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The Appeal Podcast: Black Lives Matter and Racism in the Criminal System

With Angela J. Davis, Appeal contributor and professor of law at American University’s Washington College of Law.

Angela J. Davis

Over four years after the killing of Michael Brown in Ferguson the issue of racism and racial disparities in the criminal legal system remains as urgent as ever. Our guest, professor at American University College of Law, Appeal contributor and author Angela J. Davis, recently edited an anthology on race and the US criminal system titled Policing the Black Man that lays out, in no uncertain terms, just how wide the gap is between the experiences of white and black Americans in everything from policing to bail to conviction rates.

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Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, you can follow us on Facebook at The Appeal magazine’s main facebook page and you can always subscribe and rate us on iTunes. Over four years since the killing of Mike Brown and the subsequent Black Lives Matter movement, the issue of racism and racial disparities in the criminal legal system remains as stark and as urgent as ever. Our guest, Professor at American University College of Law, Appeal contributor and author Angela J. Davis has recently edited an anthology on race in the US criminal legal system called Policing the Black Man that lays out in no uncertain terms, just how wide the gap is between the experiences of white and black Americans and everything from policing to bail to trials.


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Angela J. Davis: African Americans, black and Brown people, are treated worse than their similarly situated white counterparts at every step of the process. Everything from racial profiling by police officers who stop and search and harass African Americans simply because of the color of their skin to prosecutors who make charging and plea bargaining decisions that favor whites and that harm African Americans or put them at a disadvantage to judges who, when they do have discretion, make decisions both in trial and at sentencing and then the sentencing laws themselves that are so harsh, that overlay everything. So I think all of these reasons contribute to these racial disparities.

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Adam: Thank you so much Angela for joining us.

Angela J. Davis: Thank you for having me.

Adam: So you’ve written a lot about over the years about the criminal legal system, prosecutors. You have recently edited a book Policing the Black Man: Arrest, Prosecution, and Imprisonment on the racism of criminal justice in general, which is something that we talk about a lot, but haven’t really dug into as such. And so I want to start off before we begin to talk with kind of setting the table for the listeners, have some basic facts about the disparities in criminal justice. Um, and then I want to sort of start by commenting on the scope of the problem. So African Americans are two and a half times more likely to be arrested than whites. They’re disproportionately targeted, stopped-and-frisked and searched. Black men end up in prison more often and receive longer sentences for similar alleged crimes than white men. And they’re 21 times, this is probably the most shocking stat of all, they are 21 times more likely to be killed during police encounters than white men. So just to set the table, can we talk about how stark and dispositive the institutional racism of our criminal legal system is and is this even something that you think is even up for debate?

Angela J. Davis: No, I don’t think it’s up for debate at all. The statistics are pretty overwhelming and you laid out some of them. African Americans, black and Brown people, are treated worse than their similarly situated white counterparts at every step of the process from arrest to prosecution to trial to sentencing. And by similarly situated, I mean when whites engage in the same behavior or alleged to have engaged in the same behavior, they are treated better than African Americans and Latinos, and that’s pretty much, you know, established in the system. And this is true by the way, whether they are charged with a crime or are victims of crime, it is the case. Um, and these unwarranted racial disparities are stark. And the causes of the causes for the racial disparities are complicated. You know, they are varied and complex, I should say. They are the socio economic reasons that have to do a lot with poverty. People of color are disproportionately poor in this country and the poor are disproportionately people of color and everyone is pretty familiar with the connection between crime and poverty. So there those socioeconomic reasons, but there are also the discretionary decisions that are made by criminal justice officials at every single step of the process that also contribute to and help to cause these disparities. Everything from racial profiling by police officers who stop and search and harass African Americans simply because of the color of their skin, to prosecutors who make charging and plea bargaining decisions that favor whites and that harm African Americans or put them at a disadvantage, to judges who when they do have discretion, make decisions both in trial and sentencing and then the sentencing laws themselves, uh, that are so harsh, that overlay everything. So I think all of these reasons contribute to these racial disparities. So it’s, it’s complex. It’s not as simple as saying the system is racist. Well, yeah, the system is racist, but you have to dig a little bit deeper to really understand how it plays itself out.

Adam: So the book you edited, Policing the Black Man: Arrest, Prosecution and Imprisonment, is sort of a survey of the general literature and writing, especially in the context of Black Lives Matter, which obviously has drawn attention to police abuse and police shootings. Now, one thing I think a lot of people don’t necessarily appreciate is how police shootings are really just the very, very tip of the iceberg of a broader issue. Um, but they’re kind of the more extreme, vulgar and more visceral version of a regime of harassment, which one of the contributors to your book Kristin Henning, sort of documents as a cradle to grave thing, as a boyhood adolescence to adulthood that in every step of the way there’s a criminalizing of black people. Can we. Can we talk about that? Like what are some of the first instances in which African American children, specifically men, are kind of put on the grid or kind of criminalized by virtue of being black?

Angela J. Davis: Yeah. So Kristin Henning, who is one of the nation’s leading experts on, on juvenile justice issues lays this out in the book. And just a bit about the book.  Really what it is, what it attempts to do is to explain the many ways that the criminal justice system polices black men and policing meaning in the broader sense of the word. In other words, the many ways that the system controls black men at every step of the process from arrest to prosecution to sentencing. And in her chapter she really talks a lot about black boys and really black boys are treated worse by police officers and the system then black men, quite frankly. And she explains it quite well in her chapter. You know, we first of all know that all adolescents, because of the adolescent brain and not being developed, they act impulsively, they do stupid things. All kids do, you know, just by nature of the fact that they are kids and their brains have not yet developed. They’re very impulsive. They react in different ways. But police, when they see black boys, they treat them differently. They see black boys on the street corner playing and doing the kinds of things that kids do. And they see a criminal. They don’t see a kid. Right? And they go over to them, they put their hands on them, they throw them down, they search them, they frisk them, they assume they’re doing something wrong. And of course anyone, even an adult, but certainly kids, are going to respond, you know, in a very negative way. They’re gonna, you know, feel like they are being mistreated for no reason, and so they respond impulsively and then that of course then causes the offices to decide that they have then reasonable suspicion or probable cause to arrest them or search them and it’s just a cycle. And when you add to that, the adultification of black boys, uh, you know, there’s research done that shows that police officers, when they see black boys, they see someone who’s a lot older than, than they are when they see white boys, they see them as being much younger. And so that just adds to the criminalization of black boys who are really engaging in behavior that’s not criminal. It has a tremendous impact because this of course colors the way that black boys see the police, they don’t trust them, they’re afraid of them, they respond to them and then this goes on into their adulthood. Um, so I think it’s a tremendous problem and it affects black boys I think you know worse than black men and girls and women. I think they are targeted in ways that no other demographic is targeted.

Adam: You note that one study found that, um, officers overestimate the age of quote “adolescent black felony” suspects by roughly four and a half years and underestimate the age of adolescent white felony suspects by one year. This is beared out in several studies. The media plays into this as well. We routinely see African American teenagers referred to as adults or in adult terms. Um, and Donald Trump Jr., who’s, who’s I think, or Donald Trump’s kids who are in their early forties are referred to just like stupid kids. So this is something we see time and time again.

Angela J. Davis: Exactly.

Adam: Yeah. I guess I’m, I guess I’m curious to what extent do you think that perceptions in the media help this feedback loop and do think that that becomes part of the same sort of racist dynamic? Is it innate? Is it just a, is it just because, you know, one of the things that a lot of people have tried to focus on is trying to retrain police officers to kind of be less racist? You think that that’s possible, or is it so ingrained into the system that’s something more structural has to happen?

Angela J. Davis: Well, of course I think both. I mean something structural needs to happen, but we also need to do training. I mean these problems are complicated so there’s not gonna be one solution that’s going to solve it. And if you’re talking about police in their interactions, I think a lot has to be done, you know, implicit bias training. So people talk about implicit bias. It is something that’s real. I think that everyone suffers from implicit bias, you know, you and I do, we all do, right? That we have these views about other individuals that we’re not even aware of that causes us to look at them differently, treat them differently based on their race, their gender, their sexual orientation, their skin color, their body size, whatever it may be. And we’re not even aware that we’re doing it. It is that thing that causes, you know, the woman who comes onto the elevator and sees a black man and pulls her purse a little closer or you know, moves away and she’s not even aware she’s doing it. But she sees a black man and she sees a criminal, and this is, this is how black men and boys and women too, by the way, but certainly black men and boys have to live their lives every day and so how do we solve this? Right? There’s no one solution. I think police training is a huge part of it though. Implicit bias training certainly, and there’s a really interesting program now at Georgetown Law School a Fellowship in which they are engaging with the DC Police Department for brand new police officers to come to Georgetown and engage in this training on issues like race and juveniles and implicit bias, all kinds of issues. It’s an interesting program. I think we have to start somewhere, so I think implicit bias training is a big part of it. Yeah. Does the media play a role? Certainly the media plays a role, but I think police departments have to take a responsibility for training their officers. That’s a big part of it as well.

Adam: You write a lot about prosecutors. You’re probably one of the foremost experts on prosecutors in their role in the criminal legal system. A lot of the attention over the last few years is focused on police and police abuse. Increasingly, there’s been a shift towards focusing on prosecutors as the sort of fulcrum of power, sort of a higher ROI, more bang for your reformist buck as it were. Can we talk about the role prosecutors play specifically prosecutorial discretion in these racial disparities and what in your view are some of the solutions to this problem?

Angela J. Davis: Sure, so I believe that prosecutors are the most powerful officials in our criminal justice system. I mean we pay a lot of attention to the police and we should continue to pay a lot of attention to police because they obviously have a lot of power and discretion on the street to stop and search and harass and ultimately kill. But police officers, you know, in the majority of cases, thankfully in the majority of cases, people are not killed, but they’re certainly harassed and end up in the criminal justice system. But police officers only have the power to bring the person to the courthouse door. It is the prosecutor who makes the decision about whether that person will become entrenched in the system and exactly what happens to that person in the system and they make those decisions through their charging and plea bargaining decisions. They and they alone decide whether a person’s going to be charged with a crime and what that charge is going to be. They decide whether there’s going to be a plea bargain and what that plea bargain is going to be and those two decisions, the charging and plea bargaining decisions really predetermine the outcome of most criminal cases because about 95 upwards to 98 percent of all criminal cases are resolved by way of a plea bargaining. Right? We see all these television shows, Law and Order and all the different versions of it and we think all these trials are going on in the courtrooms everyday, not so. There are a lot of pleas, guilty pleas going on in the system and prosecutors totally control that process. They have such discretion. Just to give you an example, let’s say a police officer stops a person and finds a large amount of cocaine on them and they arrest the person and they take them down to the police station and then ultimately they end up in court and the police officer can recommend to the prosecutor what the charge should be. They may recommend that the person be charged with possession with intent to distribute cocaine, let’s say, which is a felony that carries a mandatory minimum sentence in every state and in the federal system as well, but the prosecutor doesn’t have to take that recommendation, right? She can decide to totally dismiss the case. Even if she’s got the ability to prove it beyond a reasonable doubt. She can say, I’m going to give this person a break. I’ll just miss this case.

Adam: Right.

Angela J. Davis: Or she can take the recommendation and charge the person with a felony, or she can say, well, I’ll charge this person with a misdemeanor. So you can see when they have all of this discretion and these decisions are made behind closed doors, they are accountable to no one, they don’t have to explain why they’re making the decision, so obviously that creates disparities. Many of the racial disparities that we talked about a little bit earlier and the decisions are made behind closed doors and they are accountable to no one except their boss, the chief prosecutor. Right? And so this is a tremendous amount of power. Similarly with the plea bargaining process, a lot of times they’ll pile on lots of charges. Oftentimes they know they can’t prove them beyond a reasonable doubt ultimately, but they can bring the charges and that puts the person in an overwhelming position of facing, let’s say five, six, seven counts of distribution each carrying ten years and facing sixty, seventy years the prosecutor comes and says, well, I’ll give you a break. I’ll let you plead to  one ten year mandatory minimum sentence, which of course is huge in and of itself, and the person thinks, oh my God, if I go to trial, you know, I may be found guilty of all of them even if I’m innocent so I don’t want to take that chance and so I’ll plead guilty. And all of these decisions are made by prosecutors, controlled by prosecutors, such tremendous, tremendous power that they have with very little accountability to the people that they serve.

Adam: One of the things you note is, because when trying to tease out the socioeconomic versus the racial disparities, that even if African Americans are driving nice cars or dress nice or sort of perceived as having money, this matter is a little bit, but not a lot and in fact can have an inverse effect where they’re perceived as being part of some illicit market, drug dealing, so forth. To what extent is race as such, even if you factor or or account for the socio economic aspect, a detriment and and what’s the sort of data on that because a lot of people say, oh, that’s just because of inequality and there’s sort of this class first approach but I think one thing that’s apparent in the data to me is that race in and of itself is a major factor separate from that.

Angela J. Davis: Of course. It’s race and class and how many stories have we heard of individuals, you know, professors, doctors, lawyers, I could give you countless examples of people who are treated, you know, athletes, I mean, how many stories, you know, the tennis player James Blake, I could give you countless, countless examples of African Americans who are well off, middle class to well off to wealthy who will because they have a black face the police officer see them as a threat, as a danger, as a criminal and they are treated poorly, you know, all in sometimes not just poorly but really harshly. So it’s race, it’s class, but it’s class and race and race is always a factor there regardless of a person’s socioeconomic background or income level. Always.

Adam: One of the things that, uh, that we, we talk about these things, there’s sort of this, this, this unequal pie that’s being distributed and that one approach to reform is to kinda just lessen the overall pie because obviously putting more white people in jail, making it more equal is sort of not desirable. Right?

Angela J. Davis: No, that’s not desirable.

Adam: Right? So what you want to do is you want to sort of reduce the pie and one way is that people are trying to, and this is something that obviously The Appeal does, which is target district attorneys and target prosecutors as a, as a major influencer. What in your mind is, if someone’s listening to this and sort of accepts the premise, as I think all rational people will, that there’s these massive racial disparities and huge racist regime of our criminal legal system, what in your mind are the sort of major solutions that people should look out for? So let’s be, we can be somewhat prescriptive here.

Angela J. Davis: Right. So as I said before, there’s so many different solutions and people say, you know, what can I do? And I say, you know, everybody can’t do everything but everybody can do something and we all need to get involved on different levels. You know, we need to hold our police chiefs accountable. Right? They are not elected, but the mayors who appoint them are. And so we have to become involved and make it known what we want. But I’m focused on prosecutors because I do see them as the most powerful and what I say to people is pay attention to your district attorney races. I think people don’t pay attention to district attorney races. So the chief prosecutors who were called district attorneys, sometimes they’re called state’s attorneys, uh, most of them, by the way, I should start out by saying there are federal prosecutors and there are state prosecutors, but 90 percent of all criminal cases are handled on the state level, which is why I focus so much on the state and in the vast majority, in all but about four or five states, prosecutors are elected officials and there are thousands of them. County officials, sometimes they’re elected in the county sometimes in the city, but they are elected every two, every four years. And most people don’t pay attention to that district attorney slot when they go in there to vote. A lot of times it’s because they are running unopposed. Oftentimes they serve for decades and no one challenges them, but we got to change that. And it is starting to change. There’s a movement out there of people challenging, uh, incumbents and what I call progressive prosecutors, individuals who understand that there’s a mass incarceration problem, who understand that there’s a racial disparity problem and who have decided to use their power and discretion and ways to change that. And so I urge people to pay attention to district attorney races to find people who want to run. If you’re a lawyer, run yourself if you have the qualifications to do that and to challenge some of these incumbents who are in there abusing their power and we’ve seen some examples of that happening in Philadelphia with Larry Krasner, Kim Foxx in Chicago and there are prosecutors around the country. Even in the south, Scott Colom in Mississippi. There are a number of them. Not Enough, but hopefully that will change as people pay more and more attention to their district attorneys. I think that’s one way of making a change and once they get in office, stay involved and stay on them. You know, I think it’s understandable why people don’t pay attention to the district attorneys. Right? Because unless you or a member of your family is involved unfortunately in the criminal justice system as either a victim of a crime or a defendant, normally you don’t really want to think about that. You don’t pay much attention to it, but we all have to pay attention if we want to change this system and not just when we’re in the system or our family members are in the system, but we have to pay attention if we want to change this horrible criminal justice system we’re involved in from policing to prosecution to lobbying our legislators on the state and federal level about these sentencing laws that are so terribly harsh. We have to get involved on all of those levels.

Adam: Yeah. I think it seems like a big problem and so what we want to sort of convey is don’t be crippled by it. Don’t be overwhelmed by it.

Angela J. Davis: Exactly.

Adam: There’s things you can actually do. One of the things you could start by doing is I think reading the work of Angela J. Davis, Professor of Law at American University. Check out her book that she edited, Policing the Black Man: Arrest, Prosecution and Imprisonment and check out her other books. She wrote Arbitrary Justice. Definitely a must read for anyone that’s interested in criminal justice reform, I would say a founding text of criminal justice reform, as it were, if it were a religion.

Angela J. Davis: Thank you Adam.

Adam: Thank you so much for coming on. I really appreciate it.

Angela J. Davis: Thanks so much for having me.

Adam: Thank you so much to our guest Angela J. Davis. This has been The Appeal podcast. Remember you can follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main webpage and as always you can rate and subscribe to us on iTunes. The Appeal is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.