Justice and the Virus: Racial Patterns

Racism is a shapeshifter. We see it operate in these different forms and mutate much like a disease.

JUNE 03, 2020—"No more Black blood in these streets!" That was among the chants at a march denouncing racist police violence in Brooklyn this week, one of countless such protests taking place across the country. The death of George Floyd—handcuffed, on the ground, while a white Minneapolis police officer pressed his knee into Floyd's neck for close to nine minutes—has triggered a wave of long-held anger and revulsion.

Floyd's death comes in the midst of a pandemic made worse by the same racism that took his life. Vincent Southerland compares the brazen, public manner in which Floyd was killed to a lynching. Southerland is the executive director of the Center on Race, Inequality, and the Law at New York University.

"Racism is a shapeshifter," Southerland tells New Thinking host Matt Watkins, noting it can "mutate like a disease." As that centuries-old disease combines with the novel coronavirus, Southerland considers what effect COVID-19, and the reaction to police violence, might have on the deep racial patterns of the justice system.

The conversation with Southerland is part of New Thinking's series on 'Justice and the Virus.' Hear the first episode asking: just how much has the justice system changed in response to COVID-19? →
 

The following is an annotated transcript of the podcast:

Matt WATKINS: That's what the streets sounded like Monday night in the Bedford Stuyvesant neighborhood of Brooklyn.

This is New Thinking from the Center for Court Innovation. I'm Matt Watkins recording from my home, after curfew, in New York City.

George Floyd died after a white Minneapolis police officer pressed his knee into Floyd's neck for almost nine minutes. His death came in the midst of a pandemic made worse by the same racism that took Floyd's life.

The project of racial control was part of this country's founding. And historically there's been no institution more implicated in that project than the justice system.

On New Thinking, we're asking what that justice system is going to look when COVID-19 ends. Our guest today is Vincent Southerland, the executive director of the Center on Race, Inequality, and the Law at New York University. Southerland is a veteran of the NAACP's Legal Defense Fund and a former public defender.

We spoke on Friday, just hours before the Minneapolis police officer, Derek Chauvin, was charged with third-degree murder [update: upgraded to second-degree murder on June 3] in George Floyd's death. Before we talked about COVID-19, I asked Southerland if he would start by sharing his reaction to George Floyd's death.

Vincent SOUTHERLAND: I think my reaction to what I saw happen to George Floyd, to seeing that officer suffocate the life out of him and kill him, is outrage. I think it's outrage that's felt repeatedly when we see these incidents happen over and over and over again, and the calls for justice are unmet or met with silence.

And you feel incredible heartbreak and pain for his family, for his loved ones, for all those who cared about him, for that community. But the reality is that pain, that heartbreak, that suffering, it just feels unending and unyielding. Police in this country have had a long history of abusing, harming, and killing people of color, particularly black people.

I think there's so many tragic things about the whole incident. Among the most tragic is that as George Floyd is screaming and struggling for his life and repeatedly telling the officer that he can't breathe as he has his knee in his neck for nine minutes, George Floyd doesn't swear at the officer, doesn't call him out of his name.

Matter of fact, a couple of times he says, "Officer," calls him “sir,” pleading and begging, and this police officer just ignores those pleas. And you see bystanders and people start to gather around and they see the same thing happening, and they all recognize what's happening. They all recognize life is being choked out of this man. And they're all telling them to stop. And this officer just ignores those calls.

And to do it in broad daylight, in public, it's the very essence of why lynchings would happen in broad daylight, in public. It's sending a message to everyone in that community that your life, if you're black and you're accused of a crime or thought to have an interaction with the police that would give rise to the accusation of a crime, your life doesn't matter, and that we can take it whenever we want.

That traumatizes everyone. And that's unacceptable. It's unacceptable in a country that claims to have ideals written into its founding documents that talk about the protection of life and liberty and the pursuit of happiness. The gap between those ideals and what we see every day—that gulf is monumental.

I think it's up to us, to all of us, to try and bridge that divide, because this is baked into the American soul, it’s baked into the American psyche. It's part of who we are as a country. And we need to confront that and confront that head-on as part of that process of bringing our ideals in line with the way in which we actually live.

WATKINS: I came across a really powerful quote from Ida B. Wells the other day, the great anti-lynching activist—nineteenth century—who said: change is not going to come and justice is not going to come until we all demand it.

SOUTHERLAND: That's exactly right. This is a problem that we all bear the burden of. I know that Sherrilyn Ifill has talked about this before—the president and director of council of the NAACP Legal Defense Fund—about racism being in many ways a national security threat. It is literally a force that is tearing this country apart at the seams.

Our failures and policy choices, our rampant denial of our legacy of slavery, and Jim Crow and mass incarceration and the racialized nature of all of those institutions and the terror that came with all those institutions.

We continue to go down that road at our own peril, because of the disparities we see in every vector of American life and the type of outrage, the very rightful and righteous outrage, that we see from communities that have been victimized and brutalized by these institutions and systems of oppression and corporations that are profiting off the backs of their livelihood and wellbeing.

And so, we have a lot of work to do, and I think it's up to all of us to take on a piece of that work and shoulder that burden.

WATKINS: Now, I don't want to be accused of trying to look for glimmers of hope in really what can appear to be a pretty pitch-black night right now. But do you see any reasons for a little more optimism right now, I guess, in the sense that the officers have been fired, and that itself is a departure from standard operating procedure.

We've also seen police departments and chiefs across the country denouncing what happened. Do you see that as progress, or is it just evidence of a response that's been forced to adapt, because the video in this case is so stark?

SOUTHERLAND: I do see it as progress. I think part of the fact that that response has been forced upon police departments, and forced upon police chiefs, and forced upon this particular police department, is in some ways progress as well.

I think we would have been hard-pressed to see that type of reaction, but for the activism that took place in 2014, 2015, the rise of the Black Lives Matter movement, all of the advocacy and effort that's been targeted at legislative reform.

It does give me some measure of hope about what's possible. It tells me that the change that we seek is something that we can push for just using the power of our voices and the power of protest and the power of confronting these systems of harm and oppression.

And I think officers and law enforcement understand just how tragic and how terrible this incident is, particularly for probably the average police officer who goes to work and says that he or she wants to do the right thing and serve their community and needs to rely on their relationships and that can be to help ensure that everyone is safe and getting treated in the way that they should be treated.

It's also got to be disappointing in that it's not just a few bad apples, so to speak. And so, I think there's real impetus on their part to speak out when they see that all officer's doing that. 

WATKINS: In response to what happened to George Floyd and others, you're hearing more calls now for defunding the police. I don't think there's a lot of reason to see that happening.

And in fact, if we start looking at how the justice system is responding to COVID-19 in a couple of major cities—New York and L.A.—that have released budgets during the pandemic, we're seeing very minimal cuts to law enforcement, but many other cuts to lots of other places, right, because we're in straitened circumstances. 

SOUTHERLAND: It demonstrates to me that we have learned absolutely nothing from the ramifications and manifestations of the depths of racial and ethnic inequality that we've seen in this country that have not only been exposed by what happened to George Floyd and his murder, but also by the rapid spread of death and disease from COVID-19 and the disproportionate impact that that has on black and brown people.

You think about New York City which is facing anywhere in the range of a $10 billion shortfall. And looking at that dynamic and looking at the way in which people who have been failed by so many institutions throughout their lives—been failed by the schools, failed by employers, or failed by healthcare system, by elected officials—and our responses to those failures have been ramping up law enforcement, building more jails, building more prisons, and locking people away.

And we know that those responses have done absolutely nothing to improve the safety, health, welfare, and viability of these communities. And then we just go back and do more of the same. It's mind-boggling.

The budget proposal itself is literally a blueprint for a community-to-prison pipeline. We are actually building up and scaling up the architecture of an incarceratory state and doing that by cutting all of the services that people need to avoid contact with law enforcement, to avoid going on the road of engaging in criminal activity, and stepping up all the tools in the tool box to hammer people and to flood communities with police, and just deepen the rift of animosity and anxiety and outrage that people feel when they think about the criminal legal system in America and particularly in New York City.

To me, the budget is an incredible disgrace. We know the solutions to these problems is to invest in people and invest in communities. Cutting those investments just doesn't make any sense.

WATKINS: So why don't we just talk a little bit about the changes that we're seeing from the justice system or not in response to COVID-19? Is there somewhere that you've seen the system changing in response to the virus that you find hopeful? Let's start with hopeful.

SOUTHERLAND: It's a mixed bag but, in some prisons and jails, I've seen an increasing number of people being released, in response to COVID-19. New York State, I think, has been very disappointing, at least from the perspective of releasing people from prisons.

We have 43,000 people in our state prisons, and only a handful of those people have been released. And the overwhelming majority of those people who were released, were already going to be released anyways, because they released because they are within 90 days of the expiration of their sentence and had some other medical challenge and are 55 and older and were convicted of nonviolent offenses.

It's a relative drop in the bucket, so to speak, when we think about who's actually facing this virus, who's susceptible to it, and the danger of it spreading and the lethality of it in prisons. But I do think that's one space where at least we've seen across the country, a response by governors and by people in positions of authority and power to try and reduce somewhat these populations. I think that's one piece that gives me some hope when we think about the justice system.

I think the other piece that gives me some hope is that I feel like there's, while we're all kind of quarantined in our houses, it does seem to have been at least a reduction in the number of arrests and the number of interactions between police and communities. That to me at least says that we may not need to have police and we certainly don't need to have police flooding every neighborhood and serving as an occupying force in communities. I think there's value in that response as well.

WATKINS: And then where is somewhere where you see the system most obviously falling short in its response, maybe holding fast to its traditional racial patterns?

SOUTHERLAND: I'd have to almost say, in some ways, the same two spaces that I saw some hope, I see that that hope is dashed by the fact that they haven't gone far enough at all. As I mentioned, our prisons still, we know that in New York they've tested less than two percent of the prison population that determine whether or not they have coronavirus.

So, we don't know the rate of spread of who actually has it, but we do know that it is an incredibly infectious and lethal disease. And in the face of that, the governor has not used his clemency power at all to release anyone from prison. 

Policing and law enforcement continue to enforce social distancing rules in racially discriminatory ways. You think about 80 percent of the arrests for social distancing were of black and Latinx New Yorkers. So, I think some of those patterns remain the same and remain steadfast.

And so I think where there is that layer of hope, maybe in other parts of the country, in New York, that that hope is somewhat dashed by what we're seeing on a day-to-day basis from governor and from law enforcement.

WATKINS: And then you're somebody who thinks a lot about the intersection between technology and the justice system and a lot of the ways in which this machine of technology can be used against black and brown people in the system.

Under COVID-19, we know there are governments around the world who are using technology to track people and to track outbreaks of COVID-19 in ways that raise some very real privacy concerns. 

SOUTHERLAND: My big fear is that as we race to find a cure for COVID-19 and we try and take measures to curtail its spread, that we're going to just welcome the type of surveillance state that has always been used to abuse and harm and surveil black and brown communities.

And so I think my real fear is that the more we turn to technology and we already have this bias about the way in which technology operates, we presume or assume that it's neutral, we presume or assume that it doesn't see or care about race, that it's just a computer trying to figure things out. But the sad reality is that these are just additional tools in the toolbox to be wielded against communities of color who've already been victimized and harmed by law enforcement.

And you can imagine all the types of ways that these types of tools of surveillance can be used in harmful ways. So, think about police using COVID-tracing technology to try and figure out where communities are congregating, where people are.

We already see technology like this being used to try and identify where people who are undocumented might be residing or working or living and to deploy ICE and other types of law enforcement into those communities and into those areas. I fear this is going to be more of the same if we're not careful and thoughtful about how we actually deploy technology.

WATKINS: When I was researching your Center the other day, I came across this great quote from the legal scholar and civil rights lawyer, Derrick Bell, about how “racial patterns adapt in ways that maintain white dominance.” And I'm wondering if you could talk a little bit about why that quote is so important to the work you guys do and maybe how you might see it applying in a kind of post-COVID world.

SOUTHERLAND: Racism is a shapeshifter. We see it operate in these different forms in different ways and mutate much like a disease. That particular quote speaks to the need for creative thinking, the need to understand the way in which this institution of white supremacy operates.

And part of what Derrick Bell was really focused on and thinking about and talking about was this vision of the world where racism is a permanent force—that is something that we cannot escape or eliminate or eradicate. And if you think about the dynamic of racism in that way, in some sense, it can be demoralizing, but in some sense, it can imbue you with a sense of hope about what are the types of tools we can come up with that will confront the challenges we face in the future. And it makes the need to fight that much more powerful and that much more necessary.

And so, I think there is this notion that racism is a shapeshifter that is constantly adapting and changing, but it's our responsibility to understand what it looks like and attack it where it lies, and the law helps perpetuate that, our political systems help perpetuate that, and the structures and institutions that govern us help perpetuate that. But that's all part of the work that we have to do in order to try and challenge the inequity that we see in our world.

WATKINS: Well, Vincent, I want to thank you so much for taking the time to join me today and also for the work of your center. Thanks so much for being here today.

SOUTHERLAND: Of course. Thanks so much, Matt. Really, really good speaking with you. I really enjoyed it and take good care and be safe and be well.