A few weeks ago, while walking to my car after teaching a class, I saw a white woman who was approaching me on the sidewalk clutch her purse on her hip, cross the street, and head past me continuing in the same direction. Out of curiosity, I looked backwards, and I saw her cross back to my side of the street again after I had passed. A few days later, as I shopped for some incidentals at a local convenience store, I looked up and suddenly realized that the Asian store owner had “coincidentally” decided to start reshelving items on my isle, shifting to the next isle every few minutes to coincide with where I was, until I finally paid for my items and left.
These types of incidents happen every single day to Black doctors, lawyers, and professionals. In each of these situations, strangers on the street apparently feared me or had suspicions about my motives. Is it paranoid to think that my status as a young black male had something to do with their suspicion? Even President Obama has spoken out about how, as a black man, it is more difficult for him to get a cab in New York, because cab drivers there routinely decline to pick up black male passengers for fear of getting robbed. For my part, instead of taking these incidents personally, I have shrugged off the irrational fear that people of all ethnicities display towards black men and boys as simple ignorance not worth my concern. However, this reaction might have been a mistake. In a tragic way, Trayvon Martin’s case has illustrated how costly these fears, assumptions, and suspicions can be.
For those unfamiliar with this case, Trayvon Martin was a 17 year old African American high school student who was shot and killed by George Zimmerman, 28, who has one parent who is white and another who is of Hispanic origin. Martin was walking back from a store to his father’s house in Sanford, Florida, wearing a hooded sweatshirt, and carrying nothing on his person other than some candy and a soft drink. Zimmerman, a neighborhood watch volunteer, saw Martin and called the police, and began following Martin in his car. He suspected Martin to be a robber, and told the police “This guy looks like he is up to no good or he is on drugs or something.” Zimmerman pursued Martin, against the advice of the police, and emerged from his car and apparently yelled out to Martin, “what are you doing here.” An altercation ensured, and Zimmerman shot and killed Martin. After being taken in for questioning, Zimmerman was freed later that evening, with the police claiming that Zimmerman could go free as the murder of Martin was legally defensible under the recently passed “stand your ground” law in Florida. Under this law, a person does not have to retreat before using deadly force if he reasonably believes it is necessary to do so to prevent death or great bodily harm. In almost all states, such laws are used to protect people in their own homes; Florida’s version extends the no-retreat doctrine to public places.
It should be noted that the police officers were white and they described Zimmerman as white, and there is a history in Sanford, Florida of attacks against blacks being taken less seriously by the Sanford police department.
This case has raised many questions that remain unanswered. Most curious is how a teenager walking home carrying “skittles” candy and a soft drink could be deemed to pose a sufficiently significant threat under the law to someone to justify someone approaching them and shooting them to death. It is almost universally understood that a white teenager walking home would not be seen to have posed such a threat. Unfortunately, the irrational fear of black men and boys has arisen to such an irrational pitch in the United States that a black male teenager’s simple presence appears to be sufficiently threatening in the eyes of the law to justify shooting them as they walk down the street to protect oneself.
As a student in law school, I found an entry point into jurisprudence through exposure to a school of legal thought called critical race theory. This is a theory that was founded by one time Harvard Law Professor Derrick Bell—yes the same Derrick Bell that President Obama has recently been criticized for hugging during his days as a student. Critical race theory takes an honest account of the role racism plays in American law, and attempts to confront that sad legacy. One of my own professors in law school, Charles Lawrence, was a major figure in the field. Lawrence argued that anti-discrimination laws should not require that racism be intentional, because in our everyday lives racism rears its ugly head most often though unconscious assumptions, like those made by the store owner or the woman on the street, or George Zimmerman during his neighborhood watch surveillance.
Lawrence’s point applies to current federal laws in this case. If the federal government is to intervene, most likely it would prosecute Zimmerman under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, signed into law by President Obama in 2009. Matthew Shepard was a student who was tortured and murdered in 1998 near Laramie, Wyoming because he was perceived to be homosexual. James Byrd was an African American man who was tied to a truck by two known white supremacists, dragged from it, and decapitated in Jasper, Texas in 1998. This law increases the penalty for a crime if it was committed because of a person’s race, color, religion, gender, national origin, or sexual orientation. However, in order to find someone guilty of violating this law, the prosecution must prove that the actor specifically intended to commit the act because of a prohibited motive. In other words, any court trying Zimmerman must prove he intentionally killed Martin because of his race.
Here is the problem: even if we all know that Zimmerman would not have accosted a young white girl who was wearing a “hoodie” and walking down the street, or a young white man for that matter, he cannot be prosecuted for a hate crime or in this case unless his racially motivated intent can be proven, which is normally difficult to prove. This case may actually be an exception, because it appears that Zimmerman foolishly uttered a racial slur which was captured on tape during his phone call to 9-1-1 operators in the moments before he approached Martin.
Whether Zimmerman uttered the slur or not, the law should recognize and penalize suspicion based on race that leads to a person’s death as hate crime. Trayvon was one of many young, defenseless black children around the country, and around the world, who must cope with the daily “micro-aggressions” that society imposes on them due to racism, whether intentional or not. The incredible psychological strain these incidents put upon the Black community is a real harm, and the law should recognize that. A legal high bar for intent disguises many racial micro-aggressions, allows them to go unpunished, and results in incidents such as the Trayvon Martin case.
This hard to prove “intent” requirement ignores the point that Lawrence made back in 1987 in his seminal article “the id, the ego, and equal protection: reckoning with unconscious racism.” In that article, Lawrence was focused on Washington v. Davis, the now well established Supreme Court case that established the doctrine that required plaintiffs challenging the neutrality of a facially neutral law to prove a discriminatory purpose on the part of those responsible for the law’s enactment or administration. He goes beyond the obvious point that “racial intent” is easy to hide and argues additionally that oftentimes the actor him or herself does not even realize that their decisions are based on race. Racism is a major part of our society, and much of it plays out in ways that are unconscious. Racism is a disease, not always an intentional action.
Here’s a quote from Lawrence’s famous article:
Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional—in the sense that certain outcomes are self-consciously sought—nor unintentional—in the sense that the outcomes are random, fortuitous, and uninfluenced by the decision maker’s beliefs, desires, and wishes.
Americans share a common historical and cultural heritage in which racism has played and still plays a dominant role. Because of this shared experience, we also inevitably share many ideas, attitudes, and beliefs that attach significance to an individual’s race and induce negative feelings and opinions about nonwhites. To the extent that this cultural belief system has influenced all of us, we are all racists. At the same time, most of us are unaware of our racism. We do not recognize the ways in which our cultural experience has influenced our beliefs about race or the occasions on which those beliefs affect our actions. In other words, a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation.
This is the key point. When President Obama said that he thought that Trayvon Martin’s killing was a moment when the whole country needed to do some “soul searching,” the soul searching he referenced was focused on this question: How many of us, if we are truly honest with ourselves, would share Zimmerman’s in the moment instinctual reaction? That is, how many of us, whether we are black, white, latino, or asian, how many of us see young black men who walk down the street as potential criminals, rapists, murders, or drug addicts, no matter how inaccurate that statement might be?
This unconscious racism puts a great strain on the psyche of African Americans. Zimmerman and the Sanford, Florida police have now amplified this strain considerably. African American parents and families must now confront the very real possibility that not only could these micro-aggressions and often unconscious suspicions damage their children’s self concept, or thrust them unfairly into the criminal justice system—in 2012 it appears that a vigilante can murder their children in cold blood without legal penalty as a result of a micro-aggression gone haywire.
This incident has had a dramatic impact on the lives of African American parents and families, and it will be unmitigated tragedy if it does not spark a larger conversation on our community’s attitudes towards Black children.
Justin Hansford is Assistant Professor of Law, Saint Louis University School of Law