{"id":11232,"date":"2018-10-10T20:45:18","date_gmt":"2018-10-11T00:45:18","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=11232"},"modified":"2018-10-22T13:58:34","modified_gmt":"2018-10-22T17:58:34","slug":"dismantling-the-presumption-of-white-innocence","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/dismantling-the-presumption-of-white-innocence\/","title":{"rendered":"Dismantling the Presumption of [White] Innocence"},"content":{"rendered":"

In<\/span> her speech<\/span><\/a> supporting Kavanaugh\u2019s nomination, Senator Susan Collins\u2019s support turned on \u201c[his] presumption of innocence, and fairness.\u201d \u00a0While Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick were not afforded any semblance of a fair hearing or investigation process, <\/span>millions of people facing<\/span><\/a> the criminal legal system,<\/span> particularly sexual assault survivors<\/span><\/a>, are also never given the same \u201cpresumption of innocence\u201d or fair hearing that Congress fought hard to ensure that Kavanaugh received.<\/span><\/p>\n

In \u201c<\/span>Whiteness as Property<\/span><\/a>\u201d Cheryl Harris writes that \u201cthe 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.\u201d In <\/span>White by Law<\/span><\/i> (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 \u201cpresumption of innocence,\u201d an<\/span> Anglo-American legal maxim<\/span><\/a> embedded in U.S. jurisprudence, as<\/span> constructed specifically to protect whiteness <\/span><\/a>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 \u00a0<\/span>\u201cimperialist, capitalist, white supremacist patriarchy\u201d<\/span><\/a>. Importing this criminal law doctrine, Sen. Collins framed Kavanaugh not being appointed to the Supreme Court for \u201c<\/span>outlandish allegations…without credible evidence<\/span><\/a>\u201d 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. <\/span><\/p>\n

While Kavanaugh\u2019s whiteness was vigorously being protected, Laquan McDonald\u2019s blackness\u2014and the liberation that blackness represents\u2014was on trial in Chicago. [1]. Officer Jason <\/span>Van Dyke\u2019s<\/span><\/a> defense team blamed McDonald for his own death, stating that McDonald\u2019s \u201crage, aggression, violent behavior\u201d and disobedience made him a \u201cbig threat,\u201d to the Police, <\/span>defenders of Whiteness<\/span><\/a>. The defense added that had McDonald lived, prosecutors would have charged him with a crime and \u201cput him back in that cage that they had him in for years.\u201d While<\/span> Van Dyke\u2019s guilty verdict<\/span><\/a> brought some form of redress to Laquan, his family, and community, after the trial, the<\/span> Chicago Fraternal Order of Police<\/span><\/a> returned to business as usual by stating that Van Dyke was a \u201cpolitical prisoner\u201d in this \u201canti-police movement.\u201d This paralleled how<\/span> President Trump<\/span><\/a> and<\/span> Kavanaugh said<\/span><\/a> 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 \u201cthreats\u201d will be \u00a0<\/span>surveilled<\/span><\/a>, <\/span>policed<\/span><\/a>, imprisoned, <\/span>deported<\/span><\/a>, and <\/span>systematically killed<\/span><\/a>. <\/span><\/p>\n

In both cases whiteness was vigorously defended by the system. Both cases also highlight a tale of two worlds: Kavanaugh\u2019s<\/span> elite, barricaded world subsidized to preserve whiteness<\/span><\/a>, and \u00a0a government created \u201c<\/span>ghetto<\/span><\/a>\u201d occupied by police and the carceral state (necessary for the existence of the former). In the end, Kavanaugh\u2019s acts of sexual assault were overshadowed by how his <\/span>conservative jurisprudence <\/span><\/a>bolsters whiteness\u2014by, for example,<\/span> furthering state surveillance programs<\/span><\/a> and <\/span>emboldening the State\u2019s power to commit violence<\/span><\/a>\u2014and, of course, his<\/span> white privilege<\/span><\/a>. Kavanaugh had elite institutional whiteness bestowed on him from Yale, Harvard, and Georgetown Prep. <\/span>Kimberl\u00e9 Crenshaw<\/span><\/a> wrote that both Justice Thomas\u2019 and Kavanaugh\u2019s nomination processes revealed that, \u201cSmarts are seen as somehow an antidote to predation rather than a rationalization of it. Those who create and interpret the law aren\u2019t seen as violators of it, and even those who do violate the law are still elevated.\u201d<\/span><\/p>\n

The story of<\/span> Laquan McDonald<\/span><\/a> 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<\/span> a system designed to exploit their communities<\/span><\/a> and bodies, and funneled into prison through a state-sanctioned<\/span> \u201cchokehold<\/span><\/a>.\u201d [2].<\/span><\/p>\n

While Laquan was criminalized for his use of cannabis to cope with pain, Kavanaugh\u2019s abuse of alcohol was dismissed with the <\/span>logic of \u201cboys will be boys\u201d<\/span><\/a>. While Laquan\u2019s black masculinity prompted<\/span> Van Dyke to preemptively decide to shoot him<\/span><\/a>, Kavanaugh\u2019s<\/span> Trumpian <\/span>white toxic masculinity <\/span><\/a>gave him unfettered power and access to elite institutions. Contrary to Sen. Collins\u2019 statement, this system is not designed to presume non-white people as innocent but rather actively works to deprive them of liberty through<\/span> mass incarceration,<\/span><\/a> extra-judicial police killings<\/span><\/a>, and structural poverty through the<\/span> segregationist construction and maintenance of all US cities<\/span><\/a>.<\/span><\/p>\n

Whiteness is purposefully interwoven into U.S. jurisprudence, yet dominant <\/span>post-racial politics<\/span><\/a> maintains that our system is color-blind and that Kavanaugh\u2019s nomination <\/span>primarily<\/span><\/i> challenges the Court\u2019s legitimacy and reputation<\/span><\/a> of being impartial and neutral. This dominant narrative, also framed by the presumption of white innocence, holds that the <\/span>principles of constitutional law and our laws are neutral and unbiased<\/span><\/a>. Since whiteness is presumed innocent, a system that designed to protect it must also be innocent. This reasoning is<\/span> flawed<\/span><\/a> and only further legitimizes the ongoing U.S. ordinary practices of killing and marginalizing non-white peoples, even at the hands of <\/span>people of color occupying positions of power in this system<\/span><\/a>. This system is not \u201cflawed\u201d or \u201cbroken,\u201d 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 <\/span>From #BlackLivesMatter to Black Liberation <\/span><\/i>(2016):<\/span> \u201cCapitalism is contingent on the absence of freedom and liberation for Black people and anyone else who does not directly benefit from its economic order.\u201d <\/span><\/p>\n

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 \u201cIf there is no struggle, there is no progress.\u201d Today, these words continue to ring true. Charlene Carruthers, founding National Director of<\/span> Black Youth Project 100<\/span><\/a>, <\/span>writes<\/span><\/a> 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, <\/span>community activists still protested<\/span><\/a> 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.” <\/span><\/p>\n

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<\/span> organizers<\/span><\/a> spent years demanding \u201c<\/span>Justice for Laquan!<\/span><\/a>\u201d which led to the <\/span>firing of the Chicago Police Superintendent<\/span><\/a>, resignation of state\u2019s Attorney General,<\/span> Chicago Mayor <\/span>Rahm Emanuel\u2019s decision not to seek another term<\/span><\/a>, and <\/span>shutdowns in parts of the city<\/span><\/a>. Notably, this organizing uncovered how the<\/span> Chicago police <\/span><\/a>went to great lengths to preserve the system and cover up for Van Dyke. During the Kavanaugh nomination process, thousands of<\/span> people organized nationally<\/span><\/a> at<\/span> universities<\/span><\/a>,<\/span> state capitols<\/span><\/a>, 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<\/span> organizing by black women<\/span><\/a>, 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<\/span> connected their struggle with the struggle to Free Palestine.<\/span><\/a> We do so through reparative justice, but more on this next time.<\/span><\/p>\n

 <\/p>\n

Special thanks to Karin Drucker, Mike Banerjee, Sejal Singh, and Connie Cho for their insight in crafting this piece.<\/span><\/i><\/p>\n

 <\/p>\n

Footnotes:<\/span><\/p>\n

[1] In Back to Black: Retelling Black Radicalism for the 21st Century<\/i> (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.<\/span><\/p>\n

[2]\u00a0“Term and analysis coined by Paul Butler in \u201cChokehold: Policing Black Men\u201d (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.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

In her speech supporting Kavanaugh\u2019s nomination, Senator Susan Collins\u2019s support turned on \u201c[his] presumption of innocence, and fairness.\u201d \u00a0While Dr. 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