PresumedPunishable Sentencing on the Streets

i’m feeling a bit of deja vu doing this

six years ago i stood on a tedx toledo

stage

and called out killings by police

officers as the death penalty on the

streets

i explained that the use of fatal force

by police officers

is an ignored unprincipled and

ultimately unconstitutional form of the

death penalty

it was then and still is my hope that if

we acknowledge death at the hands of

police officers as a sentencing issue

then we can talk about the safeguards

that are usually applied to the death

penalty

in the court system and apply those

sorts of safe regards

to when police officers use fatal force

on the streets so things like the

protection against

being executed when punished that

punishment would be disproportionate

arbitrary or when it would be applied in

an inhumane manner

now at the time i delivered that talk it

was just

one month after a police officer had

executed

michael brown on the streets of ferguson

missouri

in two months since eric garner was

killed

executed by police officers for selling

loose cigarettes on the streets of

staten island

now as i deliver this talk today it’s

been 13 months

since elijah mclean was executed by

police

eleven months since tatiana jefferson

was executed by police six months

since brianna taylor was executed by

police

three months since george floyd was

executed by police

and one month since treyfard pellerin

was executed by police and there have

been

so so many others in the years and the

months in between

alton sterling freddie gray

philando castile beaufemijon

india kager geraldine townsend

stefan clark daniel prude

all from the death penalty on the

streets

but what i’ve come to realize through an

endless stream of media coverage

and social media posts and trending

hashtags

is that what’s happening to black people

across the country

every day is not only the death penalty

on the streets

because sometimes the victims of this

violence

aren’t killed sometimes they’re shot

seven times in the back

but survive and sometimes the terror

isn’t at the hands of police

sometimes the victim is chased down

while jogging by a group of white men

claiming to effectuate a citizen’s

arrest

sometimes the victim is an avid bird

watcher

out for a walk or a couple of friends

waiting in a coffee shop for a meeting

or a tired student resting in a

dormitory

common area and someone decides

that they don’t belong where they are

and that they deserve to be punished for

their presence

this is not just the death penalty on

the streets

it’s sentencing on the streets and when

it comes to living while black in

america

where blackness is the nuisance we

as black people are just presumed

punishable i know you’ve all heard of

the

presumption of innocence it’s considered

one of the most sacred principles of the

american criminal justice system

the long-standing protection that a

defendant is innocent until proven

guilty

in other words the government must prove

beyond a reasonable doubt

that each material element of the crime

of the crime charged has actually

happened

this is a fundamental due process

requirement and due process is a

constitutional requirement

so before we ever get to the punishment

phase of a crime

of a case the suspected individual has

to be charged with a crime

and because they’re protected by the

presumption of innocence

the government has the burden to prove

to a judge or to a jury

which has and the judge or jury has to

believe beyond a reasonable doubt

that the defendant actually committed

every element of the crime being charged

now once that defendant pleads guilty

which sometimes happens or if they’re

convicted of the charge

then it’s only after that conviction or

that admission of guilt that we then

move to the punishment phase

so what’s happening outside of the

courts on the streets every day to black

people in america

is that self-proclaimed prosecutors

juries and judges

are skipping straight to punishment when

you’re when you’re sentenced on the

street

you’re just presumed punishable there’s

no crime charged

and the only one who has to be convinced

of your guilt

is the person inflicting the punishment

or calling the police to do it for them

you know sure people can and maybe in

some cases even should call the police

when they feel they’re in danger

or they believe that a crime is being

committed and of course the police are

empowered to arrest individuals

if they if they have probable cause to

believe that a crime has been committed

but that’s not what i’m talking about

i’m talking about those far

too and too often instances when

police are called to punish people

because it’s just presumed that

punishment is necessary

let me give you an example in a story

reported in 2018

when a yale student at when a white

student at yale

called the police because a black woman

was sleeping in a yale dormitory common

area

she said it was because quote there’s

someone who appeared they

weren’t where they were supposed to be

thankfully when the police showed up

they determined that

this black woman was actually a yale

student

who had every right to take a nap in the

yale

dormitory common area but to this white

student

the black student’s mere presence was

punishable

when a person is presumed punishable the

presumption of innocence hasn’t been

afforded to them

they also lose another important aspect

of the criminal process when this

happens

in a criminal trial the presumption of

innocence also means

that the defendant has no burden to

produce evidence of their innocence

they don’t have to prove that they were

doing the right thing

instead the prosecution has to prove

that the defendant was committing a

crime

but when black people are presumed

punishable and sentenced on the streets

the media coverage and popular dialogue

is all about

what they were doing whether they have a

criminal record

a troubled childhood did they comply

with officers

requests why were they there in the

first place why did they talk back

why didn’t they just cooperate as if to

say the pers if the person just hadn’t

been guilty of something

past or present then things would have

gone down differently

they wouldn’t have been sentenced they

wouldn’t have been

punishable but the truth is

when you’re presumed punishable just by

your very existence

it doesn’t matter what you do you’re

never

doing the right thing you could be

running away

standing still hands up hands on the

steering wheel

reaching for an id reaching for a phone

lying on the ground gasping i can’t

breathe

vomiting and apologizing i’m sorry i

didn’t mean to do that

i can’t breathe correctly you could be

approaching officers

you could have your back turned you

could be

resisting or complying

you could be watching tv on your own

couch

you could be asleep in your own bed

when sentencing is happening on the

streets there are

no elements to prove no elements of a

crime to prove

because we skip right over the

presumption of innocence

charges a trial a conviction

instead the punisher whether it be a

police officer or an everyday individual

acting on their anti-black bias that

person has decided

that it is their duty to inflict

punishment on this black person

who rather than being presumed innocent

is presumed punishable

and then that same person who who’s

acted

as prosecutor jury and now judge

also decides then how much punishment is

appropriate

whether it be just a good scare until

you’re let go

or ketamine to the veins or a bag over

your head while you suffocate

or a knee to the neck

maybe this is where i should tell you

that i’m a sentencing scholar so for my

job in addition to teaching i spend my

time researching and writing about

sentencing issues so in my work i

examine the reasons why lawmakers

prosecutors and judges

seek to impose certain punishment for

certain behaviors that have been deemed

criminal

i’m well aware due to my work i’m well

aware

of the systemic racism that the criminal

justice system has baked into it

criminal sentencing and really the

entire criminal justice system

and so i understand that sentencing in

the courts is far from perfect

the sentencing project has reported that

more than 60 percent of the people in

prison today are people of color

black men are six times as likely to be

incarcerated as white men

and for black men in their 30s about one

in every 12

is in prison or jail on any given day

and this isn’t because black people

commit more crimes

it’s because of anti-black bias studies

have repeatedly shown this

they’ve shown us that even when

convicted of similar offenses

black people receive longer punishment

than their white counterparts or really

people of any other races

and so this bias it doesn’t just affect

judges and prosecutors

and police officers it affects all

americans

implicit bias studies show us that the

majority of americans

hold some sort of negative stereotypes

against black people

and so when it comes to thoughts about

race and crime

evidence shows that americans over

attribute

criminal activity to black people

so also in a study by the sentencing

project it revealed that when asked

about burglaries

illegal drug sales juvenile crimes

that whites overestimated the percentage

of those crimes committed by african

americans

by as much as 30 percent and then across

races

people overestimated black participation

in crime

by over 10 percent now you know this is

no surprise

america was built for us to think this

way that blackness needs punishment

that’s why in 2020 we have to

affirmatively state that black lives

matter

because our history just doesn’t hasn’t

shown that they do

but even if this bias is explainable

that doesn’t make it acceptable

and even though sentencing in the courts

is infected with racism

at least when it happens in the courts

there’s an opportunity

for the charged person to make a plea

to make an argument about the

appropriate sanction

and sometimes an opportunity to argue

that there’s no sanction needed at all

but sentencing on the streets robs

people

of that opportunity it robs them of any

opportunity

the extent of their punishment which

could claim

their very life is in the hands of the

one

who presumed them to be punishable and

worthy of punishment in the first place

worthy of whatever level of punishment

that person

sees as fitting

now it’s not that the police or people

on the streets just don’t know how to be

better

we know how to presume that people are

not punishable

what does a presumption of innocence

look like on the streets

well it looks like this it looks like

walking past

police officers at an emotionally

charged

protest holding an assault rifle and

having those police officers

greet you thank you offer you water

now that’s an example where there were

so so many reasons to be suspicious

and to question the behavior but

whiteness afforded a presumption of

innocence

and so i have to be aware as a black

person that when i walk out onto the

streets

i’m going to be presumed punishable i

know this

i just cannot accept it

so what do we do and i just want to be

clear when i say we

i’m talking about i’m only talking about

those of you who say that black lives

matter

so if you agree that black lives matter

then you must understand

that black people are presumed

punishable and for their lives to really

matter

to save black lives we have to strip

away the power and tools of sentencing

on the streets

now this is what we do in the sentencing

space

right and this is really what calls for

defunding the police are about

they’re about shifting resources to the

more appropriate places

and so in the sentencing reform space

rather than continuing to incarcerate at

rates that

outpace the rest of the world sentencing

reformers try to chip away at mass

incarceration by

reallocating resources to places where

it makes sense

alternatives to incarceration diversion

programs

early release support none of it is

perfect

right but it’s recognizing that

incarceration isn’t always the

right fix for every criminal justice

issue

if it fixes anything at all similarly we

have to admit that policing

isn’t the right answer all the time

racism is not going to go away today or

tomorrow but we can

weaken its resources

when i walk out onto the streets and you

see me

and presume that i’m punishable i want

to be sure that you don’t have

military-like force to exact that

punishment on me

i want to be sure that if you decide to

call the police

to be the punisher for you that you’ll

be

directed to a properly funded non-police

service to deal with the danger that you

think i’m posing

or to properly address the dispute that

you think we’re having

and if the police do show up i want to

be sure

that they know that they won’t be able

to hide their decision to punish me

under the blanket of qualified immunity

or a reasonable fear or no knock warrant

they need to know that if god forbid

they does not decide to punish me

that they will be punished themselves

if they don’t give me the chance to be

charged

properly charged and to demand proof of

those

charges if they decide to just skip over

all of that

and go straight to punishment then they

need to know that they’ll be punished

i want to be sure that

i won’t just be another headline

another debated story line another

trending hashtag

i want to be sure that police officers

will know that they’ll be punished

if they act in a way that is presuming

that people are punishable because when

you’re presumed punishable

it means that your punishers are not

arrested

right because they’re given the benefit

of the doubt it was just an accident

well they were acting reasonably they

were just doing their jobs

i don’t know how to stop anyone from

presuming that i’m punishable

from presuming that any black person is

punishable

but at least if you don’t have the tools

to make punishment decisions

to sentence me on the streets at least

then i can live to keep calling it out

to keep giving it a name others can live

to keep working on it

to keep dismantling it we can live

we can rest

we can breathe without

being punished for it