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