Keynote Address by Paul Butler1
October 23, 2020
The second day of The George Washington Law Review’s Symposium on Addressing the Crisis in Policing Today: Race, Masculinity, and Police Use of Force in America began with remarks from Jeremy Allen-Arney, the Volume 88 Editor-in-Chief of the Law Review. In his remarks, Allen-Arney quoted the American civil rights activist and writer James Baldwin: “Not everything that is faced can be changed. But nothing can be changed until it is faced.” This quote set the tone for Professor Paul Butler’s powerful keynote address, which encouraged attendees to face difficult truths about our country and its legal system.
While the issue of racism in policing has received a recent spotlight from nationwide protests following the deaths of George Floyd, Ahmaud Arbery, Breonna Taylor, and others, the problems with policing have existed for a very long time. Professor Butler’s address, accordingly, began with a brief history lesson.
Recent studies have shown that when people see a Black man, it triggers a response in the amygdala, the area of the brain associated with fear. But this has not always been the case, noted Professor Butler. Until the Emancipation Era, Black men were often considered comical or heathen—a depiction that was problematic in its own way—but they were hardly perceived to be dangerous. This changed, said Professor Butler, with the end of the Civil War and the passage of the Thirteenth Amendment. Suddenly, depictions of Black men became brutal caricatures that were violent, ape-like, and “lasciviously attracted to White women.” Freed of the physical and legal chains that bound them, Black men were a threat.
These portrayals spread throughout America and persisted through Jim Crow and Thurgood Marshall’s victory in Brown v. Board of Education, 347 U.S. 483 (1954). Primed by these images, the country began to allow the police greater latitude amidst rising insurrections and spikes in crime in urban areas. A large part of that latitude came from the Supreme Court’s landmark decision in Terry v. Ohio, 392 U.S. 1 (1968), in which the Court held that the police can both briefly detain a suspect without arresting him and conduct a bodily search if the police believe the suspect is in possession of a weapon. It is not lost on Professor Butler that this decision was handed down less than a year after the racially charged Detroit Riot of 1967.
Professor Butler pointed out that after emancipation, the civil rights movement, and various changes to the legal system in the 1960s, that there was, in fact, one critical change: increased incarceration of Black men. Of course, Black men are not the only targets of a problematic criminal justice system; immigrants, Latinx populations, transgender communities, and Black women are all targeted as well. But Professor Butler emphasized that focusing on and understanding masculinity is critical to understanding the crisis in policing today.
Professor Butler noted that there are more Black Americans in prison today than there were slaves in 1815. The question in his mind is not whether there is a race and crime problem with Black men at its center, but what the nature of the problem is—and the way one frames the problem changes the solution.
Is the problem with Black men themselves? This view has been espoused by prominent figures—both White and Black—such as journalist and television host Bill O’Reilly (who attributed the race and crime problem to “disintegration of the African-American family”),2 television journalist Don Lemon (who suggested “pull[ing] up your pants” as a solution),3 and even former President Barack Obama (who told 2013 graduates of the HBCU Morehouse College that “[n]obody cares how tough your upbringing was. Nobody cares if you suffered some discrimination”).4 This problem is one that can be solved by fixing Black men, as through programs such as President Obama’s My Brother’s Keeper Alliance.5
Or perhaps, as former New York mayor Rudy Giuliani has suggested, the problem is not over-enforcement of law and order in the Black community, but under-enforcement—a sort of tough love, disciplinary approach. This could be solved, then, by stricter police policies and increased implementation of methods such as stop-and-frisk.
Still others have suggested that the problem is one of basic inequity, caused by poor police/community relations. Professor Butler suggested that this view of the problem is similar to advice about being trapped in a bad marriage: the parties just have to treat each other better. This better treatment, then, could come from increased use of body cameras and improved police training on use of force. He noted that there is a program at Georgetown to this effect that works to provide training for new police officers, particularly with regard to bystander intervention in the event of bad behavior from fellow police officers.
However, Professor Butler, as a former Department of Justice prosecutor, suggested that the problem is much deeper, and much more fundamental. While some of the views and their proposed solutions may serve as limited treatments for the symptoms that plague America, Professor Butler said that the problem is two-fold and comes from the joint and deeply rooted systems of White supremacy and the patriarchy. He said that one can see this in the progression in patterns from slavery to the old Jim Crow to the New Jim Crow. Furthermore, Professor Butler argued that the pattern extends through Supreme Court decisions that have expanded police power within the bounds of the Constitution after Terry through cases such as Whren v. United States, 517 U.S. 806 (1996) (holding that a traffic stop is permissible under the Fourth Amendment so long as the police have probable cause to suspect a traffic violation); Atwater v. Lago Vista, 532 U.S. 318 (2001) (holding that an arrest for a charge not punishable by prison time, such as a violation of seat belt laws, does not violate Fourth Amendment rights); and Scott v. Harris, 550 U.S. 372 (2007) (holding that an officer’s decision to place a fleeing driver at risk of death or serious bodily harm in an attempt to end a high-speed vehicular pursuit that potentially threatened the lives of others was not a violation of the Fourth Amendment).
Worse, Butler suggested, is that the Court understood in those decisions that this expansion of police power—what he called a “superpower”—would be wielded over Black men. For an example of this superpower in action, Professor Butler suggests looking to the Department of Justice report on the Investigation of the Ferguson Police Department.6 Under this prevailing view, the problem is not bad apples ruining the bunch; the problem is that the system is working precisely the way it was meant to. There is nothing to fix because there is nothing that is broken. Professor Butler said that it is unrealistic to look to the Court to save us; instead, he encouraged people to think critically and ask: if the law is about upholding White supremacy, then what purpose does policing serve?
But critical eyes must not stop at questioning; they must also analyze potential solutions. Professor Butler acknowledged that riots and violence against non-humans has sometimes been effective, but quickly decried violence against people on both moral and efficacy grounds. Policies such as affirmative action, the Voting Rights Act, and federal intervention of local law enforcement agencies, on the other hand, offer him guarded hope. After all, these approaches have brought some success, however limited. The approach that Black success can be the key to the externally imposed cage, too, carries some potential (as Beyoncé says, the “best revenge is your paper”). Too many Black lives are being lost, and there is too much Black fear, however, for guarded hope and limited potential to suffice. When all power is in the hands of the police, it must be the police who stop the misapplication of that power. Barring that result, said Professor Butler, perhaps an abolition of the prison system is in order. “What is it we think prison does? Does it keep us safe?” he asked. There is so much ingenuity in the world, he marveled; can humanity’s creativity and intelligence be applied to develop better alternatives to prisons?
Who goes to criminal court in chains should not depend so much on grace, said Professor Butler, mirroring Professor Cynthia Lee’s statement that a justice system applied unfairly is not just at all.7 Perhaps with a little resistance, he suggested, we can turn a system that is partially based on race and class and partially on fortune into one that that is truly just. His eyes shined as he described “a crowd that looked like a miracle” in the protests in Black Lives Matter Plaza in Washington, D.C., and his hope in that moment was a living, breathing thing.
Professor Butler left his audience with much to consider. Regardless of whether or not one agrees with his analysis of the problem or his interpretation of the solutions, he encouraged the audience, as Americans, to dream big; those dreams may just save this country’s soul.
This review was authored by Riven A. Lysander.
- Professor Paul Butler is the Albert Brick Professor in Law at the Georgetown University Law Center. He is the author of Let’s Get Free: A Hip-Hop Theory of Justice (2009) and Chokehold: Policing Black Men (2017).
- Bill O’Reilly: President Obama and The Race Problem, BillOReilly.com (Jul. 23, 2013), https://www.billoreilly.com/b/Bill-OReilly:-President-Obama-and-the-race-problem/945823226264545887.html [https://perma.cc/D4QR-QKMQ].
- Ian Schwartz, CNN’s Don Lemon: Bill O’Reilly’s Criticism Of Black Community “Doesn’t Go Far Enough”, RealClearPolitics (Jul. 27, 2013), https://www.realclearpolitics.com/video/2013/07/27/cnns_don_lemon_bill_oreillys_criticism_of_black_community_doesnt_go_far_enough.html [https://perma.cc/7KDC-5C25].
- Barack Obama, Read President Obama’s Commencement Address at Morehouse College, Time Magazine (June 2, 2016 2:33 PM), https://time.com/4341712/obama-commencement-speech-transcript-morehouse-college/ [https://perma.cc/BY7J-RTJH].
- My Brother’s Keeper Alliance, https://www.obama.org/mbka/ [https://perma.cc/3Q5S-FBT8].
- Civil Rights Div., U.S. Dep’t of Just., Investigation of the Ferguson Police Department (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [https://perma.cc/KPQ8-55FX].
- Butler referenced Justice Clarence Thomas, who, while watching busloads of criminal defendants brought into court almost every day as an appeals court judge, often thought to himself, “but for the grace of God, there go I.” Nina Totenberg, Clarence Thomas’ Influence on the Court, NPR (Oct 11, 2011 3:00 PM), https://www.npr.org/2011/10/11/141246695/clarence-thomas-influence-on-the-court.