Conversation around racial injustice in America has reached new heights. It’s no longer a conversation driven solely by people of color, for people of color. Black Lives Matter (BLM) has become a movement embraced by the full spectrum of diversity. It’s no longer someone else’s problem for someone else to fix.
BLM is now being championed by people of all races and ethnicities, as well as public and private industry and government sectors throughout the country. Racial injustice has seemingly become everyone’s problem, increasing the interest in and likelihood of finding solutions. Finally.
Racial injustice itself is nothing new. Racial injustice of blacks reaches back to the days when blacks were first brought to American shores in the 1600s. Unlike others who willingly came to America, blacks were brought to this country involuntarily. Others came with a sense of hope, seeking opportunity and a better life. Blacks were brought in shackles, only to see life worsen, having been branded the lesser race due to the color of their skin.
Racism and white supremacy underlie systemic injustice that continues to plague our society. Racism by definition leads to inequality, discrimination and differential treatment. Racism continues to tarnish our ideal of justice for all.
The word and concept of race is nothing more than a social construct created to differentiate between people. Throughout time, the concept has been used to justify the favorable treatment of one group over another, usually based solely on the color of skin. The favored race is provided with privileges, rights and opportunities to the disadvantage of the lesser race.
The concept of race supported a mental justification and rationale for early colonization of African countries, just as it supported the institution of slavery in America for over 250 years, and Jim Crow laws for another 100 years. The concept of race, and racism, provided cover to degrade and dehumanize blacks. Our laws and system of justice were of no avail, but, rather, part of the problem. The harmful effects continue to this day.
History reveals that blacks have been subjected to injustices in every facet of American life throughout the entirety of black history in America. Ample studies reveal these injustices continue to limit access to education, housing, property ownership, capital, health care, employment and economic opportunity.
The most visible injustice today is in the area of criminal justice and policing. Blacks are disproportionately represented at every step of the criminal justice system, from police encounters and arrests to incarceration. Evidence of police mistreatment and brutality is greater than ever, due in large part to cameras worn by police officers and the existence of cell phones with cameras in the pockets of bystanders.
Mistreatment of blacks at the hands of police is sadly nothing new. This problem has long been known and is commonly discussed in black communities. The recent killing of George Floyd and the growing access to video has expanded the conversation and prioritized the need for action. Video capturing police mistreatment of blacks, and the extent that it is portrayed in social media, makes it hard to dismiss.
The current role of cell phone video is strikingly similar to the role of television in the 1960s, broadcasting for the first time into people’s living rooms the severity of police brutality and racial injustice. Seeing the backlash against the Civil Rights Movement made it hard to ignore and brought about two of the most significant pieces of equal rights legislation, the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Without the impact of video these laws would not have been enacted when they were, if at all.
Sadly, though, other incidents of police brutality have sparked outrage over the years, but did not lead to meaningful reforms. Most Americans can remember the video footage of Los Angeles police savagely beating Rodney King in 1992. Most New Yorkers can recall the news coverage of Amadou Diallo, who was unarmed and shot 19 times by New York City police in 1999 as he attempted to enter his apartment. Both incidents and subsequent officer acquittals were followed by protests against brutality and racial injustice.
Despite the reaction to King, Diallo and countless other incidents of police brutality, the incidents continue. Will we now, finally, see a difference? I have reason to believe we will. Things feel different. BLM has become one of the largest movements in U.S. history. The momentum following the killing of George Floyd continues to grow. There’s never been a better chance for meaningful change
The horrific image of the knee on the neck of George Floyd for almost nine minutes, causing his death, remains imprinted in my mind. As a black man it hits too close to home. When I see that video I see me and so many others that look like me that have been on the receiving end of racial injustice. These types of incidents almost always involve a black or brown person as the subject of brutal mistreatment. It’s hard to even imagine the George Floyd video if George Floyd was white.
The fact that George Floyd was subjected to such harsh treatment while handcuffed on the ground and posing no threat to anyone, in broad daylight, and in view of so many onlookers depicts the complete absence of fear of retribution for the conduct. It is the epitome of that privilege that has fueled the level of outrage playing out in protests throughout America. The incident struck an emotional chord across the country. This has led to an earnest discussion of the extent of racial injustice and the immediate need for change.
Statutes across the country are swiftly being enacted to combat racial injustice and police misconduct. In New York, new laws have already been passed to address racial injustice and needed police reform in the aftermath of the George Floyd killing.
Governor Cuomo recently signed into law sweeping legislation. One of the most notable reforms is the banning of chokeholds and other restraints (the “Eric Garner Anti-Chokehold Act”) that have too often been used on people of color, resulting in serious injury and even death. Reform laws call for greater reporting of demographic information of arrests, use of weapons and arrest-related deaths. New laws also require that medical and mental health attention must now be provided to individuals in custody, prohibit race-based 911 reports and expand mandated use of police body-worn cameras. These are long-sought-after measures to address systemic injustices suffered by blacks at the hands of police.
In addition, section 50-a of the New York Civil Rights Law was repealed. This repeal now allows access to police misconduct records. Prior to this the public had no way of knowing the prior misconduct history of police officers entrusted to safeguard their communities.
By Executive Order, all municipalities within the state, as a condition of state funding, will now be required to establish a plan for reinventing and modernizing police strategies to be more community-responsive and to address racial bias and disproportionate policing in communities of color. This will require all municipalities to assess policing practices for equity and fairness in application to those who have suffered most from police misconduct.
For those officers that are law-abiding, good officers, the police reform acts should not hamper their ability to perform their duties. Rather, the reforms should lead to increased trust and confidence in the minds of citizens they serve.
At the federal level, Congress is currently debating new policing legislation. This was clearly spurred on by the George Floyd killing and the public outrage that followed. While disagreeing on how far the legislation should go, both Republicans and Democrats in the House and the Senate are talking about the need for change.
Throughout our country’s history, its laws have far too often been unequally applied to blacks and other people of color. Changes in existing legislation and the enactment of new laws alone will not now suddenly solve the problem. Lasting and truly meaningful change will only come from changing the minds of people. Unlike the speed with which we can enact new laws, changing the way people think will take time and will not come easy.
Part of the solution must include examination of how we see race, and what meaning we give it. Profiling based on race has contributed to injustice and to the disproportionate number of encounters and arrests of black and brown people here in New York and across the country. Seeing a person of color as lesser and more likely to be criminal makes it easier to rationalize the degradation and dehumanization of that person. Did the police officer who killed George Floyd see Mr. Floyd as equally human while his knee was on his neck?
To change the way blacks are seen in America, a good start is to change what we teach about black history in our schools. This should include much more than a brief discussion of what slavery was and discussions of notable black figures during the month of February. It should include a full discussion of the achievements and contributions of black Americans in building this country, including its wealth, and adding to its culture, richness and vibrancy that we so enjoy today.
Very few people, including most reading this article, know much of anything about black American history. Sadly, most people’s beliefs are formed by the mostly negative portrayals of blacks on television and other media. So, should we be surprised by the prevailing unfavorable stereotype?
As lawyers we have an even greater obligation to address racial injustice. We have an obligation to uphold the law as well as protect the integrity of our system of justice. We understand the importance of the rule of law in a democracy and the role laws play in day-to-day life. We also know how laws are made, and how those that are unjust can, and should, be challenged.
Until we have justice for all we have no true system of justice. Justice for some and not others is not justice.
Those lawyers who practice criminal law see the evidence and impact of racial injustice and a need for police reform on a regular basis. Those in civil practice see it in claims filed for misconduct. The evidence is clear and should not be ignored. It should be called out in the name of justice.
Judges should also take steps within their powers to address the racial injustice that so often plays out in our courtrooms. More than 100 judges of color across New York recently signed a letter acknowledging the extent of systemic injustice and bias in the courts and the need for judges to be mindful of the impact and responsive to ensuring equal justice for all. Chief Judge Janet DiFiore recently announced an independent review of New York’s courts for institutional racism. NYSBA recently named a task force to report on and make recommendations to address police misconduct and systemic racial injustice which I am proud to co-chair with Taa Grays.
To remain silent is to be part of the problem. The role and importance of lawyers in safeguarding equality and justice for all has never been more evident.
While we know changes are necessary, what is the ideal we strive for? What promise is there for our children, and our children’s children? How can we ensure future generations a more promising and just life for all? Will society’s conscience and conviction finally rise to the occasion?
It has always been part of the American dream for parents to envision a better life for their kids than they enjoyed. Does a better life include more than what we traditionally think of as success and wealth? Should it include such ideals as equal opportunity and justice for all? Will we remain tarnished as a nation until we have that?
Can there truly be a more promising life in America, built on continuing injustices that have plagued this country for centuries? Should we in positions of influence and power, including lawyers and judges, find our voices and take action? I believe it is our obligation.
I envision a future as spoken about by Dr. Martin Luther King, Jr. “. . . that one day this nation will rise up, live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’” It’s been 57 years since his famous I Have a Dream speech and we are nowhere near close to achieving the dream.
The younger generation, however, appears to have a greater sincerity and commitment to reaching the ideal, where the content of one’s character will prove of greater importance than the color of one’s skin.
A brighter future will ensure equal access to life’s opportunities that have so often been denied to people of color. This will include a sound education, housing and employment opportunities, access to health care and other basics of life that so many take for granted, but so many others only dream about.
A brighter future must include equal treatment under law and at the hands of law enforcement. And there must be a just criminal justice system for all Americans. A system that will not show disproportionate numbers of police encounters, arrests, brutality, prosecutions, incarcerations and wrongful convictions based on skin color.
The future ideal will make the current reality of white privilege a thing of the past. One’s shortcomings in life ought not be due to the color of one’s skin. Equally, one’s achievements and successes in life ought not be due to the color of one’s skin.
All lives, of course, matter. BLM does not contend otherwise. But for far too long, throughout this country’s history, black lives have mattered less. BLM is a calling to that fact. It’s also a call to action. And for the first time we may be witnessing a powerful and diverse movement at the level of commitment necessary to bring about significant movement toward racial equality.
The question is how long will we have to wait to get there? The Emancipation Proclamation, Constitutional civil rights amendments, countless anti-discrimination and equal protection laws, however well-intentioned, have failed to alleviate the widespread systemic racial injustice that persists in every facet of American life. Will others be writing similar articles to this one decades from now and asking the same questions?
A certainty is that things will never change without a strong and concerted effort, a struggle. As Frederick Douglass said, “If there is no struggle, there is no progress.” He also said, “Power concedes nothing without a demand.” Change throughout American history validates his words. The demand made by BLM is for a just society that treats all races equally.
The demand has been made. How will you answer the call?
T. Andrew Brown is President-Elect of NYSBA and is managing partner at Brown Hutchinson in Rochester and New York City. He is a past president of the Rochester Black Bar Association and Monroe County Bar Association, former corporation counsel and chief legal officer for the City of Rochester and currently serves as vice-chancellor of the New York Board of Regents.