Thursday, May 28, 2020

Interest Convergence Looks Different Today: Talking to Ian Haney López (Blog Los Angeles Review of Books)

Below is an excerpt from Professor Ian F. Haney López's (Berkeley) interview in the Los Angeles Review of Books regarding his book, Merge Left: Fusing Race and Class, Winning Elections, and Saving America. Haney López is the Chief Justice Earl Warren Professor of Public Law at the University of California, Haney López has co-chaired the AFL-CIO’s Advisory Council on Racial and Economic Justice, and co-founded the Race-Class Narrative Project.

Interest Convergence Looks Different Today: Talking to Ian Haney López

And of course building momentum for cross-racial class solidarity requires not solely persuading working-class whites to see their own self-interest in such campaigns, but persuading many activists of color to recognize that coalition-building of this sort will provide the most pragmatic means for reversing the mass incarceration, mass deportation, and the systemic public neglect so acutely concentrated in certain black and brown communities. Here could you describe your own sympathetic perspective on, say, young people facing structural discrimination every single day feeling understandably skeptical of a political narrative that frames working-class whites as themselves victims of strategic racism?

....

When politicians campaign by warning about dangerous and undeserving people of color, they govern by building prisons and cutting off needed government protections and assistance. Mass incarceration, mass deportation, public schools starved of resources, welfare and job programs slashed to ribbons — these are forms of violence. And for dog whistle politicians, this is also political theater, the drama that reinforces their campaign lies about threatening and lazy people of color.

To make this a bit less abstract, let’s talk about police violence against black communities, including racialized mass incarceration. How did this arise? The root causes do not point back to a culture of racism among the police (though we do have that). The racial violence produced by our criminal justice system reflects much more than an inheritance from slavery and Jim Crow (though we can make some connections). The broader structures of US racism provide an important background, but only that.

Instead, racialized mass incarceration emerges directly from dog whistle politics — starting with Nixon exploiting “crime,” “thugs,” and “drugs” as dog whistles for dangerous black and brown people. “It’s all about the damn Negroes and Puerto Ricans,” Nixon said after watching one of his own TV commercials on law and order. Then Ronald Reagan and eventually Bill Clinton developed their own campaigns warning voters in coded terms about violent people of color. And immediately upon election, their slogans became real bullets and bars, with both Republican and Democratic officials calling for more and more police, for imprisoning more and more people of color.

Now, is there significant resistance among racial-justice activists to pivoting away from the idea that racism primarily pits whites against people of color — toward this idea that racism primarily constitutes a class weapon used against almost all of us? Yes, most definitely. Many activists have long and bitter experiences with white liberals who proclaim their support for racial justice but do precious little to make this a practical reality, or who actively frustrate movement toward a racially egalitarian society.

But even so, when we recognize that the taproot of government violence against communities of color reaches deep into dog whistle politics, this should impel us to shift our vision of racial-justice organizing. I myself moved into this research because I wanted to contribute in some way to ending mass incarceration. And the reality is that if you want to end mass incarceration (really end it, and instead rebuild devastated communities), then you have to make clear to large numbers of white voters that they have their own interest in defeating dog whistle politicians.

The political coalition that ends government violence against communities of color and instead invests in repair will be (must be) multiracial. People of color by themselves cannot marshal sufficient political power. Now, you can read Bell’s interest-convergence thesis as a moral critique of white communities, as specific to this particular group who will never act on anything except their own self-interest. But that’s not what Bell meant. No racial group is especially moral, or especially self-interested. So instead, Bell intended his thesis to offer a pragmatic analysis about how big change happens, and what is required to move forward, to build sufficient power to end forms of active racism and jump-start progress toward real equality.

May 28, 2020 | Permalink | Comments (0)

Tuesday, May 26, 2020

Have We No Sense of Dignity Anymore? Court Poets and Masters of Platitude Abound in Politics By Chris Ogolla

The following post is by Professor Chris Ogolla (Barry Law).

Famed Boston lawyer Joseph Nye Welch, is remembered for his immortal line to Senator Joseph McCarthy, during the Army-McCarthy hearings in 1954. After Senator McCarthy charged that one of Welch's attorneys had ties to a Communist organization, Welch made the now famous statement, have you no sense of decency?[1] Perhaps we should be asking our politicians and other leaders the question, have you no sense of dignity? A little background will explain this.

Many years ago, I visited a developing country and attended one of its national holiday celebrations. Typically, such celebrations are held in a national stadium with thousands of citizens attending. Some are bused in from different parts of the country. On that day, there was a military parade, songs and dances by different groups, and yes, the long-winding, sycophantic speeches that served as a crowd warm up before the President or dear leader gave his equally long-winding, self effusive speech to the masses. Before the President spoke on that day, each cabinet member (referred to as “minister”) warmed up the crowd by praising the President, using such platitudes as “father of the nation” “dear leader”, “husband-of-all” and “man-of-the-people.”[2]

If you think this only happens in developing countries, think again. On June 12, 2017 an eerily similar scenario played out here in the U.S., when every cabinet member, with the exception of then Secretary of Defense James Mattis, offered similar platitudes to President Trump. “The greatest privilege of my life is to serve as vice president to the president who’s keeping his word to the American people,” intoned VP Mike Pence. “We thank you for the opportunity and the blessing to serve your agenda”, gushed then Chief of Staff, Reince Priebus. “They love you in Mississippi”, sang Agriculture Secretary Sony Perdue.[3] On and on they went around the table.

Was this the beginning of a trend? President Trump has referred to former Attorney General Jeff Sessions as a total disaster.[4] The President has attacked Sessions relentlessly, at one time mocking his Southern accent.[5] In fact an article in Politico noted that “seized by paroxysms of anger, Trump has intermittently pushed to fire his attorney general since March 2017, when Sessions announced his recusal from the Russia investigation. If Sessions’ recusal was his original sin, Trump has come to resent him for other reasons, griping to aides and lawmakers that the attorney general doesn’t have the Ivy League pedigree the president prefers, that he can’t stand his Southern accent and that Sessions isn’t a capable defender of the president on television — in part because he “talks like he has marbles in his mouth.”[6] Yet Sessions has steadfastly maintained his support for President Trump, even though the President endorsed his rival for the Alabama Senate Republican Primary.[7] I now ask Mr. Sessions, have you no sense of dignity, sir?

In his resignation letter to President Trump, former EPA administrator Scott Pruitt stated, “you are President because of God’s providence.” Pruitt also said “it is extremely difficult for me to cease serving you in this role first because I count it a blessing to be serving you in any capacity, but also because of transformative work that is occurring." Pruit used the word bless so many times![8]

In a National Public Radio interview on June 21, 2018, Kate Andersen Brower, author of “First in Line, Presidents, Vice Presidents and the Pursuit of Power” (Harper Collins 2018), noted that in cabinet meetings, Vice President Mike Pence often fawns over President Trump, almost embarrassingly so. In fact CNN has compiled videos of Mike Pence praising President Trump every 3 seconds in most of his speeches.[9] The number of Congressional Republicans who praise the President in these lofty terms are too numerous to include here. It is as if they have an audience of one, the President of the United States.

Which brings me to the central thesis of this commentary, have we no sense of dignity anymore? To survive in national politics, is it a prerequisite to be a court poet and master of platitude? Do the cabinet members and members of Congress need their jobs that bad, that they are willing to grovel and prostrate in front of the President?  A lot of cabinet members and members of Congress are millionaires and some of them billionaires, I presume; do they really need these government jobs? The trappings of power? Have they no sense of dignity?

But there is always a counter argument,  however utopian or dystopian it maybe. Perhaps it is not an issue of dignity, but loyalty to the President. One cannot discount the fact that these leaders respect President Trump and they praise him out of genuine love for him and his policies. Perhaps President Trump deserves respect for achieving such hallowed status among his supporters. If so, he has earned his “street cred” so to speak. Indeed the President never tires of reminding the American people of his unbridled “awesomeness” and how he has made America great again (MAGA). The MAGA slogan, has of course come to mean different things to different people. For example, Professor Jeffrey Omari, writes “For its supporters, MAGA indexes an effort to return to a time in American history when this country was “great” for some—particularly, propertied white men—but brutally exclusionary for others, most notably women and people of color.”[10]

But is there a danger of too much loyalty to the President? Justice Miller aptly observed in United States v. Lee, 106, U.S. 196, 208 (1882) that “[u]nder our system, the people, who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch. The citizen here knows no person, however near to those in power or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered.” Although this case is about governmental immunity, it encapsulates the dangers of too much deference to the government, (read President).

Whereas total loyalty to the President by cabinet and congressional members may or may not pose such great dangers to our system of government, total loyalty to the President by federal judges would be a whole different ball game.[11] In a rare rebuke to the President, Chief Justice John Roberts defended a US District Judge, against the President’s criticisms that the judge ruled against his administration because he was an Obama judge. Said Justice Roberts, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” [12]

Chief justice Roberts’ statements affirms that there is dignity in the judicial branch. As for the other two branches, is there no sense of dignity?

[1]United States Senate. Historical Highlights. June 9, 1954. Have You No Sense of Decency?, https://www.senate.gov/artandhistory/history/minute/Have_you_no_sense_of_decency.htm

[2] Lest the reader think this is unreal, on July 2018, President Trump said that he wants his people to listen to him like North Korean leader Kim Jong Un's people listen to him. Trump said, “Don’t let anyone think anything different. He speaks and his people sit up at attention. I want my people to do the same." See Mac Greenwood, Trump: Kim's people sit up when he speaks, 'I want my people to do the same' thehill.com (06/15/2018), https://thehill.com/homenews/administration/392430-trump-i-want-americans-to-listen-to-me-like-north-koreans-listen-to

[3]Julie Hirschfield Davis, Trump’s Cabinet, With A Prod, Extols the Blessing of Serving Him. N.Y.Times (June 12, 2017).

[4]John Wagner, Trump says he nominated Sessions as attorney general even though he wasn’t ‘equipped’ for the job, Wash. Post (May 8, 2020), https://www.washingtonpost.com/politics/trump-says-he-nominated-sessions-as-attorney-general-even-though-he-wasnt-equipped-for-the-job/2020/05/08/78f369be-912f-11ea-9e23-6914ee410a5f_story.html

[5]Ramsey Touchberry, Donald Trump Mocks Sessions’ Southern Accent in CPAC Speech “I’M Gonna Recuse Myself”  Newsweek.Com  (3/ 2/2019),  https://www.newsweek.com/donald-trump-jeff-sessions-cpac-speech-1349849

[6]Eliana Johnson & Elana Schor, Trump personally lobbying GOP senators to flip on Sessions, Politico.com (August 30, 2018), https://www.politico.com/story/2018/08/29/trump-sessions-firing-senators-white-house-803922

[7]James Arkin, Trump endorses Sessions’opponent in Alabama Senate Primary, Politico.com (March 10, 2020), https://www.politico.com/news/2020/03/10/trump-endorses-sessions-opponent-in-alabama-senate-primary-125316

[8]Justin Wise, Pruitt in resignation letter to Trump: You are president because of God’s providence, thehill.com (July 5, 2018), https://thehill.com/policy/energy-environment/395676-pruitt-in-resignation-letter-to-trump-you-are-president-because-of

[9]Pence takes flattery to a new height, CNN.COM (Dec 21, 2017),  https://www.cnn.com/videos/politics/2017/12/21/mike-pence-flatters-donald-trump-moos-pkg-erin.cnn

[10] See Jeffrey Omari, Seeing Red: A professor coexists with MAGA in the classroom. ABA Journal (July 3, 2019), https://www.abajournal.com/voice/article/coexisting-with-maga-in-the-classroom

[11]See Lee Epstein and Eric Posner, Supreme Court Justices Loyalty to the President, 45 J. L. Studies, 401 (2016) (finding that “justices more frequently vote for the government when the president who appointed them is in office than when subsequent presidents lead the government.”).

[12] Adam Liptak, Chief Justice Defends Judicial Independence After Trump Attacks ‘Obama Judge’ N.Y. Times (Nov 21, 2018),  https://www.nytimes.com/2018/11/21/us/politics/trump-chief-justice-roberts-rebuke.html

May 26, 2020 | Permalink | Comments (1)

Monday, May 18, 2020

Presumed Incompetent II Book Launch (5/21 @ 2pm)

 

The long-awaited sequel to Presumed Incompetent is now out!

The book launch for Presumed Incompetent II: Race, Class, and Resistance of Women in Academia is on Thursday May 21 at 2 pm EST.  Register at https://zoom.us/webinar/register/WN_9YnaRngrSce2gBjL_KuArA 

Purchase your copy of Presumed Incompetent II for 40% off!
Order at www.upcolorado.com and use promo code NIEM20 at checkout. (offer expires 5/31/2020)

 

Presumed Incompetent II Book Talk Flyer

May 18, 2020 | Permalink | Comments (0)

Friday, May 15, 2020

Dismantling The Master’s House: Toward A Justice-Based Theory of Community Economic Development by Etienne Toussaint

Law Professor Etienne Toussaint (UDC Law) recently published a law review article, Dismantling The Master’s House: Toward A Justice-Based Theory of Community Economic Development, 53 U. Mich. J. L. Reform 337 (2019). See abstract below:

Since the end of the American Civil War, scholars have debated the efficacy of various models of community economic development, or CED. Historically, this debate has tracked one of two approaches: place-based models of CED, seeking to stimulate community development through market-driven economic growth programs, and people-based models of CED, focused on the removal of structural barriers to social and economic mobility that prevent human flourishing. More recently, scholars and policymakers have turned to a third model from the impact investing community—the social impact bond, or SIB. The SIB model of CED ostensibly finds a middle ground by leveraging funding from private impact investors to finance social welfare programs within marginalized communities. SIBs seemingly answer the call of local government law scholars of the New Regionalists movement who advocate for governmental mechanisms that facilitate regional cooperation, address equity concerns, and respect local government autonomy. However, this Article argues that the SIB model of impact investing will struggle to advance metropolitan equity due to its grounding in the politics of neoliberalism.

After highlighting limitations of the SIB, this Article links contemporary debates about CED theory to historical contestations within the black community about economically-oriented racial uplift strategies. Placing historical figures, such as W.E.B. Du Bois and Booker T. Washington, in conversation with more contemporary theorists of political philosophy, this Article offers an alternative conceptual framework of CED. Termed justice-based CED, this framing distinguishes a typology of social change that places democracy at the epicenter of the development debate and points toward the political principles of the solidarity economy as guideposts for law reform. The justice-based approach rests upon three core values: social solidarity, economic democracy, and solidarity economy. Taken together, this perspective reflects a vision of political morality that embodies one of America’s most foundational democratic values—human moral dignity.

May 15, 2020 | Permalink | Comments (0)

Wednesday, May 13, 2020

Trump Using Pandemic to Push White Nationalist Election Agenda

 
Trump's latest immigrant ban has little to do with a collapsing labour market during a global pandemic, and everything to do with election year politics.
 
Rather than focus on improving our public health infrastructure and emergency management systems, Trump is exploiting the Covid-19 global pandemic to mobilize his anti-immigrant voter base. His executive order barring issuance of immigrant visas for 60 days is the latest in a string of anti-immigrant executive actions

From building a border wall with Mexico to issuing a Muslim Ban within weeks after becoming president, deporting and excluding non-European immigrants is the only consistent characteristic of Trump's otherwise erratic administration.   

During his presidential campaign, "Make America Great Again" was a rallying cry for his far-right, xenophobic political base. They understand this dog whistle is a promise to 'Make America White Again'. Reversing decades of immigration policies that have brought people from Asia, the Middle East, and Latin America lies at the centre of that white nationalist promise.

Over the past seven weeks, unemployment claims have reached an unprecedented 26 million. The dramatic loss of jobs due to the Covid-19 pandemic has produced an unemployment rate somewhere between 15 and 20 percent. Not since the Great Depression when unemployment reached a whopping 25 percent, has the country experienced such high rates of unemployment.   

Trump's solution is to bar for 60 days parents and siblings of US citizens and green card holders, which constitute 0.0007 percent of the US population of 328 million. In 2019, the US issued 230,000 immigrants visas to siblings and parents of US citizens who are now subject to Trump's 60-day immigration ban.

Thus, Trump's proclamation that entry of "certain aliens as immigrants would be detrimental to the interests of the United States" is simply not supported by the facts.  According to an authoritative report by the National Academy of Sciences, immigrants' economic contributions are hard to replace because many new immigrants take low-skilled jobs that Americans are unwilling or unavailable to take.

Moreover, excluding the tiny percentage of people that would enter the labour market will do nothing to mitigate our economic woes caused by a historic global pandemic. 

What Trump's executive order will do quite well, however, is continue his emblematic strategy of blaming immigrants for America's problems past, present and future. 

The same spurious reasoning was used to justify the Muslim Ban. After only 10 days in office on January 27, 2017, Trump issued an expansive executive order with the expressed intent of excluding as many people from Muslim-majority countries as legally possible. What was the justification back then? Muslims are presumptively terrorists who make our nation less secure. 

Like today's family immigration ban, the government could not produce credible evidence that the hundreds of thousands of individuals harmed by the Muslim Ban had any remote association with terrorism. Indeed, there were already extensive processes in place to screen all immigrant and non-immigrant applicants for national security threats. 

Trump's real motive was to gain political points with his far- right, anti-immigrant base - not to make America safer. 

But there is a method to Trump's madness. For him and his die-hard supporters, making "America Great Again" requires reversing the unprecedented racial demographic changes that will occur in coming decades, strip whites of their majority status for the first time in American history. The thought of one day becoming a racial minority keeps Trump's voter base up at night.

Many Americans voted for Trump because he promised to exclude and deport as many non-European immigrants as possible. Simultaneously, Trump calls for a change in immigration laws to replace family-based immigration with so-called merit-based immigration. Skeptics suspect any such system would disproportionately benefit European immigrants while disadvantaging immigrants from Asia, Latin America, and Africa.

As the economy worsens due to a global pandemic (not immigrants) and Democrats rally around the presumptive nominee Joe Biden, Trump will become more xenophobic and Islamophobic. He will look for every opportunity to feed red meat to his far-right voter base eagerly looking for minorities to scapegoat. 

Americans should brace themselves for more xenophobia from a president who may finally be held accountable for his many failures come November 2020.

-- This article was originally published here in The New Arab.

 

May 13, 2020 | Permalink | Comments (0)

Monday, May 11, 2020

BOOK: Environmental Justice: Law, Policy and Regulation (3rd edition)

In this project with Cliff Villa (New Mexico Law), Rebecca Bratspies (CUNY Law), and Roger Lin (Berkeley), I worked to update the original work by Clifford Rechtschaffen, Eileen Gaua, and Catherine O’Neill.  Professors teaching in this field can request a complimentary copy here. You can also request your library to order a copy. Available on Amazon as well. 

Environmental Justice: Law, Policy, and Regulation explores theory and practice in this dynamic subject, which fuses environmental law and civil rights enforcement. From early concerns over toxic waste in minority communities, environmental justice expanded to consider the range of environmental threats facing poor, immigrant, and indigenous communities; women, children, and seniors; and other vulnerable populations. This third edition provides extensively updated materials to address environmental justice concerns today, including oil drilling in the Arctic, the Dakota Access Pipeline, drinking water contamination in Flint, and the devastation wrought by Hurricane Maria in Puerto Rico. Featuring new chapters addressing disaster justice and food justice, this new edition also expands coverage of environmental enforcement, contaminated sites, climate justice, and environmental justice in Indian country, all with an eye towards identifying modern challenges and available tools for the continuing pursuit of environmental justice.

ENVIRONMENTAL JUSTICE: LAW, POLICY & REGULATION (3rd Edition)

May 11, 2020 | Permalink | Comments (0)

Friday, May 8, 2020

The New Rap Sheet: Prosecuting Crimes, Chilling Free Speech

Rap_on_trial_final
 
Erik Nielson & Andrea L. Dennis, Rap on Trial: Race, Lyrics, and Guilt in America (2019).
 
With the Fourth Amendment gone, eyes are on the First,
That’s why I’m spittin cyanide each and every verse
 

These lyrics from Paris’ 2003 album, Sonic Jihad, seemingly anticipate a future of curtailed free speech for African Americans. The growing practice of using rap lyrics against criminal defendants represents one way this is occurring in the United States today. In the song, the reference to the Fourth Amendment’s absence refers to policies that include aggressive stop and frisk campaigns, the proliferation of “no-knock” warrants, and police shootings of Blacks, among other afflictions. Simply living in a “high crime” area—what is often the hoods, ghettos, and barrios of the United States—is a factor that works to the detriment of the defendant when it comes to police establishing reasonable suspicion to stop, and possibly frisk, an individual. For Paris, this gutting of the Fourth Amendment has cleared space on the chopping block for free speech.

Rap on Trial: Race, Lyrics, and Guilt in America, by Erik Nielson and Andrea L. Dennis, explains how prosecutors use rap lyrics against criminal defendants at trials and sentencings. The book highlights a modern legal tactic that reads like a magic trick. In the hocus-pocus, a prosecutor introduces an author’s poetry into evidence against the author himself, in order to disappear the author into the criminal justice complex. Nielson and Dennis spill the secrets behind this trick, arguing that this “evidence” should be excluded under evidentiary rules. Using lyrics as evidence in this way is bewildering. It effectively treats the defendant’s lyrics as a biography for whatever purpose the prosecution needs. Even more mystifying is that a product of free speech, rap, is being used to curtail free speech itself, which has stark racial implications since the tactic focuses almost exclusively on minority defendants and a predominantly Black art form.

Generally speaking, this book is an interdisciplinary venture that may be situated in the area of studies known as “hip hop and the law.” As such, the book displays sophisticated expertise in both hip-hop culture and the substantive criminal law and evidence law. The foreword by hip-hop artist Killer Mike adds a dose of authenticity and reality, particularly since what is at stake here is not some theoretical musing—for him it is personal. As an artist and activist, he too risks suffering legal consequences for his own writings

Scholars working at the intersection of hip hop and the law have underscored a number of issues. On the music side, the rise of electronic sampling in hip hop has spawned copyright issues, litigation, and developments in law and policy, including changes to the way artists create music. Copyright issues have also arisen in the context of D.J. mixtapes and their distribution by hip-hop D.J.s. Moreover, hip-hop artists have had other run ins with the “law” and have had an uphill battle to speak freely. For example, when the group N.W.A. performed on tour, police were notorious for shutting down the group’s shows if they performed “Fuck the Police.” A few years later, police and their unions would fiercely lobby to have Body Count’s 1992 release, “Cop Killer,” removed from record shelves

The book outlines the various ways that prosecutors use rap lyrics in criminal proceedings. One tactic is to treat the writing as a diary, which is when prosecutors treat a defendant’s lyrics as “rhymed confessions.” When the lyrics were written before the crime, prosecutors treat the lyrics as demonstrating the defendant’s state of mind about the crime and its commission, including motive, intent, and knowledge. Prosecutors have also introduced lyrics to demonstrate evidence of threats made by the defendant. These various strategies of using rap against defendants show a number of ways to exploit the lyrics. The authors give the reader a useful rubric for analyzing court cases described throughout the text. Moreover, they make clear that the treatment of rap as evidence of a threat is somewhat disingenuous, given the nature of hip-hop culture and its historical pedigree of battling and dissing

This point highlights one of the book’s main strengths, the tracing of hip-hop history and how this cultural development helped to quell gang violence. In addition to the various elements that embody hip hop, the authors highlight the rap and musical aspects as critical, since these elements created novel arenas of musical and oratorical competition. This no-holds barred approach to art was a way of sublimating violent gang rivalry, substituting symbolic violence over real violence through modes of “battle.” In the music, rap offered a new space for artists, particularly young black artists, to experiment and express themselves freely—the good, bad, and ugly. And of course, it was a way to make money and possibly escape poverty

By detailing the sociological importance of rap to black culture and the voice it gave to urban youth, the book provides an informed context for considering the malignant impacts of prosecutors using lyrics in criminal cases. Hip-hop music once may have been the ultimate space for freedom of expression. Today, however, that space is under attack like no other art form. “No matter that the music provides public commentary. No matter that punishing it, even indirectly will undoubtedly chill it. No matter that courts are not applying their same faulty logic to other art forms.” (P. 114.

This book is laudable on other counts as well. In its treatment of these complex legal and sociological issues, the work shines with an engaging writing style that is accessible to a general audience. Its thorough research will be welcomed by academic audiences as well, including professional, graduate, and undergraduate students. Not only does this work expose the constitutional and evidentiary flaws in the way the law treats underclass defendants, it also demonstrates the limits of “free speech” for the underclass

The work’s conclusion is plain and simple: rap lyrics have no place in criminal court. From this work’s perspective, the exclusion is necessary to neutralize the onslaught of aggressive prosecutors and questionable “experts” on gangs and rap lyrics who, together, tip the scales against defendants. Although the authors recognize the possibility of reform to these various problems piecemeal, a more effective and efficient solution would be to eliminate the use of lyrics altogether

Among other avenues of redress, the authors propose rap shield rules: legislation that would protect free speech by banning the use of lyrics, videos, and other materials as evidence in criminal proceedings. They espouse expressive speech privileges: legislation that would limit the use of evidence that receives First Amendment protection. They also advocate for more rigorous judicial oversight, such that courts perform their actual function as gatekeeper of inadmissible evidence. Finally, the authors propose an abridged notion of nullification for jurors, such that jurors of a criminal case should refuse or nullify consideration of rap lyrics introduced in criminal court. (Pp. 157-60.)

This book is as fascinating as it is frustrating. In pointing out this legal double standard in the prosecution of ethnic minority defendants, the text likely leaves readers indignant about these prosecutorial practices and court laxity. This is especially true when considering that other musical genres—like country, rock, and death metal—are known for graphic and violent lyrics, yet prosecutors have focused nearly exclusive attention on rappers: “Within the criminal legal process, it has become apparent that rapper defendants are not considered legitimate artists and rap music does not merit the artistic recognition granted to other forms of art. This perspective helps courts justify weaker First Amendment protections.” (P. 114.)

This review was originally published at JOTWELL Criminal Law on 5/7/2020. You can read it here.

May 8, 2020 | Permalink | Comments (0)

Thursday, May 7, 2020

Anti-Asian Racism Must be Stopped Before it is Normalized

 

The scapegoating of an ethnic group during a national emergency has begun. 

Rumours are circulating that Chinese people are spreading the coronavirus in America. School children are bullied for being of Chinese origin. Racial slurs are hurled at people who "look Chinese". Chinese culture is increasingly represented as backward and as a threat to America.  

The predictable consequence is an upsurge in racial violence.

In the most egregious hate crime thus far, an Asian American family, including a two-year-old girl, was stabbed at a Sam's Club Store in Midland, Texas. The attacker admitted to police that he tried to kill them because he believed they were Chinese people infecting Americans with the coronavirus.

We have seen this script before.  

Almost two decades ago, Muslims and Arabs were blamed for the worst terrorist attacks on US soil. In those early months of the national crisis, we failed to thwart anti-Muslim racism before it became mainstream.

During the subsequent "war on terror", Muslim doctors and small business owners who had served their communities for years became targets of boycott campaigns and vandalism. Students whose names were Mohamed, Osama, Hussain, etc were physically assaulted and taunted for months. Women wearing headscarves became afraid of being in public spaces as hate crimes against Muslims skyrocketed. Cab drivers and gas station owners were murdered, some of whom were Sikhs mistaken for being Muslim.

Some Americans either joined in blaming Muslims or excused Islamophobia as a rational response to a national emergency. Too many remained silent. The few who condemned anti-Muslim bigotry mistakenly believed it was a temporary backlash that would eventually wane. 

It was not until January 2017 when Trump issued the Muslim Ban that a critical mass of Americans finally rose up at airports across the country to protest against anti-Muslim racism. But by then, Islamophobia had been normalised.

Just as Muslim and Arab Americans were scapegoated for 9/11, Chinese and Asian Americans are being collectively blamed for the coronavirus pandemic. 

As early as February, Asian Americans started reporting an increasing number of hate crimes. On February 1, a man in Los Angeles verbally accosted a Thai American woman, calling Chinese people "disgusting".

On February 14, a 16-year-old boy in San Fernando Valley in California was physically assaulted by other teenagers who accused him of having the coronavirus solely on account of his Asian American identity. 

By the end of March, xenophobic incidents had occurred across the country, according to a report by the Asian Pacific Policy and Planning Council. Of the 673 cases of anti-Asian discrimination reported on its website between March 19 and 25, 67 percent were in the form of verbal harassment, 23 percent were shunning, and 10 percent were physical assaults.

A Korean American standing in line at a local grocery store, for instance, heard a shopper tell her child they had to move to another line, or they would get sick. A 51-year-old Asian woman at a bus stop in the Bronx was verbally assaulted and hit in the head with an umbrella by three teenage girls as they allegedly shouted: "You caused the coronavirus, b***h."

Sadly, blaming Asians for public health crises has a long history in the US. The undercurrent of anti-Asian racism has always lingered in the backdrop of US national security practices.

Referred to as the "yellow peril", Chinese and other Asians were lawfully excluded from entering the United States starting with the 1882 Chinese Exclusion Act. Asians living in the US could not naturalise as US citizens until 1943.

When the Trump administration refers to COVID-19 as the Chinese Virus, Wuhan Coronavirus, or Kung Flu, these racist framings are not accidental. They aim to distract us from the federal government's failures to prepare for and mitigate this pandemic.  

The same happened after 9/11 when the Bush administration's portrayal of Muslims as terrorists redirected the public's anger at a vulnerable minority rather than a government whose foreign policy had produced instability and violence in the Middle East and Central Asia.

Americans after the 9/11 terrorist attacks were scared. They sought an easy scapegoat to make sense of an unprecedented national crisis; as they do today.

If the months following the attacks are to teach us anything, it is that anti-Chinese racism and xenophobia will increase with time if we do not confront it head on now.  

We must immediately adopt a no-tolerance policy. Not after a few months or a year as the hate crimes escalate, but today. 

Just like we have to act early to fight the spread of the coronavirus, we must act now to fight anti-Asian hate before it can no longer be contained.

-- This article was originally published here on Al Jazeera

 

May 7, 2020 | Permalink | Comments (0)