17 minute read
Race, White Supremacy and Black Liberation
by NYSACDL
by Kenneth Montgomery
Kenneth Montgomery is an adjunct professor at Fordham Law in the trial advocacy department, and a Professor in the Black Studies Department at Brooklyn College. He currently serves as a member of both the S.D.N.Y. and E.D.N.Y. CJA panel and both Capital panels. He also serves on the federal death penalty working group in Washington, D.C.
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COLLAGE ILLUSTRATIONS BY MARLIS KRAFT After originally committing to do the article, I was, for several reasons, a bit hesitant to actually write it. The first reason is that I don’t think it’s the responsibility of Black people to teach, remind or explain to White people how immoral racism is, nor how much America owes its society to the oppression and alienation of Black people in its colonial democracy. Let’s be honest, White people in America don’t have to deal with race as a matter of survival, their privilege ensures that. I was especially hesitant to write something for a readership of mostly White criminal defense attorneys, considering that so many of our clients are Black and Brown and the majority of prosecutors, judges, law clerks and jurors are White. If there is any group of White Americans who are in position to have insight and context to the insidiousness and destructive nature of race in America as applied to Black people, it is the criminal defense bar. You would think so, right!? So many of my White peers have overheard racist dog whistles or overt racism
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from family – friends – colleagues – judges – strangers, and adversaries thr oughout the course of their lives and careers. I wonder how many of my White peers actually have Black relationships outside of their profession and whether those Black presence in positions of prominence does not mean the end of racism and racist policies, nor even changing paradigms in relationships are ongoing American society and in the American or just aberrational? In legal system. many ways, the defense bar is an example of race relations in America. We have a race issue in both the state and federal defense bars across this country. Have you looked at the percentage of Black and Brown Federal prosecutors in the DOJ, appointed Black and Brown District Court judges, Black and Brown attorneys on CJA panel, or Black and Brown Death penalty team members?
Some may associate Black people in those above positions as being a sign of Black excellence, but I’m not one of them. In my experience, the “first Black” rhetoric in America is usually a sign for Black people, as a collective, to raise their antennae and embrace the fact that there are plenty of Black people in America that, not only are comfortable with White supremacy, but are actually advocates and facilitators of it. True Black leadership is not married to American political parties or corporations, nor any ideology for that matter. It is tied to Black liberation and freedom for a group of people that suffer domestically and globally. In my personal experience, simply having Black people in certain positions does not facilitate Black liberation and freedom. After all, White supremacy has always done a very good job of diversifying white nationalism in America. Black presence in positions of prominence does not mean the end of racism and racist policies, nor even changing paradigms in American society and in the American legal system. Black liberation and freedom has little in common with the American electoral system. Electoral politics is simply the mechanism for America to control the narrative to deny the horrible condition that it created for millions of Black people across America.
This society is built on a faulty and illogical premise, not surprising for a society so infused with anti-intellectualism. Here is the basic problem and paradox that America presents as Jack O’ Dell mentions in the book, Climbin Jacob’s Ladder by Nikhil Pal Singh:
“The paradox this presents is one of a nation being born in the fires of an anticolonial revolution while at the same time consolidating its state power and sovereignty on the basis of preserving the slavery variety of colonialism.”
In other words, America got British colonialism off of its back by simply replacing the British colonial overlords with Slave masters, Plantation owners and an entire system committed and dedicated to state-sponsored terror and violence against those of African heritage. The birth of the American Dream and its white nationalistic purpose is permanently tied to the destruction of people of African heritage here in America. The American version of slavery was particularly unique in that it was ultra-violent. That violence was normalized in every area of American society. Violence was the tool that helped facilitate the financial success of America. Cotton was King, and America was willing to dehumanize, torture and subjugate Black people to such a degree that the truth about the atrocities committed to Black people is pretty much removed from American history and its educational system. Our modern criminal justice system is, in many ways, a continuation of that terror reigned upon Black people. Through might, and the buying in of every facet of American life, the American “Rule of Law” and its legal system has been the vanguard for White supremacy and White nationalism. The rule of law, in many regards, is justification that the means which was slavery justified the end, which is American exceptionalism and power. That paradox has always shaped the development of America, and the American legal system has been one of the most brutal mechanisms of White supremacy. The federal criminal bar is a special kind of algorithm, as many of you already know. Any legal system that has a 90% plus conviction rate at trial is less about legal acumen and skills and more about the system itself, a system that has convinced the majority of its citizens and institutions that the presumption of innocence does not extend to its Black citizens. That is accomplished culturally by the information and media institutions, as well as the educational system in America. The results in the courtroom are reflections of a society that is desensitized to Black humanity and personhood.
In the Federal Defense Bar, we are often tasked with representing clients who lead lives filled with tremendous adversity. When you study their narrative and social history, you quickly realize the role that race has had in defining their life circumstances. You understand the symbiotic relationship between American History, trauma, and autonomous choices. You understand the correlative and causal connection between your client’s life and 18 U.S.C. 3553(a). The difficult part comes with educating a jury, but more importantly an Article III judge at sentencing who, in their opinion, has heard and seen it all. How many of us have heard judges and prosecutors both insinuate that others were lucky to get out of your client’s circumstances, inferring that your client could have too, but he or she
I believe in freedom of speech, but I also believe that we have an obligation to condemn speech that is racist, bigoted, anti-Semitic, or hateful. — John Lewis on speech in Walking with the Wind: A Memoir of the Movement
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just made all the wrong choices. Many prosecutors, judges and even jurors are in a position of privilege, many in the defense bar are also a part of that privilege. Often, those of privilege feel personally affronted by a history that connects their privilege to the broken lives of the Black and Brown people they have to judge, prosecute, or represent. After all, if America was truly a meritocracy, then the descendants of slaves would have something to show for it, since no one could possibly work harder than a slave, right? It’s amazing how often in America we hear how hard someone’s ancestors worked when they immigrated to America. Do we ever think about how hard those people of African heritage who actually survived the boat ride here and the plantation must have worked, only to be systematically alienated in a society committed to and preoccupied with their alienation? Hopes and dreams deferred and lives rendered hollow and meaningless.
In most State and Federal Defense Bars across this country, you have a homogenous group of White lawyers with similar life experiences and social synergy, who sometimes are either incapable or unwilling to tell the story of their Black or Brown clients as their allegiance is to the American paradigm and not so much their client. You have some prosecutors who only see Black or Brown as a cancer to an otherwise well-functioning social order. You have some judges who fail to see the complexities in the lives of Black and Brown defendants and have no problem imprisoning them for decades in their protection of the rule of law and maintenance of status quo. You also have some prosecutors and judges who realize it is an imperfect system
Take a long, hard look down the road you will have to travel once you have made a commitment to work for change. Know that this transformation will not happen right away. Change often takes time. It rarely happens all at once. In the movement, we didn't know how history would play itself out. When we were getting arrested and waiting in jail or standing in unmovable lines on the courthouse steps, we didn’t know what would happen, but we knew it had to happen.
and that Black people may be the casualties of that imperfect system, and they follow their intellect and consciousness and do their best to address that in the name of the rule of law. For those at the bottom of America’s social order, the rule of law in practice has always been a concept and mechanism for power and to maintain social order in America. It operates with an iron fist against Black and Brown people. This moment in history reflects just how hypocritical and powerful is the rule of law. The hypocrisy of the rule of law is reflected in this current administration in Washington, which tells us that there is nothing in the rule of law that will allow its citizenry and political apparatus to hold a corrupt leader accountable. Laws will be broken, people will be pardoned, lies will be normalized. The rule of law will be manipulated to maintain the social order of White nationalism in America. The American information system is much more effective at shining a light on looters at a protest than on those looting on Wall Street, corporate America, and those in government looting public funds. Our criminal justice system authorizes the death of its own citizens — mainly based on race, and operates on the raiding of poor communities of color with sweeping RICO indictments and targeted reverse sting operations. These are just a few of this system’s reliable hallmarks of racial discrimination.
Supreme Court Justice Taney was absolutely right when he surmised in the Dred Scott Decision:
“that Blacks had no rights which the White man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, wherever profit could be made by it.”
He further opined … “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration”
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Who knew some 100 plus years later the well-respected Taney would be so accurate? His opinions help you understand how, after Brown v. Board of Education, on the upper west side, White parents align with each other and protest against Black and Brown children coming into their school district. Liberal blue New York has one of the most segregated school systems in the …this isn’t the first time that White people country. Taney’s words shed light on how America is infatuated with Black have stood in line with Black people, that entertainment and sports, and, at has been a phenomenon from the the same time, with the management of Black dysfunction created and Abolitionism period to the civil rights era. perpetuated by White supremacy and White nationalism. Another reason I was hesitant in writing this article is I wanted to avoid the cliche viral nature of this new digital corporate age. After George Floyd’s death, I observed a host of corporations and institutions, many with scandalous racial histories up until 2020, voicing their support of the concept and slogan “BLM”. I saw federal judges author open letters about the racist nature of the legal system ( I read it with my eyes rolled). I observed tech companies like IBM who hardly hire Black tech people change their logo to RED, BLACK, and GREEN (I laughed out loud then rolled my eyes). I saw the NFL, which famously black-balled Colin Kaepernick and suppressed Black consciousness with the support of an American president and its fans, voice support for Black lives after its partner, Jay Z, surmised that we were past protesting. Hell, I was even asked to write this article (don’t think you would be hearing from me otherwise). The list goes on and I can’t for the life of me see how any critical thinking Black person doesn’t see all of it for what it is — an insult to our intelligence and public relations activations based in commerce and capitalism. Do we really believe that White privilege and cognitive dissonance has blinded and prevented White people and American society from being aware of the atrocities of the trans-Atlantic slave trade, the Red Summer of 1919, the Tuskeege experiment, the rape and brutality of Jim Crow, redlining, Slave codes, all the racist laws and policies, (both locally and federally), the effectiveness of de facto segregation, voter suppression, the constant dog whistling in American politics and business, the continued alienation of Black and Brown people socially, politically, academically, and economically?....Call me a cynic but I don’t believe that. When people tell me “but this moment in time feels different, you see how many White kids are protesting?” I’m prompted to remind them that this isn’t the first time that White people have stood in line with Black people, that has been a phenomenon from the Abolitionism period to the civil rights era. Yes, quite a few white people have lost their lives fighting White supremacy, from John Browne to Paul Guihard to William Lewis Moore and many more. Despite White acknowledgement and, in some instances, White alliances, the brutality of White supremacy has remained. In American history, the truth is hardly ever told about whiteness. Most White people in America have no idea about the history of Whiteness pre-America and the development of America. Irish and Italians, along with other Europeans, are
Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.
recent invitees to the Whiteness party. However, many would come to figure out just what it means to be American, which is to hold anti-Black feelings or ideology. Many of us who are trial attorneys and actually pick jurors for a living (no disrespect to my fellow federal trial attorneys, we don’t actually pick federal jurors, the Judge and the Federal System Maybe we should listen to Kwame Ture when does) know how deeply infected this he suggests that White America should look society is because of race. We know that America could never be as great as it within itself and its own humanity to civilize props itself up to be, until it confronts itself, as opposed to civilizing Black and Brown people. its racist past and present. Many of us know that all these diversity panels and committees are still just mechanisms of power for White supremacy to control the narrative on racism. Those panels and committees have been around forever and hardly ever address the underlying factors that perpetuate White supremacy and the system which excludes lawyers like myself and others. The first Black or Brown with an Ivy League education is hardly a formidable response to systemic oppression. It’s just a nice window dress towards the perniciousness of White supremacy. So, no, a group of White kids and young adults trying to weaponize their privilege in protest looks good optically, if you want to believe in the good parts of America, but it won’t dismantle a system that is unrelenting and purposive. So where do the solutions lie for Black liberation and freedom? I think many of the answers lie outside of the rule of law and the legal and political system to which many attorneys are beholden. Our solutions will be found in stakeholders from our communities who are committed to making sure Black and Brown children are not only protected but are given a true intellectual, educational and cultural experience outside of the filter of Whiteness. A paradigm that gives the community a truthful recitation of American history and its place not just in America, but in the world. Educational programs offering mentorship and apprenticeship for the young people, while also facilitating practical solutions that facilitate control of their political and social environment. The end goal is to have communities of color control their own ecosystem, which is really difficult to achieve when you are on the world’s stage and everyone is invested to some degree in your oppression. The innovation and intellect necessary for Black liberation won’t be found in the electoral process or American social activism, it will be found in intelligent radical thought and action, but also, in self-reliance and determination away from White supremacy. That is a thought process that makes most people, regardless of race, uncomfortable. After all, America has spent a lot of resources to destroy any remnants of Black nationalism or Black intellectual thought. So, what are some things that can be done by the lawyers and practitioners in the criminal justice system? Maybe we should listen to Kwame Ture when he suggests that White America should look within itself and its own humanity to civilize itself, as opposed to civilizing Black and Brown people. Maybe, as practitioners, we should be focused on accurately telling the history of our clients and the history of America and how the two intersect. We shouldn’t ignore issues of history and Continued on next page
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race. Maybe we should be making sure our staff, legal teams, capital teams, habeas teams have members who can tell the stories of our clients and who understand race and the Black and Brown experience in America and around the globe. Those are just a few of the things we can do, however, we must all first recognize that the legal system in America is one of the main reasons why we still have a deadly pandemic besides the virus, and that’s the pandemic of White supremacy. We need courageous and intelligent attorneys who are willing to speak truth to power. As criminal advocates and litigators, our opportunity to teach in an insanely inhumane and racist society is one of the most revolutionary things we can embark on. We are positioned between our client, who is often the victim of American terror and history, and a system of judges, prosecutors, and jurors made powerful and privileged because of our clients’ alienation, and the two worlds are more connected than they both would acknowledge. That is a heavy responsibility that exists regardless of whether the most recent Black death at the hands of American law enforcement is captured via someone’s phone for all the world to see. The world has become complicit and complacent to Black death. These grotesque examples on tape and on the news, are paved over by the other, more subtle everyday examples of social, political and economic alienation of Black people. Until those subtle examples are dismantled, we will be in the same perpetual cycle. The dismantling will be uncomfortable, as it should. No matter how uncomfortable America is as a society in dealing with race, it pales in comparison to the millions of Black people that have had their humanity hijacked by the illogical, unreasonable and destructive concept of race that has been perpetuated throughout America’s short history. A
