Irish Centre for Human Rights Blog

Guest blog: Penelope (Penny) Andrews, Professor of Law and Co-Director, Racial Justice Project, New York Law School, President, Law and Society Association

It is just over two weeks since the annual meeting of the Law and Society Association, a virtual event which drew over one thousand two hundred participants.  The final plenary entitled, Cry the Beloved Country: George Floyd and America’s Continuing Racial Tragedy, focused on the murder of George Floyd by a Minneapolis police officer.  The title of the panel referred to Alan Paton’s iconic book about apartheid South Africa and the pathos of that country’s balancing of pain and hope.   The speakers explored the excessive force by police against the black community, the devastating impact of the criminal justice system on African-Americans, especially racial profiling, the disproportionate imprisonment of African American men, and a range of other indignities and harms that are regularly visited upon African Americans by law enforcement and others in the criminal justice system.   The discussion explored police reform, especially police training, funding and restructuring and alternatives to the current model of policing in the United States. The video of the proceedings may be found at https://www.youtube.com/watch?v=cOw4EVyL5h0.

The plenary occurred against the backdrop of the global pandemic that resulted in the lockdown of the USA in early March.  As data emerged regarding COVID-19 infection and death rates, it became clear that African-Americans were disproportionately impacted.  For example, in a report by the Centers for Disease Control and Prevention it was noted that among COVID-19 deaths in New York City, death rates among Black/African-Americans were 92.3 deaths per 100,000 population numbers.  These were almost double than that of the white population at 45.2 persons per 100,000 population.  In late April the statistics showed that while making up 33 percent of the population, African-Americans accounted for 70 percent of the dead in New Orleans. 

The recent killing of African-Americans became an additional backdrop for the plenary.  In April, two deaths occurred and surfaced in the media: 25-year old Ahmaud Arbery, an African-American man, was fatally shot while jogging in a small town in Georgia.   In Kentucky, Breonna Taylor, a 26-year old African-American woman, was killed when the police pursuing a no-knock warrant, broke down the door of her apartment in an attempted drug sting against someone else.  And then came the death of George Floyd on May 25^th.  As the world now knows, Floyd was a 46-year-old African-American man who died in Minneapolis, Minnesota after Derek Chauvin, a white police officer, knelt on his neck for almost nine minutes while Floyd was handcuffed face down in the street.  Before his death, Floyd repeatedly said “I can’t breathe”. 

The protests erupted almost immediately and spread throughout the United States at an unprecedented rate.  Today the New York Times reported that protests took place in more than 2000 cities and towns across all 50 states.  As the columnist Charles Blow noted:

People are marching as a way of screaming, a way of exhaling pain, as an enormous group catharsis.  This isn’t only about the pain of police brutality, it’s about all the pain. This is about all the injustice and disrespect and oppression. This is about ancestry and progeny.[1]

Events have unfolded at breakneck speed since Floyd’s death, including daily protests across the country, blanket media coverage, national attention and national conversations involving public and private figures.

We are watching history unfold.   Will this be a history of change or a history of indifference?   Will these momentous events lead to substantive changes or will they result in mere symbolic ones?

What has been particularly astonishing beyond the ongoing protests are the responses to them, including legislative responses, public opinion, institutional responses and cultural representations.  The legal profession, too, has been instrumental in reiterating its commitment to confronting widespread racial injustices.  Bar associations across the country, including the American Bar Association, are advocating and dedicating their resources in profound ways. 

The legislative responses have been numerous.   For example, last week New York State passed a package of policing reforms, including banning chokeholds and opening police disciplinary records.    The Kentucky legislature banned the use of no-knock warrants and the Iowa legislature passed a police reform bill to ban chokeholds and to address officer misconduct.  Several other states have or are in the process of passing similar kinds of legislation.  Even the President finally issued an executive order that acknowledges the institutionalized racism and violence of the police against African-Americans.  [The police killed 1004 people in 2019.   Black people were 24% of those killed, despite being only 13% of the population.]

Of great potential impact is the “Justice in Policing Act” passed by the United States House of Representatives.  Although the Bill still has to pass the Senate, its provisions are potentially far reaching.  They include steps to hold police officers accountable and to reform the current system of qualified immunity, especially for criminal or reckless conduct.  The Bill also provides for independent investigations of patterns of police misconduct and to create a National Police Misconduct Registry, which would track misconduct complaints and disciplinary records.  The Registry would be particularly effective in preventing officers from joining a police department in a different jurisdiction to avoid accountability.   The Bill will also mandate state and local law enforcement agencies to report use-of-force data, broken down by race, sex, disability, religion and age.  Most significantly, the legislation would require mandatory training to address bias and to end racial profiling.

It remains to be seen how transformative these legislative actions will be and whether the political will and energy to have them implemented and enforced will be sustained.   After all, decades later, American society is still struggling to give full effect to the Civil Rights Act of 1964 or the Voting Rights Act of 1965.  Most shocking and disturbing, at the height of the protests on June 12^th, Rayshard Brooks, a 27-year old African-American man, was shot in the back by police in Atlanta, Georgia.

One thing that has been remarkable, however, has been the shift in the American public and their attitude towards the Black Lives Matter movement.   Since the shootings years ago of Trayvon Martin and Michael Brown, and the killing of Eric Garner, and now spurred by the murder of George Floyd, poll analysts have interpreted public attitudes to be more enlightened.  The protests enjoy broad public support and a majority of American voters support the Black Lives Matter movement, a shift from earlier years.   In addition, a large section of American voters harbor unfavorable views of the police and their treatment of African-Americans.  

Leaders in business, sports, entertainment and other areas of American life have been vocal in their support of Black Lives Matter.  In summary, a larger proportion of white American society appear to be coming to terms with the necessity of confronting America’s historical and contemporary stain of racism.

It is hard to tell whether this shift in opinion will last and provide the impetus for fundamental change towards racial justice.   But with Americans going to the polls in November, the possibilities of translating the protests into votes is crucial.  What is especially crucial is electing a President and other representatives with more inclusive messages.  At least in that way, the momentum will not be lost.

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[1] https://www.nytimes.com/2020/06/14/opinion/us-protests-racism.html?smid=em-share