Unembedding Racism in the Justice System
Air Date: October 18, 2021
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. Thanks so much for joining us today. I’m delighted to welcome our guest, Kristin Henning. She is the Bloom Professor of Law and director of the Juvenile Justice Clinic and Initiative at Georgetown Law and the author of the new Penguin Random House book “The Rage of Innocence: How America Criminalizes Black Youth.” Thank you so much for joining me today, Kristin.
HENNING: Thank you so much for having me, Alexander.
HEFFNER: Kristin, can you tell our viewers and listeners the central thesis, there has been a decades long criminalization of people of color and black youth specifically, what are you arguing about that criminalization in this new book?
HENNING: So, it is both historical and contemporary. So I mean, the central argument is that America has a long history of failing to treat black children like children, from the historical era of slavery when black children were perceived to be the property of the master, continuing through the civil rights era in which, you know, Emit Tills could be lynched without accountability, and into the 1990s, the 80s and the 90s in which black and brown children were demonized, to be quite frank, in the War on Drugs and the War on Poverty, and called superpredators in ways that it made it easy for us to dehumanize. And then all the way to today in which, we live in a society in which the fears that are so deeply embedded about black and brown children. And so my hope with this book is to really shift that narrative, right? It’s to make readers aware of the ways in which we have dehumanizing criminalized, black children, and to help us really revisit and understand that black children are children too, and that adolescence looks like adolescence all over the world. Right. So, yeah.
HEFFNER: That’s very helpful. How did you arrive at the title “The Rage of Innocence?” And I know it’s not always the author, it’s the collaboration between the author and the editor and the publisher, but tell us about that, that title.
HENNING: Absolutely. All of the above, right. I’ll be honest with you. You’re going to get a little inside scoop. I thought years, you know, I’ve been writing this book for about 40 years. I thought the book was going to be called “Arrested Development: From Emmett Till to Tamir Rice.” And a couple of things, one, folks quickly said, but wait a minute, Arrested Development is that TV show. You don’t want anybody to be confused. But I actually thought it was a perfect title for the book, but, you know, I let it go eventually. And you know, even, believe this or not, even the, the notion of from Emmett Till to Tamir Rice, the, the fear and the sense was that people would not remember, would not remember those moments. And so I found that hard to believe, but I ultimately was convinced. And so we arrived at the “Rage of Innocence: How America Criminalizes Black Youth.” And “The Rage of Innocence” is really about the rage that every one of us should have when we deprive any child in this country of the right to be a child.
I mean, we can all think about what it was, what our childhood looked like. We were impulsive, you know. We were sensation seekers, right. We tested the limits and we challenged authority. But we also were creative and resilient, all of the things that make us better adults, right? It’s that experimentation and growth during adolescents that makes us the successful adults that we are today. And so for me, “The Rage of Innocence” is that rage that we should all have when we deprive any child of that. But I will say there was also a nuance to the title, right? So “The Rage of Innocence” is also about the rage that black children have about constantly being perceived as criminal, as dangerous, as outsiders, right? And naturally as human beings, we rebel against that. We push back against that. We resent and we resist those labels that are forced upon us.
And so some of the more nuanced understanding about “The Rage of Innocence,” you know, helps us understand the tension between black youth and police in America is at an all-time high. And understanding where some of that is coming from is really critical, right? It is, you know, police officers, and I use police officers really, I should say, law enforcement and civilians, right. It’s more than just police this book, isn’t solely about police. But it’s the ways in which we, as a society have presumed black children to be dangerous, and black children push back. And they push back in ways that are verbal. They push back by avoidance. They push back, sometimes even physically. And so that’s more of that “Rage of Innocence.”
HEFFNER: Kristin, you, you really believe that the tension is at an all-time high today? I mean, I hear you say that relative to the errors that you described in which the violence was more explicit, but you’re not saying that the violence that’s perpetrated against black youth necessarily is as constant, but that the tension maybe as constant and at that highest peak?
HENNING: That’s such a great question. And a fair one. Because I imagine I will get a lot of people will say, well, wait, you can’t possibly compare this moment to the, you know, the civil rights era when there was a full-frontal explicit attack, you know, against black people and against black children. And what I would say to you is that we have to recognize what’s happening today is a through line, right, from every era of American history. And if we attempt to parse out the differences, right, that we may lose something in that conversation, or you lose something in that debate. And that it looks different today, right? It’s less explicit today. We now talk about implicit bias and blind spot bias today, but I kind of say to you that I think much of the system is, is just as intentional. And is it as explicit, maybe not explicit in words, but it’s just as intentional as it was then. And so, no, we don’t have slavery. No, we don’t have segregated, you know, schools and the like, by law. But we certainly have de facto segregation. We certainly have institutions like the juvenile legal system, right, the court system that prosecutes kids, that arguably is very much the contemporary mechanism, right, for limiting and controlling black youths in our society. And so I would say it is as pervasive. It looks different, but it’s as pervasive. And then the final thing, you know, if I will, what I’ll say about that is the trauma, that the trauma that young black children live with is, again, it looks different, but it’s the same, imagine what it was in the civil rights era, watching, you know, young children water hosed for trying to go to school. And now I turn on the TV and you sit with a teenager, a black teenager, who’s watching, you know, George Floyd die, or Tamir Rice, you know get killed on TV. So is it that different?
HEFFNER: So to me, when, when you identify this is idea of the criminalization, there has been a decades-long political amplification of that criminalization. I mean, it started to come up over the course of, I think the 2016 presidential campaign and again, in 2020, but it wasn’t, we didn’t even revisit that idea of the biases and de facto and de jure criminalization in that Crime Bill of the nineties. And the response now has been culturally to acknowledge that. The culture has to pick up with the law you know, ultimately, but the law is in what place to deal with the criminalization of black youth right now? I mean, when you think of law enforcement and, and the all-time tension, high tension that you identify, there was a strong cultural reaction to Floyd’s murder. But in all honesty, that criminalization is ongoing and probably manifested in a lot of legal proceedings. So how do you change that now?
HENNING: Wow, I mean, we have honestly, quite a long way to go to, jeez, unravel what was the fallout from that superpredator myth. And what many people don’t realize is that virtually every state across the country changed their juvenile justice code in response to the superpredator myth. And those changes looked like making it easier to transfer children to adult court for less serious offenses at younger ages and the like. Almost every state either added or amended a purpose clause to their juvenile justice code to talk about accountability for youth. And so we are so deeply embedded in the fallout from that superpredator myth. And it will take a long time to undo that and unravel what has now become a part of the structural framework that facilitates the disproportionate treatment or punishment, I should say, of black children in legal system.
But your point about culture is an excellent one. I think, you know, the moment or the moments following the death of George Floyd really was a significant cultural moment for so many people. But those kinds of cultural moments are really difficult to translate back into the law, right? To translate back into a 50 states, state by state rescinding of juvenile transfer laws. Now we’re seeing some of it, right. We’re seeing some of it through our Supreme Court rulings now, that, you know, ban mandatory life without the possibility of parole for children and you know, the death penalty for children under a certain age. But even when those changes are happening, it doesn’t address, it doesn’t reduce, at least not to the degree that we would like to see disproportionality, racial disproportionality. So that’s still, we still got another cultural, you know, hurdle to climb.
HEFFNER: Right. Ultimately, Kristin, is it not an economic question? When it comes to, how your children are treated is reflected in what zip code you reside in, in terms of responding to that maturation process of a human being and understanding disciplinary processes with empathy and with the desired rehabilitation outside of the criminal justice system, the way that you talked about so powerfully from the outset here today?
HENNING: So, you know, I think it’s, I think unequivocally class matters and zip code matters. Do I think that it is the end game? Absolutely not, right? We, you know, any number of middle-class African-American youth who live in the suburbs can offer you experiences like I share in my book, right? And the stories that I share it is true are largely from folks concentrated, young people, concentrated in certain neighborhoods, economically impoverished neighborhoods. But that’s not the end game, right. So I think, I think it’s important for us to think about this as a both, and game, right? That zip code matters a lot because zip code dictates where there is an allocation of resource and an absence of resource. So the allocation of resources, the allocation of law enforcement officers to certain neighborhoods is absolutely zip code driven. Right. so hyper surveillance, heavy police presence is clearly evident in certain parts of the city, certain zip codes, based on economics and, and race. But yet at the same time, so much of what we’ve been talking about already is based on a narrative of fear, right? And so that if a, you know, a black middle-class child or were walking down the street or walking in a group with his or her friends, he or she is no more protected by her economic status than, you know…
HEFFNER: Right. Well, I, I think of President Obama’s speech in Philadelphia, when he made reference to how folks would react to him or another person of color walking down the street and relating it to his grandma in the Midwest. And that question that you fundamentally get at, which is, is a person of color today in a zip code, in one zip code who is not reflecting being underserved in any way or disadvantaged, versus someone who is in their either behavior or in their visual appearance, reflecting that they are underserved or disadvantaged. And you’re saying, that’s not really the crux of this. The whole idea of a kind of economically driven discrimination. But it still, it is the case that despite what the prior presidential administration said about, you know, record incomes for people of color or Hispanic Americans, that that disconnect pervades our culture. So that’s why I’m emphasizing it in my question to you not to suggest that your answer, responding to my question is at all you know, not clearly presented. It is, I just wondered if not the economic question, then we’re really just talking about racism still, you know, pure and simple.
HENNING: Yeah. And we are, I mean, we are talking about racism and racism and all of its forms, right? So racism as a function of bias that is so, and I use this word a lot, but so deeply embedded that even folks, right, even those of us who think we are aligned, and even those of us who are committed to race equity and democratic principles still find ourselves right, grabbing the purse or crossing the street when you see a group of young African-American males. So, so it’s, it’s embedded in our biases. It’s embedded in the structural pieces that we’ve talked about, the ways in which the laws are written, the cultural norms and the like, the institutions that were built as a way to control. So it’s, it’s absolutely, we have not moved far enough. We have a long way to go.
HEFFNER: That racism that you’re saying is embedded, it does translate in your mind to the judicial proceedings the way the accused and the accuser are treated. But, talk about, from your book and research about that criminalization of black youth, the idea of criminalizing behavior or actions that are not criminal, but then it results in a criminal procedure and may take years or decades off someone’s life.
HENNING: Absolutely. So I asked people in the book to really remember what it was like to be a teenager, or remember what it was like to raise, you know, a teenager, and in doing so, I asked people to think about what music did they listen to? What clothes did they wear? What friends did they hang out with? What time did they have to come home at night, and whether they whether they made it home in time? You know, what, what did sexual experimentation look like? And, when we do all of that, you can see that what we have accepted as cultural norms, as normal adolescent behaviors, for most youth, we criminalize for black youth. So that’s just one of the ways in which I talk about criminalization, but I want to flush that out. And just to say, just to think about fashion styles, right, like sagging pants. It might not be appealing to the eye. I might not enjoy it. I might not want to see someone’s underwear, but is it criminal?
HENNING: That becomes the question.
HENNING: And there are laws still on the book that makes it a criminal violation to have your pants saggy. And so, you know, you could push back on me on that, but then I ask you to compare that to other fashion styles that we’ve seen throughout history, right? So think about, you know, the hippie era, the tie dye shirts, right. Were associated, right, maybe it wasn’t obscene, but it was associated with young people who, you know, smoked marijuana and got high, and did things of that nature. Think about the Dr. Marten boots, right, very classic, you know, fashion statement, right, for, you know, groups of young people who, of course, you know, many of whom are perfectly wonderful young people, but also for a group of young people who have spewed, you know, hatred, right? So think about the all-black attire that some young people have worn in mass shootings, right? We don’t criminalize those clothing types for anyone else except for African-Americans. And I think about and for African-American children in particular, and I think about, I could go on and on, but like music, right? Thinking about country music, hard rock, metal, all of which has misogynistic, violent themes and terminology, but you ask anybody what’s the most violent music on the planet, and it would be rap, you know, African American culture. So it’s the ways in which, you know, our culture of adolescence is criminalized, right? Young people who have friends, what did you do when you were a kid? You hung out with your friends, you often wore the same clothes, right, same t-shirt and same color shirts. You got tattoos. You called yourself by a group of names, by a name. And you were just friends, right? But we call black children that hang out together gangs, right? And most people think that gang members are labeled such because of their violent tendencies. It’s, you know, the reality is black youth are often treated like gang members just for hanging out in friend groups like the rest of us did. So that’s sort of the culture of adolescence that you, you mentioned, this notion, that’s what we’re criminalizing, that’s not criminal.
HEFFNER: And in terms of moving towards a restorative justice approach and looking at how juvenile justice can operate, and maybe can model different incentives and a different structure of what rehabilitation can mean than when you’re talking about adult offenders you know, is that where the hope lies? You said we have a long way to go when you’re referring to some very antiquated laws that are on the books. Mostly state laws, I would imagine.
HENNING: They are. They are, city, at that, they are city ordinances at that.
HEFFNER: And then when you say racist institutions, too, the racism is embedded in how the judge is responding, how the jury is responding, how the parole or probation officer is responding. You know, where is it most ripe to be trying to diffuse, if not entirely eradicate that embedded racism that still exists when it comes to the grassroots organizing that is going to literally wipe away those antiquated ordinances and laws? Is that where this should be battled?
HENNING: So I think it has got… Our strategy for reform has to be an integrated, coordinated response, from beginning to end. It cannot. I mean, to be honest with you, everybody has got to do one thing, right? We all have responsibility to do one thing, to make a difference and to make a change, at each one of those intervals within the legal system. But we’ve got to do it all at the same time. So that means front-end work you know, doing some significant reform around youth police engagement to reduce the disproportionate arrest of black and brown children. But yes, throughout the system, we can continue to tinker around the edges, right, through legislative advocacy. We are, you know, much of the conversation is about how to offer meaningful fourth amendment protection. So what in the world, you know, is the fourth amendment about? You and I take it for granted, or many people take it for granted, that they can walk about the streets free from police intrusion, right, absent some clear evidence that they’re committing some crime or reasonable suspicion they’re committing crime. But you know, a black child doesn’t live with that freedom. They see a police officer and they’re talked, and they have no choice, right? The reality shows they have no choice, but to comply.
HENNING: So they don’t get the freedom to move about. So part of what I’m saying is, you know, even at that front end, the trial stage, and the judicial interventions is, is really understanding the impact of race, in the legal questions that we answer. But the other really major thing, I think, Alexander in the judicial side is the problem with the adultification of black youth. In other words, you know, research shows that we as a society are more likely to perceive a black child as actually older than they really are. There’s been some fabulous research by Phillip Atiba Goff saying that kids, black kids, look to be 4.53 to 4.59 years older than they are. What does that mean? It means that we’re more likely, psychologically, willing to transfer kids up to adult court, to send children to adult jails, 13, 14, 15 year-olds to adult jails and the like.
HEFFNER: We only have seconds left, but your point is that that’s still happening and no cultural consciousness awakening has changed that fact, that process that you just described, it’s still happening and that’s happening for black children who are being perceived as a black adults and not white children who are perceived as white children.
HEFFNER: And just two quick questions. Would you also say that over these last, let’s say 10 years or last few decades that the public defender system is as broken as it ever had been in terms of serving the needs of underrepresented and you know, underrepresented and underserved?
HENNING: Populations. So, so I guess just on your cultural, I just, I love the way you’re interweaving the cultural and the legal and the like, and they all need to move together. I think culturally, we’re just not aware of the legal nuances. And so even with the cultural shift, we don’t, it’s not translating yet.
HENNING: I think in terms of the public defender system, that’s the system in which I grew up in, we need reform. And I think our public defender community more than ever recognizes the importance of this racial justice question. There are wonderful leaders like Jonathan Rapping with Gideon’s Promise that are really transforming the state of public defense, The National Juvenile Defender Center we partner with at Georgetown to work on raising the level of practice among youth defenders in the court. So it is, you know, it’s broken because of funding, right?
HEFFNER: Right. And then just finally, I’m going to get in trouble here, but finally is that all time high tension also, as it relates to judges and juries, when you talk, is that same tension at an all-time high, meaning that judges and juries and parole officers and probation officers are just as likely to be racist today as they were 10 years ago or 20?
HENNING: I think there’s an awakening. I am, I’m an optimist. And the work that I’m doing now with all of the stakeholder groups from police to judges, to probation, we are seeing a shift. We are seeing folks in positions of power recognize the disproportionality and having a renewed commitment to racial justice reform. Again, my theme, we have a long way to go, but I’m optimistic. And I think things have shifted in the courts a bit.
HEFFNER: Kristin, author of the new Penguin, Random House, “The Rage of Innocence,” thank you so much for your time today.
HENNING: And thank you for having me again. I appreciate the conversation.
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