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We Cannot Prosecute Our Way to Making Black Lives Matter


Kate Levine (@klevine02) is Associate Professor of Law at Benjamin N. Cardozo Law School.

This post is part of a symposium on Black Lives Matters.

Cities across the country are in turmoil after the cold-blooded killing of George Floyd by a Minneapolis police officer. While the protests are motivated by and calling for a range of solutions to the ongoing problem of police brutality, the loudest call is for accountability in the form of criminal charges against the officers involved in Floyd’s death. Already, these calls have born fruit. The Minnesota Attorney General, Keith Ellison, who has taken over the prosecution, announced second degree (felony) murder charges against Derek Chauvin, the officer who killed Mr. Floyd, and through accomplice liability, this murder charge will also apply to the three rookie officers who were present and did not stop Chauvin, their training officer. All four face 40 years in prison if convicted. Meanwhile, protesters, media pundits, and influential celebrities have turned their attention to criminal sanctions as the means for justice for Breonna Taylor, a young black woman who was killed during a botched and likely illegal no-knock raid in Louisville, Kentucky.

In some sense, the notion that a quick criminal legal response is “justice for George” makes perfect sense. For too long police officers have committed violence against poor and marginalized people of color with no consequences. Moreover, there is no “equality under law” in our criminal legal system, which imprisons black Americans at a rate far outstripping white Americans. But for those of us with the privilege and power to take a step back and think before we jump on the criminalization band wagon, it is worth considering both how limited the justice of individual accountability in the form of criminal prosecution will be, and how much police brutality is a symptom and a result of our bloated, racist, and dehumanizing prison industrial complex.

While many say that police are “never” charged. That is not quite true. In fact, in recent years two criminal trials have taken place against officers in Hennepin County, Minnesota, alone. Gilberto Yanez, who was criminally charged after killing legal-gun owner, and black citizen, Philando Castillo was acquitted after a full jury trial. Mohammed Noor, a rookie, Somali-American officer, was sentenced to 12 ½ years in prison after his conviction for shooting Justine Damond, a white woman who had called police to an upscale Minneapolis neighborhood.   Both of these officers, like two of the rookie officers now charged in the killing of George Floyd, are men of color. Thus, to the extent that the public sees these prosecutions as a neat reckoning against white police officers on behalf of people of color, it is just not that simple. In fact, it suggests that, in some cases, the criminal legal system is simply replaying its racial pathologies in the trials of police officers. Similarly, to the extent people believe that criminal prosecutions will bring an end, or even a reprieve, to police brutality, it is time to look again.

If an actual reduction in police brutality and racism in the criminal legal system is our goal, prosecuting individual “bad apples” is not the solution. In fact, these prosecutions may exacerbate the problem, because they allow the mainstream, white public, and the politicians who represent them to rest easy believing that problem police officers have gotten their due. Police brutality is the result of systemic and historical racism, bolstered by the casual racism of everyday citizens, who use the police to solve their individual grudges against people of color, often knowing exactly what that may mean. Police brutality is the result of divestment from education, welfare, and opportunities for people of color in marginalized communities, and the reliance of other institutions, like public schools, on the police to solve the problem of children acting out, acting like children while black.

Without attention to systemic racism in law enforcement and systemic deprivation in society, “justice for George” will become “justice for” the next person of color killed by the police. It’s not hard to understand this point if you look, even cursorily, at the origins of the organized police in America. In the South, organized police grew out of organized white slave patrols. And, in the North, organized police were formed to regulate workers, mainly immigrants who came to work in the cities during the industrial revolution. Is it any surprise then, that this brutal arm of the prison-backed criminal legal system continues to both attract racists to its ranks, and fails to educate its members about anti-racism?

It is so easy to blame the low-level officers who commit these violent acts, while celebrating the police chiefs who kneel for photo opportunities with protesters, but this is exactly the wrong way around. As long as we allow police departments, prosecutors, and politicians to maintain the lie that brutality is the problem of a “few bad apples” and not a fully rotted system, we are sure to see these same actions repeat themselves. Moreover, as Angela Davis notes in her seminal and never-more-important work, Are Prisons Obsolete, once we stop believing that imprisonment is the best, if not only, road to justice, we are forced (or allowed) to “imagine a constellation of alternative strategies and institutions [including] . . . demilitarization of schools, revitalization of education at all levels, a health system that provides free physical and mental care to all, and a justice system based on reparation and reconciliation rather than retribution and vengeance.” To her imagined world, I would add a world free from our reliance on police, and the violence that they bring to so many encounters.

This is why I was so heartened to see another, new response to Floyd’s killing, brought about by the activism of grassroots organizations in Minneapolis. The University of Minnesota and the Minneapolis public school system have moved to sever ties with the Minneapolis Police Department. Motivated by this reaction, activists in Denver, Colorado are asking for the same from their school district. This kind of response, this systemic acknowledgement that institutions cannot and should not rely on the police to intervene against the children and young adults in their charge has true, revolutionary potential. These institutions will face hurdles, they must work out how to deal with disputes, and childish behavior without relying on sluffing these children off on the police, and, in many cases setting them up for a lifetime of contact with the criminal legal system. But, a commitment to doing so is a brave and encouraging step. As a statement, these institutions are actually saying “Black Lives Matter.”

We cannot rely on the criminal legal system to cannibalize itself. Instead, other institutions and citizens must commit to divesting their dollars and their reliance on the police, who have shown time and again that they do not respect black lives. I am cautiously optimistic that the educational divestment from police may be a model we can scale throughout the country. While activists have been calling for divestment from the police for years, this response from large institutions is a sea changing amplifier of this important dimension of the fight against systemic police brutality. It is also the opposite of prosecutorial solutions, which serve instead to prop up and legitimize the very system of state sanctioned violence that led, directly, to the death of George Floyd, Breonna Taylor, and so many other valuable lives.