stopped and questioned solely because of their race. In a majority-black city like Ferguson, where 50 of the 53 officers are white, it is not surprising that African Americans who are stopped might feel like they have been racially profiled.

ROBERT KANE: Diversity is crucial to achieve a well functioning police department. Indeed, as police departments diversify, they tend to become better “behaved” (that is, organizational rates of misconduct decline). To reap the full benefits of diversity, however, police agencies must open all ranks (e.g., detective, supervisory, command, administrative) to minority officers, so that minority officer influence doesn’t just come from the bottom-up, but also from the top-down in the form of policies, practices, and procedures. This shift in organizational culture can only occur if minority officers advance beyond line level ranks.

Amid the multitude of public protests across the country, what do you think is the appropriate role of the media? 

STEPHEN RICE: I’m feeling somewhat optimistic about how well the media’s been drawing on empirical evidence in framing their stories. Sure, there are still a multitude of media outlets that sing the ‘song of sexy’ anecdote, but there are also outlets that attempt to explain crime and criminal justice in serious ways. For example, in recent months, WNYC’s John Hockenberry has invited scholars to speak on a wide range of topics surrounding the issue, including Dennis Rosenbaum on police oversight and accountability, Jon Shane on police organizational culture, varied compelling experts on Ferguson, and George Kelling on broken windows. The next step will be to see how well practitioners such as police leadership work to better integrate empirical evidence into their operations. When corporate America came to realize that evangelizing products and services were key differentiators, they hired CEOs (Chief Evangelist Officers). Why not consider evangelism marketing in police departments by senior-level leaders whose principal task it is to explain how operations are informed by what we know, empirically, about crime and place, community policing, police legitimacy, and competing models of officer engagement?

WILLIAM PARKIN: One can talk about responsible journalism and its role in reporting on and framing the public protests. However, I prefer to put the onus on the public. The media, like most businesses, is driven by the need to supply a product that their audience will consume. It should be of no surprise, then, when media outlets produce sensationalized, polemic pieces that superficially discuss these issues. They present easy-to-understand, black-and-white interpretations of the perspectives of those who support or oppose the viewpoints of the protestors and law enforcement. These stories cater to their typical audience. There are, however, media outlets that provide thoughtful, balanced reporting that attempt to dissect the complicated issues that have brought the country to where it is, in relation to law enforcement, accountability, and the use of force. Instead of discussing the appropriate role of the media, I encourage the public to understand their role and to consume media that attempts to find a solution, not sensationalize the problem.

How would you propose police go about changing their image to that of an effective and legitimate agency of authority?

AMANDA GELLER: Public perceptions of the police are largely shaped by personal experience, and what’s known as “vicarious” experience – the experiences of friends and family, and what people witness in their communities. We also know that this legal socialization is shaped not only by whether people have been stopped by the police (or witness the stops of others in their communities), but also by what happens in these encounters. If people feel like they’ve been treated fairly – that they were stopped for a legitimate reason, treated with respect, given a chance to explain themselves – and if they feel that decisions were made through just procedures, these types of encounters can help to restore a sense of police legitimacy among community members.

To ensure accountability and transparency, how can police corruption be monitored or prevented?

MATTHEW HICKMAN: There are several levels of monitoring that need to be considered. First, we expect police departments themselves to provide some degree of internal oversight. Over time, there has been a steady trend toward emphasizing external oversight bodies as a compliment to internal review functions. There are many different models of civilian oversight, but all recognize that a greater role of civilians in oversight is fundamentally democratic and seeks to ensure some level of responsiveness to community concerns. Most important is the vigilance of community groups and organizations, such as local chapters of the American Civil Liberties Union. When all else fails, the U.S. Department of Justice has authority to pursue criminal action against officers and civil litigation against police departments that evidence behavior infringing on constitutional rights.

Given the attacks in Paris at Charlie Hebdo and the Hyper Cacher kosher market, some have argued that ethnic and faith-based profiling will rise in Europe and/or the United States. How do you feel we should frame profiling in a broader, global context?

STEPHEN RICE: No matter how strenuously one might feel that differential attention is warranted in neighborhoods or airports, a simple fact remains: profiling is fraught with error (Type 1 error, or false positives), a condition which fundamentally undermines public trust and its willingness to impart authorities with the power to exercise discretion. When one speaks of Muslim Americans—a group estimated at 2.5 million nationwide—perceptions of profiling is very serious business. Judgments people make about the fairness of their experiences condition views regarding the legitimacy of authority, and these views shape compliance with the law. In Europe, future perceived attacks on civil rights under the banner of assimilation (e.g., banning of the hijab) may come to be framed concomitant with a “war on terror,” hence as structured anti-Muslim discrimination. There is a critical relationship between interactions with agents of social control, the emotions that can manifest as a result of these interactions (e.g., anger, rage, humiliation), and an individual’s willingness to accept the legitimacy of authority.

WILLIAM PARKIN: As humans, we are forced to generalize, stereotype and make assumptions about people and places based on limited information. Most of us have few, if any, meaningful interactions on a daily basis with people of different races, ethnicities, cultures or religions. Therefore, when profiling based on race or religion is presented as an option for combating crime or terrorism, it seems like a practical solution to the majority (i.e., those not being profiled). A deeper analysis of the issue, however, leads to questions around whether profiling is a fair application of justice: Does it undermine the legitimacy of the criminal justice system? Could it actually alienate—or increase the risk presented by—these profiled groups? Does it even work? In many ways, it is like looking for a needle in a haystack where, to you, every piece of hay also looks like a needle. Law enforcement would be better served, both from an ethical and practical perspective, by implementing policies that encourage hiring minority candidates and strengthening and increasing positive dialogue with minority communities. Just as law enforcement officers should be judged by their individual behavior, not profiled because of the actions of a few, so should the public that they serve.

Some members of the public feel strongly that stop-question-and-frisk is an appropriate strategy for policing in the United States.  What are your opinions on this approach?  

ROBERT KANE: The original intent of “stop and frisk” was to allow police officers to pat-down the outer clothing of a suspect for weapons. The major problems with using stop-and-frisk as a crime detection strategy are, (1) officers usually don’t find contraband or weapons, and (2) stop-and-frisks are generally concentrated in the parts of town (or city) characterized by racially-concentrated structural disadvantage. Thus, the crime-reduction benefits seem greatly outweighed by the social costs: Mothers, aunts, grandmothers, and sisters grow tired of watching their men and boys being “put against the wall” whenever they leave their dwellings. As a consequence, aggressive stop-and-frisk strategies tend to erode public trust in the police, which ultimately leads to a lack of legitimacy. In the end, police departments would do themselves a lot of good if they simply remembered: A little coercion goes a long way; and in the most disenfranchised communities, too much coercion can backfire.

Do “body cams” worn by police officers offer a solution to ending police misconduct?

MICHAEL WHITE: Police officer body-worn cameras (BWCs) are not a silver bullet. But the technology can serve as an important tool in the larger package of accountability mechanisms that a department can put in place. Relatedly, the technology may serve as a solution to the split-second syndrome. Police-citizen encounters are transactional events, with each participant making decisions and responding to the decisions of the other participant. As a result, use of force by a police officer is the culmination of a series of earlier actions and reactions. However, review of force incidents traditionally ignores earlier stages of an encounter and focuses entirely on the final-frame decision. James Fyfe called this the split-second syndrome, and he argued that this narrow focus excuses unnecessary violence resulting from poor decisions made by officers at earlier stages of the encounter. BWCs represent an opportunity to overcome the split-second syndrome because the technology allows for a full review of all decisions made by the officer during an encounter, from start to finish.

MATTHEW HICKMAN: It’s still too early to tell. Many scholars and practitioners are referring to the Rialto study, which provided some of the first strong evidence about the positive benefits of body cameras, and there are studies going on in other cities, such as Phoenix and Los Angeles. But we need to be patient and wait for the evidence to accumulate from these studies before we start subsidizing the purchase of body cameras and changing policies. Recall what happened with the Minneapolis Domestic Violence Experiment: a lot of media attention and proselytizing about the deterrent effects of arrest, and then we started to see widespread policy changes toward mandatory arrest. Five subsequent replications of the Minneapolis DV experiment in other cities yielded a relatively mixed bag of results, with arrest having varied and weaker effects than in Minneapolis. Subsequent reanalysis has tended to confirm the deterrent effect of arrest. But let’s be careful not to put the cart before the horse with body cameras, and allow the evidence to accumulate. Patience!

Stephen K. Rice is Associate Professor in the Department of Criminal Justice at Seattle University and co-editor of Race, Ethnicity, and Policing: New and Essential Readings (NYU Press, 2010). Michael D. White is Associate Professor in the School of Criminology and Criminal Justice at Arizona State University. He is co-editor of Race, Ethnicity, and Policing: New and Essential Readings (NYU Press, 2010) and co-author of Jammed Up: Bad Cops, Police Misconduct, and the New York City Police Department (NYU Press, 2012). Amanda Geller is Clinical Associate Professor of Sociology at New York University. Matthew Hickman is Associate Professor of Criminal Justice at Seattle University. Robert Kane is Professor of Criminology and Justice Studies at Drexel University. He is the co-author of Jammed Up: Bad Cops, Police Misconduct, and the New York City Police Department (NYU Press, 2012). William Parkin is Assistant Professor of Criminal Justice at Seattle University. Ronald Weitzer is Professor of Sociology at George Washington University and author of Legalizing Prostitution: From Illicit Vice to Lawful Business (NYU Press, 2012).

Black Lives Matter, youth militancy, and resistance

—Sekou Franklin

[Note: This piece was originally published on Atlanta Blackstar.]

Almost 100 years ago, the Harlem intellectual Hubert Harrison celebrated black resistance to racialized violence in the essay “As the Current Flows.” He described it as making white mobs take “their own medicine” as blacks fought back against vigilante groups in urban centers at the height of the Red Scare. The “New Negro spirit” or militancy, he believed, represented a fait accompli in American politics, or a permanent mode of black defiance against an oppressive system and its black accommodationist leadership.

The protests surrounding the police killings of Michael Brown, Eric Garner, and others raise the question of whether they will be this generation’s fait accompli. The Black Lives Matter movement can potentially reshape the national dialogue around race, class and the criminal justice system. It can also deepen the commitment of young and older grassroots leaders to racial justice and participatory democracy. Though young blacks make up a large number of the participants in the protests, the movement has further galvanized a large contingent of non-blacks such that it may lead to a new kind of rainbow coalition.

Almost 20 years ago, I lived in a San Francisco neighborhood that experienced its own police killing of an unarmed black man named William Hankston. Residents were especially outraged that it occurred near a day-care center where two dozen school-age children witnessed the incident. The killing ignited minor scrapes between black youth and the police. Yet after the anger subsided, the protests stopped as the victim’s family and the police department began a legal battle that lasted several years.

My front-row seat at the Hankston incident shaped my immediate response to the protests in the aftermath of the Michael Brown shooting. I thought the protests would end or be corralled by black leaders and that the protesters would eventually go home. I was wrong. Instead of diminished protests, they continue to spread throughout the country including in places as dissimilar as New York and Alaska, as well as dozens of cities outside the United States.

By all accounts, activists and communities at the forefront of the Black Lives Matter movement have a policy window or political opportunity to advance serious reforms of a broken criminal justice system, and to connect these reforms to economic justice policies that can improve the lives of the working poor. There is already evidence that the resistance has made a difference. Moderate racial profiling measures are currently being debated in state and local legislative bodies. Congress just approved the Death in Custody Reporting Act, and the Justice Department announced new rules to reduce racial profiling by federal law enforcement officials.

Yet despite the incredible courage and youthful energy of the protesters, it is unclear if these protests will lead to life-altering improvements for working-class communities beyond the moderate reforms that were just approved. Black Lives Matter activists are up against entrepreneurial police commissioners that have different management styles than earlier police chiefs such as the Bull Connors, Frank Rizzos, and William Parkers that ran big-city police departments from the 1930s-1970s. Whereas the latter group publicly championed jackboot, racialized policing strategies, most of today’s big-city police superintendents (and district attorneys) have perfected the art of political stagecraft and are particularly skilled at building allies in the black community. These officials, working hand-in-hand with powerful economic interests, have built in most cities a “cradle to prison” regime — biracial or multiracial governing coalitions skilled at moderating racial discord in the aftermath of incidents involving police misconduct.

We don’t have a definitive answer as to what makes movements such as Black Lives Matter a fait accompli or a permanent mode of resistance. What distinguishes movements and youth-based insurgencies that foment transformative change from those that are contained has puzzled movement activists and scholars more than many of us would like to admit. Yet young activists should pay attention to some signposts as they attempt to sustain the Black Lives Matter movement in 2015.

Intergenerational activism

Although the recent groundswell of activism has its own unique character and historical roots, it is part of a long tradition of youth militancy that dates back nearly a century. In the 1920s, black college students revolted against the oligarchic leadership that presided over historically black colleges and universities. A decade later the Southern Negro Youth Congress, a radical youth formation that attracted young activists such as James Jackson and Sallye Davis (Angela Davis’ mother), organized young people in support of economic justice and voting rights initiatives. The 1950s and 1960s gave birth to the Youth Marches for Integrated Schools; the sit-in movement of 1960 that attracted more than 50,000 young protesters; and the Student Nonviolent Coordinating Committee, or SNCC, as well as the Student Organization for Black Unity. Young activists helped to propel the Pan-African and black feminist movements of the 1970s as well as the South African divestment movement of the 1980s. And, the Black Student Leadership Network set up dozens of freedom schools in low-income communities during the early-mid 1990s.

Despite these earlier movements and others not mentioned, we still have a lot to learn about black youth agency. Many older black activists believe that the strength and dynamism of black and multiracial movements in the 1960s have been under-researched or inaccurately reported. Some activists even believe that the overall framing of black youth agency — and the media’s obsessive attention to the divisions between adults and the youth — was initially framed by academicians whose experiences and research were shaped by white-led and western European student movements. Some believe assessments of white student activism were mistakenly reinterpreted or misappropriated to evaluate black youth agency. Whether true or not, the limited research on black social and political agency has inhibited the academic and activist communities from challenging common assumptions about youth activism.

Also frustrating is the media’s focus on adult/youth divisions within the black activist community in its portrayal of the Black Lives Matter protests. This attention has been partially fueled by young protesters themselves. Corporate and even the most movement-friendly media have little understanding of grassroots organizing, how protests are planned, and the actual science or strategic planning that goes into sustaining movement campaigns. The adult-versus-youth narrative, which is quite predictable and unsettling, thus takes away from deeper stories about the brilliance and tactical innovation of the young Black Lives Matter organizers.

Certainly, generational divisions permeate all protest waves. They did in the 1930s, almost a forgotten period of black youth radicalism, and they were pervasive in the 1950s-1970s civil rights and black power movements. However, the intergenerational dimension of these movements is actually a testament to the vitality of black political agency. The cohesion between young activists and long-standing community leaders, many of whom are unrecognized and barely mentioned in movement media portraits, is certainly more fascinating than the clashes between young radicals and the black establishment.

Take for example the dominant narrative in movement circles about generational divisions between SNCC and Martin Luther King, Jr.’s SCLC. SNCC may have been the most important youth-based movement organization of the twentieth century. Its intimate relationships with older, indigenous activists or what Charles Payne calls “local people” was more reflective of its organizing philosophy than its battles with the SCLC. Herbert Lee, Amzie Moore, Fannie Lou Hamer, Aaron Henry, and Gloria Richardson were older leaders who joined or allied with SNCC.

On the other hand, a network of young activists bolstered some of SCLC’s militant action.  James Orange joined SCLC in his late teens, and was one of the unsung heroes of the Selma voting rights campaign despite being younger than most SNCC members. (The Selma movie inaccurately portrays Orange as the same age as other SCLC staff members, but he was actually in his early twenties at the time and younger than SNCC chairperson John Lewis.) Diane Nash and Bernard Lafayette, both young organizers in the Nashville civil rights movement and the freedom rides, traversed between SNCC and the SCLC. The SCLC also coordinated Septima Clark’s Citizenship Schools after the collapse of the Highlander Folk School. The Citizenship Schools mirrored SNCC’s freedom schools and surely was championed by young activists who were critical of the SCLC and adult leadership.

Indeed, many young activists have no problem working in intergenerational movement infrastructures as long as seasoned or older activists respect their voice and autonomy.  Young organizers also need older activists to leverage their resources and expertise to prolong militant youth action. What young people oppose is the doctrinaire and seemingly anti-democratic wing of the black leadership class. Even Ella Baker’s critique of the SCLC and adult leadership, as recounted in Barbara Ransby’s groundbreaking book, “Ella Baker and the Black Freedom Movement,” was less about generational divisions than the class orientations and bureaucratic inertia of the mainline civil rights groups.

For the purposes of the Black Lives Matter protests, the most useful example from Baker’s life may be how she used her position in the SCLC and her close ties with other social justice groups to develop an alliance of student and youth activists. Many activists are familiar with the story of SNCC. It was formed at the tail end of the 1960 sit-in movement that targeted racially segregated, public accommodations. After the sit-ins, Baker pulled together young activists for a national gathering at Shaw University in Raleigh, N.C., in what became SNCC’s founding conference.

A national dialogue

A similar national gathering involving Black Lives Matter organizers and seasoned community organizations — from the Lost Voices, League of Young Voters, Black Lives Matter, Dream Defenders, BYP 100, Hands Up United, Center for Community Change, Organization for Black Struggle, Movement Strategy Center, Millennial Activists United, NAACP Youth & College Division, Malcolm X Grassroots Movement, Project South, Highlander Research and Education Center, National Coalition on Black Civic Participation, Ferguson Action, Southern Echo, and leading hip-hop activists — would have the potential to break new ground for 21st century resistance movements.

However, a major concern is that some of the Black Lives Matter activists are caught up in what used to be called a “freedom high” and many actions — die-ins, hands up postures and road blockades — lack strategic planning and are failing to tell real stories of how working people are adversely affected by the criminal justice system. Because some actions are ritualistic, some local initiatives or networks have done a poor job connecting the Ferguson and Staten Island grand jury decisions with local policy demands.

A national gathering could give the lead organizers the opportunity to strategize and think more systematically about leadership development, training and storytelling. It could give young people deeper connections with indigenous networks in working-class communities of color. It could encourage them to extend the organizing sphere to small cities and rural communities that are also plagued by police misconduct and racially disparate inequities in the criminal justice system. The gathering could also allow young people to link grievances about criminal justice irregularities to economic justice claims.

Admittedly, creating a national alliance has its shortcomings. It takes resources, funding, and the lead organizations would inevitably have to grapple with racial and ideological divisions in the Black Lives Matter movement. Yet, not having a national dialogue or gathering could damage the long-term prospects of youth activism. Professor Matthew Countryman was a young organizer in the South African divestment movement during the 1980s. Similar to today’s protest wave, the divestment movement experienced an outpouring of student and young activists, who organized actions at more than 100 universities in the United States. The movement also pressured lawmakers to adopt the Comprehensive Anti-Apartheid Act of 1986, Congress’s most authoritative attack against the South African regime. Yet, as Countryman wrote in the Nation essay, “Beyond Victory: The Lessons of the Divestment Drive,” the movement “grounded to a halt largely because of serious organizational and strategic weaknesses.” Influential divestment activists religiously guarded their autonomy because of well-understood suspicions of cooptation. They then rejected attempts to build a broader political base or national alliance that could unite young activists and leverage the resources to extend movement building activities.

There is some indication that leading activists involved in Black Lives Matter are dialoguing about how to sustain the movement beyond the initial wave of actions. On January 22nd these activists coalescing under the moniker, National Collective of Black Organizers, released the report, “State of the Black Union: The Shadow of Crisis Has Not Passed”. The brief outlines twelve, broad demands for America that reflect the sentiments of the Black Lives Matter movement.

However, eleven out of twelve demands mirror the resolutions and policy recommendations already advanced by mainline civil rights and black groups such as the NAACP, Urban League, National Action Network, Congressional Black Caucus, National Black Caucus of Local Elected Officials, National Black Caucus of State Legislators, and Nation of Islam. The only point of contention between the collective and mainline organizations is perhaps the former group’s critique of President Barack Obama’s My Brother’s Keeper initiative. The collective criticizes the exclusion of women and LGBT youth from the initiative, and instead urges Obama to reorganize it into the Our Children’s Keeper program. What’s missing from the brief is a detailed assessment of how the collective’s demands differ from those endorsed by preexisting black and civil rights groups.  Also missing is a concrete plan that connects young activists with indigenous and older activists living in struggling black communities, and working with residents who need immediate or specific policy interventions to address their material conditions.

Cross-sector movement alliances

In reality, the recent protests are part of a larger multi-layered and cross-sector protest wave. The Moral Monday movement initiated by the North Carolina NAACP has lasted a year and a half and is now in a dozen states. Another promising movement is the Show Me 15 — a $15 per hour wage for fast food workers — that has spread to 200 cities. Show Me 15 activists are mostly low-wage workers, people of color including a large representation of black women, and young people. These worker activists offer a counter-narrative to the politics of respectability that positions students, middle-class or sanitized activists at the forefront of movement campaigns.

Fortunately, we can look to the Ferguson/St. Louis region to understand the benefits of cross-sector movement building. Some organizers on the frontlines of the restaurant boycotts in St. Louis joined the Ferguson protests. Some of the St. Louis/Ferguson worker activists then traveled to my home state of Tennessee to stand on the picket lines with boycotting fast-food workers. The cross-fertilization between criminal justice and economic justice movements is potentially one of the transformative outcomes of this current wave of protests.

Cross-sector alliances have already produced deeper conversations between diverse activists. They have allowed for movement borrowing or the sharing of strategies and tactics between different groups adversely affected by the “cradle-to-prison” regime, including black youth activists concerned about racial profiling and racially-based police killings, low-wage restaurant workers whose economic mobility is inhibited by prior histories in the criminal justice system, immigrant rights advocates who fight against racial profiling programs such as 287(g) that have led to the mass detention of undocumented residents, and young homeless rights activists whose constituents are heavily policed and pushed out of high-density and commercial development corridors.

The role of the academy

If Black Lives Matter, Moral Monday, Show Me 15, and other movements are going to be viable responses to inequality then black social scientists must be integral to this struggle. There are multiple roles that they (we) can play including assisting young activists with press releases, op-eds, fundraising initiatives and research.

During the protest waves of the 1930s-1940s and the 1950s-1970s, there was a partnership between resistance movements and hybrid academicians (or scholars who had one foot in movements and the other one in the academy). Ira De Reid, E. Franklin Frazier, and Charles Johnson belonged to a cadre of black scholars commissioned by the American Council on Education in the 1940s to study the challenges facing black youth. Their pioneering studies provided a broader context for shaping radical youth organizations such as the Southern Negro Youth Congress.

The National Conference of Black Political Scientists was also established in 1969 as an outgrowth of the civil rights and black power movements. More recently, black political scientists have been on the frontlines of anti-poverty and labor campaigns, movements to abolish the death penalty and reverse wrongful convictions, public health initiatives, LGBT movements, voting rights campaigns, and other social movements. The Moral Monday movement’s official training manual further encourages its state or local affiliates to partner with “activist scholars” as a key component of movement building.

The Current Flows

In looking back at the period that shaped Hubert Harrison’s perspective, one might very well conclude that he was wrong in his prediction that America was on the horizon of a black fait accompli or permanent mode of black resistance after World War I. Although black students revolted at their universities in the 1920s, the protests were relegated to a small contingent of the middle-class. Harrison’s optimism notwithstanding, Jim Crow stiffened and Northern racism persisted. Racial terrorism also increased and black life worsened under the Great Depression.

The events in the first half of the twentieth century underscore how difficult it is to sustain civil resistance beyond the initial outbursts or wave of protests. Ella Baker understood this challenge. She rejected the notion that the 1960 sit-in movement would continue to self-procreate even though the movement attracted tens of thousands of students.

After the initial wave of sit-ins, she and others rededicated themselves to organizing, planning, leadership development, intergenerational movement building, and experimentation in order to convert youth insurgents into a formidable political force in the 1960s. As such, if the Black Lives Matter resistance is going to be a protracted struggle instead of an episodic one, its leading voices must follow Baker’s instructions. Only then will we know if the movement is the fait accompli for this generation.

Sekou Franklin is the author of After the Rebellion: Black Youth, Social Movement Activism, and the Post-Civil Rights Generation (NYU Press, 2014).

Q&A with Andrew M. Schocket, author of Fighting over the Founders

In the interview below, author and historian Andrew M. Schocket discusses his longstanding love of history, the inspiration behind his new book, and his thoughts on the shifting legacy of the American Revolution.

We would also like to extend our thanks to the interviewer, graduate student Adam Crockett, for generously allowing us to publish the piece here.

Q: When did you become interested in history, and was it always American history?

Andrew M. Schocket: Even as an adolescent, I was interested in history. I was lucky to have wonderful American history teachers and a teacher of European history who was Russian. Russian history is the history of suffering and perseverance, the steppes and the winter, forbearance and, of course, the state and Mother Russia. By contrast, American history is the history of promises kept and broken, of liberty and power, of many groups figuring out where they fit in the grander dreams they have for themselves and the nation.

Is your particular area of expertise the era of the American Revolution?

It is, and I’m finally getting back to the American Revolution in my writing. It was what I went to graduate school to learn and write about, and still my greatest passion in history. My first book, on the origins of corporate power in the United States, was an exploration of how Americans in Philadelphia reorganized their polity and economy in the aftermath of the Revolution. I’m now working on several projects. Chief among them is a book about the scale of violence during the American Revolution, and how it was mostly resolved by the end of the eighteenth century. The violence and dislocation of the Revolution has been greatly downplayed. Admitting that, what I’m asking is, given that a majority of Americans were either neutral (“disaffected,” they called it) or loyalist, what led people to begin to recognize their new governments—local, state, and national—as legitimate?  Why did they start obeying the laws, serving on juries, paying their taxes? As with so many questions about the past, it’s also partly inspired by the present, as we look around the world and wonder how to restore some sense of order to the many countries suffering chaos. That said, it’s a question I’ve been thinking about on and off for close to twenty years.

Was the spark for this really a political flyer? How long have you been writing this book for?

Invoking a political flyer served was a good hook to my chapter about politics in Fighting over the Founders, because it’s something that so many of us has encountered.  But the book came out of some work I was doing around 2008, as I was writing a more theoretical piece on future directions of the scholarship on the American Revolution. Most historians in America are very unreflexive, that is, don’t think much about our own position in our scholarship, as we are taught to be, and especially most historians of the American Revolution. How could we, and the general public, understand the American Revolution without considering the lenses through which we view it?  So I began to look around at political culture and popular culture to see how we encounter the American Revolution, and the book grew from there.

Do you feel that American history is unique in that regard? Is America a land of “promises kept and broken”?

It is, perhaps to a greater extent than most countries, because American nationalism may have a stronger dose of idealism to it than most. Nationalism for most countries is bound up more centrally with ethnicity. To be sure, historically and even in the present day, many Americans have imbued American nationalism with ethnocentrism. Nonetheless, a nation that claims to be a “citie on a hill,” dedicated to “life, liberty, and the pursuit of happiness,” whose sovereignty is vested in “we the people,” and that has a “government of the people, by the people, for the people” is one that has many promises woven into its fabric.

Do you feel you’ll ever have an answer to that question, of what inspired
the “disaffected” to recognize the new government?

Maybe. Stay tuned. But even if I have an answer, as with the work of any historian, it won’t be the last word.

When did you settle on the terms “organicist” and “essentialist” for the
different political parties? Specifically, at what point did you recognize
the patterns in their respective discourses?

It was clear that there was a stark difference in the kinds of language that Republicans used versus what Democrats used.  It surprised me a little, in that I had expected that they would be pretty similar. The use of “essentialism” was pretty easy, as it’s a term already out there describing a similar mindset in other contexts.  “Organicism” was harder, and it’s not as perfect a fit, which is why I devoted some space to defining both of them and the history of the concepts.

It’s not exactly a historian’s job to predict the future, but then where’s
the fun without it? Given how you’ve said most of the landscape was
dominated by essentialists up until the 1970s, do you see organicism
eventually becoming the dominate view? If not, what do you see happening
farther down the road with regards to how the public sees the Revolution
the farther away from it we get?

As best I can tell, essentialism and organicism are both becoming entrenched, just in different ways than before. Popular and political culture are too vast for large elements of the national self-image to disappear; plus, in some ways these two threads represent deep fissures in American culture that show no signs of going away. We’ve been debating the American Revolution for over two hundred years. It will be fascinating to see how the debates will go concerning the next big milestone, the nation’s sestercentennial, or whatever we decide to call the nation’s 250th anniversary.

And finally, the most important question, what do you like to drink when
you’re writing?

Water neat, sometimes with a water chaser. Although apparently best practice suggests alcohol for creativity, and caffeine for productivity.

Andrew M. Schocket is Director of American Culture Studies and Associate Professor of History and American Culture Studies at Bowling Green State University (OH). He is the author of Fighting over the Founders: How We Remember the American Revolution (NYU Press, 2015).

Why grand jurors matter

—Andrew Guthrie Ferguson

On Monday, at 9:00pm, the nation anxiously awaited the decision of twelve ordinary citizens. National and international media prepared to report on the collective efforts of the grand jurors assembled in the Darren Wilson/Michael Brown case. Those ordinary citizen-jurors had worked for three months, digesting the testimony of 60 witnesses, reams of documents, and physical, medical, and forensic evidence.

The striking thing about that moment before the prosecutor announced the “no true bill” was the faith that the crowd had in the institution of the grand jury. The crowd was quiet, peaceful, and hopeful that the legal process would work. It was a moment of faith in a democratic system that trusts citizens to judge citizens. And, what is so tragic about an already tragic police shooting is that this faith was undermined by the grand jury process itself.

To be clear, the grand jurors did exactly what they were supposed to do. They listened to the evidence, they deliberated, and they made a decision based on a legal standard that is quite protective to claims of self-defense by law enforcement officers. But, they did so in a grand jury that was not typical, and was, in many respects, quite unusual compared to the normal grand jury process.

As a general matter, for reasons of efficiency and tactics, most prosecutors do not allow the grand jurors the ability to request evidence or ask for testimony as was done in the Darren Wilson grand jury. If such an open process were done in the normal course, grand jury indictments would be much slower to reach, and trial convictions much more rare because all of the conflicting statements and evidence produced at the grand jury would have to be turned over to the defense. For those reasons, most prosecutors generally have witnesses summarize evidence, testify through hearsay, and seek only to produce evidence sufficient to reach the rather low standard of probable cause.

Last year in Kaley v. United States, Justice Elena Kagan remarked that probable cause at a grand jury was an “undemanding” standard which serves merely a gateway function before trial: “Probable cause, we have often told litigants, is not a high bar: It requires only the ‘kind of “fair probability” on which ‘reasonable and prudent [people,] not legal technicians, act.’” Thus, this expansive, extensive grand jury investigation was not the usual process to find probable cause.

At the same time, at least in theory, grand juries are expected to play the role of protectors of the accused. Grand juries were designed by the Founders as part of our constitutional structure to protect citizens from unfounded prosecutions and political pressure. What the prosecutors did in this case was faithful to that original purpose.

The tension—now a national flashpoint—is that such a fulsome grand jury investigation is not done in the ordinary course, and certainly would not have been conducted if Michael Brown had killed Officer Darren Wilson. Both investigations would go before a grand jury, yes, but the process of an extensive and complete grand jury investigation would likely not have occurred. This two-tiered structure plays into a narrative of unequal treatment of minorities at the hands of police, an inequity that raises real issues of racial justice and police-citizen trust in St. Louis and beyond.

In the coming days, pundits, lawyers, and citizens will debate the merits of the evidence released that night, and the wisdom of the path the prosecutors took in placing all of the evidence before the grand jury. But, no matter the debate, what those grand jurors did was to be commended and respected. Those jurors showed that grand jurors matter, and will continue to matter in society. Hopefully, as a society, we will take this opportunity to educate ourselves about the role of jurors and try to regain a renewed faith in the legal system.

For more thoughts on the subject, please see the recent episode of The Diane Rehm Show on Ferguson.

Andrew Guthrie Ferguson is author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2012) and an associate professor of law at the David A. Clarke School of Law at the University of the District of Columbia.