Dismantling the Presumption of [White] Innocence

In her speech supporting Kavanaugh’s nomination, Senator Susan Collins’s support turned on “[his] presumption of innocence, and fairness.”  While Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick were not afforded any semblance of a fair hearing or investigation process, millions of people facing the criminal legal system, particularly sexual assault survivors, are also never given the same “presumption of innocence” or fair hearing that Congress fought hard to ensure that Kavanaugh received.

In “Whiteness as Property” Cheryl Harris writes that “the law holds to the basic premise that definition from above can be fair to those below, that beneficiaries of racially conferred privilege have the right to establish norms for those who have historically been oppressed pursuant to those norms, and that race is not historically contingent.” In White by Law (2006), Ian Lopez contends that all aspects of our legal system, including legal theories and dominant ideologies of justice, are constructed to preserve whiteness and white superiority. Accordingly, scholars, activists, and people conceptualize the “presumption of innocence,” an Anglo-American legal maxim embedded in U.S. jurisprudence, as constructed specifically to protect whiteness from criminal punishment and deprivation of liberty. Particularly, it is meant to protect all aspects of how whiteness manifests in the U.S. hegemony, which Bell Hooks describes as the  “imperialist, capitalist, white supremacist patriarchy”. Importing this criminal law doctrine, Sen. Collins framed Kavanaugh not being appointed to the Supreme Court for “outlandish allegations…without credible evidence” as an unjust deprivation of his liberty guaranteed by his whiteness, and by extension that of all other people, institutions, and systems benefiting from his appointment.

While Kavanaugh’s whiteness was vigorously being protected, Laquan McDonald’s blackness—and the liberation that blackness represents—was on trial in Chicago. [1]. Officer Jason Van Dyke’s defense team blamed McDonald for his own death, stating that McDonald’s “rage, aggression, violent behavior” and disobedience made him a “big threat,” to the Police, defenders of Whiteness. The defense added that had McDonald lived, prosecutors would have charged him with a crime and “put him back in that cage that they had him in for years.” While Van Dyke’s guilty verdict brought some form of redress to Laquan, his family, and community, after the trial, the Chicago Fraternal Order of Police returned to business as usual by stating that Van Dyke was a “political prisoner” in this “anti-police movement.” This paralleled how President Trump and Kavanaugh said the nomination process was a political hoax orchestrated by the left. These statements reaffirmed two things: (1) the system will always view anyone challenging whiteness as a threat; (2) those making these “threats” will be  surveilled, policed, imprisoned, deported, and systematically killed.

In both cases whiteness was vigorously defended by the system. Both cases also highlight a tale of two worlds: Kavanaugh’s elite, barricaded world subsidized to preserve whiteness, and  a government created “ghetto” occupied by police and the carceral state (necessary for the existence of the former). In the end, Kavanaugh’s acts of sexual assault were overshadowed by how his conservative jurisprudence bolsters whiteness—by, for example, furthering state surveillance programs and emboldening the State’s power to commit violence—and, of course, his white privilege. Kavanaugh had elite institutional whiteness bestowed on him from Yale, Harvard, and Georgetown Prep. Kimberlé Crenshaw wrote that both Justice Thomas’ and Kavanaugh’s nomination processes revealed that, “Smarts are seen as somehow an antidote to predation rather than a rationalization of it. Those who create and interpret the law aren’t seen as violators of it, and even those who do violate the law are still elevated.”

The story of Laquan McDonald resembles that of many black and brown children across the country, who despite being cared for and loved by family and friends, are born into a system designed to exploit their communities and bodies, and funneled into prison through a state-sanctioned “chokehold.” [2].

While Laquan was criminalized for his use of cannabis to cope with pain, Kavanaugh’s abuse of alcohol was dismissed with the logic of “boys will be boys”. While Laquan’s black masculinity prompted Van Dyke to preemptively decide to shoot him, Kavanaugh’s Trumpian white toxic masculinity gave him unfettered power and access to elite institutions. Contrary to Sen. Collins’ statement, this system is not designed to presume non-white people as innocent but rather actively works to deprive them of liberty through mass incarceration, extra-judicial police killings, and structural poverty through the segregationist construction and maintenance of all US cities.

Whiteness is purposefully interwoven into U.S. jurisprudence, yet dominant post-racial politics maintains that our system is color-blind and that Kavanaugh’s nomination primarily challenges the Court’s legitimacy and reputation of being impartial and neutral. This dominant narrative, also framed by the presumption of white innocence, holds that the principles of constitutional law and our laws are neutral and unbiased. Since whiteness is presumed innocent, a system that designed to protect it must also be innocent. This reasoning is flawed and only further legitimizes the ongoing U.S. ordinary practices of killing and marginalizing non-white peoples, even at the hands of people of color occupying positions of power in this system. This system is not “flawed” or “broken,” as liberals argue, it is working as it was designed: to separate, exploit, marginalize, dehumanize, and kill non-white peoples as a necessary mechanism to preserve whiteness. As Keeanga-Yamahtta Taylor writes in From #BlackLivesMatter to Black Liberation (2016): “Capitalism is contingent on the absence of freedom and liberation for Black people and anyone else who does not directly benefit from its economic order.”

In 1857, Frederick Douglass delivered a speech at Canandaigua, New York, where he highlighted how the West Indians who were formerly enslaved fought for their own freedom. Foretelling the Civil War, Douglass said “If there is no struggle, there is no progress.” Today, these words continue to ring true. Charlene Carruthers, founding National Director of Black Youth Project 100, writes that a liberatory movement must challenge the dominant oppressive systems in coalition and see violence inflicted by government and corporations inextricable connected to violence within our homes, communities, and broader society. On the day that Officer Van Dyke was found guilty, community activists still protested to highlight how regardless of this conviction the entire system is still guilty and must be dismantled. From 1492 to 2018, “movement work is spiritual work,” as Carruthers writes, and “there are three collective commitments our movements must take up to regenerate: 1. Building many strong leaders; 2. Adopting healing justice as a core organizing value and practice; 3. Combating liberalism with principled struggle.”

Officer Van Dyke was the first Chicago police officer in 50 years convicted of murder in an on-duty police shooting. This only happened because organizers spent years demanding “Justice for Laquan!” which led to the firing of the Chicago Police Superintendent, resignation of state’s Attorney General, Chicago Mayor Rahm Emanuel’s decision not to seek another term, and shutdowns in parts of the city. Notably, this organizing uncovered how the Chicago police went to great lengths to preserve the system and cover up for Van Dyke. During the Kavanaugh nomination process, thousands of people organized nationally at universities, state capitols, and workplaces, to speak truth to power about sexual assault. When pushed, so many people also went to bat to protect Kavanaugh and the system he represented. Yet, this national organizing, as part of the #MeToo movement and propelled by decades of organizing by black women, is what forced an FBI investigation and stalled the nomination. Both moments, across seemingly separate movements, demonstrate how much organizing it takes to shake the same system, even if temporarily. Following in the black abolitionist tradition, the only way we move forward is by dismantling whiteness and the systems protecting it. We do so by building solidarity between the multiple local, national, and transnational movements led by folx most affected. Like how organizers Chicago connected their struggle with the struggle to Free Palestine. We do so through reparative justice, but more on this next time.

Special thanks to Karin Drucker, Mike Banerjee, Sejal Singh, and Connie Cho for their insight in crafting this piece.

Footnotes:

[1] In Back to Black: Retelling Black Radicalism for the 21st Century (2018) Kehinde Andrews argues that Blackness is “… a rejection of the politics of civil rights, of trying to gain access to a [white supremacist] system that oppress us …and is the call to unite all those of African descent in order to organise a struggle for liberation.

[2] “Term and analysis coined by Paul Butler in “Chokehold: Policing Black Men” (2017) to describe how the criminal legal system and police are fundamentally designed to be oppressive to black men in a way, different, though not unique, from how it’s oppressive to other non-white, -male and -binary folx.