Paul Butler is a Consulting Editor to CRIME STORY. He is also a Professor at Georgetown Law, a frequent contributor to MSNBC and the author of Chokehold: Policing Black Men. You can find his contributions to CRIME STORY here.


Kary Antholis:

On today’s podcast we have another in our series of conversations with Paul Butler, Georgetown Law Professor, former US Department of Justice Prosecutor and MSNBC Commentator. Paul also serves as a Consulting Editor to us at Crime Story Media.

In our conversation we revisit the themes and ideas in Paul’s 2016 book Chokehold: Policing Black Men and it’s relevance to the wave of protest, backlash and discussions of reform and revolution in our national approach to law-enforcement in the aftermath of the death of George Floyd in Minneapolis, Minnesota.

Paul Butler, thank you for being with us today. Always good to have you in conversation. But it’s a particularly pivotal and tragic moment that we’re speaking, in the wake of the death of George Floyd and the protests and the show of force by police departments and members of the military over the course of the last week. In the wake of your column for Crime Story this month about the disparity between the way that the President and his cohorts speak of protesters and the Movement for Black Lives on the one hand and members of conservative and reactionary constituencies, I thought it would be helpful to review for our listeners some of the principles and the conclusions that you drew in writing your book, “Chokehold: Policing Black Men.” I wonder if we could begin with why you wrote that book and with you offering us a synopsis or a precis of what you established in that piece of writing.

Paul Butler:

Originally, my book was intended to be a quickie book, a guide to African American men about how to negotiate encounters with their criminal legal process. While I was working on that project, Trayvon Martin got killed in Florida, followed by Sandra Bland in Texas, followed by Eric Garner in Staten Island, Mike Brown in Ferguson. And suddenly, a book telling black men how to act around the police and prosecutors didn’t seem to rise to the level of the occasion. Trayvon Martin didn’t need a male role model, he was on his way home to his dad’s house when he was killed by a neighborhood vigilante. Mike Brown was supposed to start college the week after the police gunned him down in Ferguson.

So when I thought about what was going on in all of these cases, and especially why it was so difficult to get police officers prosecuted, and then when they are prosecuted how difficult it is to get convictions, I realized that the problem wasn’t bad apple cops. The problem was the system is working the way it’s supposed to. When I looked at what I call the “Super powers,” that the Supreme Court has given the police and I look at the politics of the criminal legal process, which in the United States is driven by fear and anxiety about black men, I understood that reform wasn’t working because there was nothing broken to fix. By design, the criminal legal process targets black men and sets us up to enroll us in the system.

Chokehold was, of course, a literal police tactic that caused the death of Eric Garner for selling a single tobacco cigarette. I also meant “chokehold” as a metaphor. A chokehold is what the police use when they are trying to get you to do something. When the police are trying to coerce you, they put you in a chokehold. The problem is you can’t do what they say because you cannot breathe. And that seemed like an apt metaphor for the experience of African American men in the United States.

Kary Antholis:

Can you talk about the way that the criminal legal process has established the black man as a separate entity to be dealt with and how you explore that paradigm in the early chapters of the book?

Paul Butler:

So when you think about stereotypes about black men, it’s interesting to note how they’ve traveled over time. So during slavery, certainly people had stereotypes about African American men. But the interesting thing is that the stereotypes weren’t that we were dangerous or criminal. We were heathens or lazy or comical, but not dangerous. And if you think about the close proximity between enslaved people and white people, it makes sense that white people would not have wanted black men close to their families, their homes, their children, if they thought we were dangerous. So the idea that black men are prone to crime, that didn’t get established in the white imagination until emancipation, and lynching, private justice, vigilantism was the response. That private violence served to have the same control as what slavery had and what eventually the criminal legal process and selective prosecution, selective enforcement ultimately took over.

Everyone now on understands that there’s no one criminal justice system, there are many systems; no one criminal legal process, there are many processes. So in “Chokehold” I look at police use of force continuance. And these are policies that many local police departments have about the kind of force that they’re allowed to use in there. I also looked at Supreme Court cases, which affords the police an extraordinary authority, an authority that they exercise broadly, would be understood as un-American, as anti civil liberties. But because these powers are mainly deployed against black and brown people, the body politic seems okay with them. So I think about a case where a woman in Texas was arrested for driving without a seatbelt. And she tells the Supreme Court that she didn’t understand how she could get arrested for that in Texas because even if she was guilty, she couldn’t go to jail; the maximum punishment was a $50 fine. The Supreme Court said that you could be arrested for anything, even if the punishment didn’t involve jail.

There’s another case in which an 18-year old kid in Atlanta led the police on long chase. They were trying to pull them over for speeding. He didn’t stop until finally the cops decided to use deadly force to stop him. They decided that they were going to push his car, rammed his car over a cliff, which they did. And the question there before the Supreme Court was: can the police do that? Are they allowed to use deadly force when they’re just trying to arrest somebody for speeding? And the Supreme Court said, “Yes, that was perfectly constitutional.” I could go on, but the point is that in these cases, the Court understands the huge authority and discretion that it’s handing law enforcement. But it also understands, because it’s told over and over, including by the parties in the litigation, that these powers will be selectively deployed against black men.

Kary Antholis:

In your column, you cited the fact that the President went to the word “Thugs” immediately in describing the protesters, and in his call for use of force against the protests and to stop the violence that has sprouted up around the protests. You spent a lot of time examining the construct of the “thug” in Chokehold. Can you talk a bit about that construct?

Paul Butler:

Well, we know that “Thug” is a race term. It means, the way the President uses it, black people and brown people, and it’s intended to summon up violent law breakers. And one of the ironies is that most of the protesters don’t seem to be African American. Now a lot of us regard that as progress. One reason why this moment might be different from previous moments is a very diverse set of Americans is rising up, people of all ages, people of all genders, people of all ethnicities. And so when the President is the chief or when he was making it about black men, and he could do that because that resonates with a lot of African American men, our experience is that wherever we go, we’re regarded as corrupt.

And so there’s a lot of social science data that suggests that white people especially are anxious and fearful around black men. Doesn’t mean that white folks don’t have friends who are African American or white folks aren’t capable of being nice. But if we look at the science, one of the things that tells us is that when a white person sees a black man that he doesn’t know, the part of the brain that’s associated with fear is activated. So again, this is just the result of years and years of stereotypes, implicit biases, prejudices about black men. This is the message that we get from our culture, from our law, from our media, and it’s no wonder that a lot of people can’t help absorbing that message.

Kary Antholis:

Could you just lay out the way all of these things have come together traditionally to protect police and law enforcement from scrutiny by the public and the press and whether you think that things are changing, whether you think that the death of George Floyd and the protests that have emerged is an inflection point, or whether you think that it’s going to be kind of business as usual after this wave of protest passes?

Paul Butler:

I’m optimistic, I would say. I’m trying to think of the right word to limit my optimism. I’m pessimistically optimistic because I’ve seen other moments that you hope will lead to reform and transformation, and sometimes there’s limited progress, but then the moment goes away and the impetus for transformation goes away. So it was just three or four years ago that the country was similarly focused on police brutality in the context of the Eric Garner and Sandra Bland and Michael Brown cases. And as a result of that, the Obama administration established a task force on policing, that offered some common sense recommendations about how police could patrol more effectively and gain the confidence of the citizens.

And when the Trump administration came in office, it threw those recommendations in the garbage can. Unfortunately, a lot of the limited progress that we make is quite political. Sometimes it neatly lines up with Democrats’ champion reform, and Republicans being against it, but sometimes again, because of this chokehold, sometimes even Democratic leaders aren’t as progressive on these issues as they need to be. So we have to wait and see whether this is indeed a signal moment that will create transformation, or at minimum lead to the common sense reforms that we know Police Departments all over the country need to implement, and many still haven’t. So whether that will be the result, or whether, on the other hand, President Trump will do something stupid in another arena outside of police brutality, and the country will move on, will extend its focus or change its focus to that next stupid thing the President has said or done.

Kary Antholis:

We’ve seen in the aftermath of the protests a number of instances caught on video of riot police and other members of the law enforcement community engaging in acts of brutality. And one of the things that seems different in the response now is that people are advocating specific actions towards police departments that go beyond the kind of reformed guidelines that you just spoke about that were recommended by the Obama administration, things like reducing the budget of police forces, things like calling out the militarization of police forces, and also things like the extreme ideology of the leadership of police unions. Can you speak a bit about whether those developments are meaningful and, in a larger sense, whether your pessimistic optimism is more optimistic now than it was in 2016 when you wrote “Chokehold,” or whether it’s about the same?

Paul Butler:

So the ideas that the police should be defunded are not new. People have been describing projects like that in various terms for many years. One idea was what’s called “justice reinvestment,” which is to take some of the millions and millions of dollars we spend on incarceration and reinvest that money in public health, in job training, in education, so crime prevention on the front end, rather than the back end. And I think we have to give the Movement for Black Lives and scholars like Michelle Alexander a lot of credit for planting seeds that are fertilizing now, so that when the mayor of Los Angeles, in response to protests, says that he will reallocate some of the money that goes to the Los Angeles Police Department into areas that are more consistent with the community’s needs, there’s a platform for him to do that. There’s a theory, there’s policy. So shout out to the folks in the movement for Black Lives for preparing for this moment.

So part of the pessimistic optimism is the reason that the mayor of Los Angeles is doing that is because it’s the right thing to do, but he’s also doing that because he’s a politician and he understands that’s what his constituency wants. And so this idea that the politics around the criminal legal process might be changing is encouraging. Now again, we know that their qualifications that, despite what we’ve seen the last two weeks, crime is still at near record lows. But we talk about high crime rates and low crime rates and how they come and go. At the moment, we’re still in a low crime rate era, we know that that’s going to change, and when crime goes up then the politics might shift back to more law and order.

But again, there are now factors, coincidence of this widespread public attention to police brutality, people fed up with Trump. Him bringing a lot of young people into a resistance movement, young people who might be more open-minded about crazy sounding ideas like abolishing the police or abolishing incarceration, young people who might want to be part of a project to figure out what that would mean and how it would work. And so I’m a scholar. I believe in the power scholarship, I believe in the power of activism, I believe in the power of art. And a lot of artists, I think of some of your work Kary, some of the stories that you’ve been able to tell about the criminal legal process, and how all of this good work has informed this moment.

Kary Antholis:

I’d like to spend a minute talking about the narratives around the violence that sprouted up around the protests around the country. There seems to be a tension between some of the leadership in protests defending the violence as an expression of the phrase “No justice, no peace.” And on the other hand, there seem to be other leaders who say that what you have here is groups unrelated to the issues at the core of the protests, exploiting opportunistically the protests for their own reasons, whether it’s criminal gangs or radical movements of the left and the right. What’s your perspective on those narratives, and how do you process those facts when you talk about and comment on the violence surrounding the protests?

Paul Butler:

I think we have to be careful how we conceptualize violence and order. So often there’s a rush, when we see looting and property damage, to decry the violence and to talk about restoring order. But that makes it sound like two weeks ago, when to make an arrest for using a counterfeit $20 bill, the cops went up to Mr Floyd’s car and took out the gun and pointed it at Mr Floyd’s head and said, “Put your hands on the steering wheel.” And then, they yanked him out of the car, they put him in handcuffs. I mean, they pressed his body to the ground by the neck and back and legs for 10 minutes until he died. It makes it sound like that’s order. But that’s what we need to get back to and to get these [inaudible 00:29:39] kids throwing bricks at the Target. That’s the problem.

So I think that people of color, especially in low income communities, may experience violence on a daily basis, experience this order on a daily basis, but it’s not experienced or described that way by other folks. So when we think about looting, we can think about all of these rich businesses, rich universities, that when the stimulus package was passed to try to help small businesses and struggling colleges, with the extreme economic consequences of the pandemic. When we think about that, that money grab by all of those rich corporations and rich universities, we should also think of that as looting. Now one doesn’t justify the others, but if I think about who I’m most angry at, I’m going to be angrier at some rich corporation stealing money from struggling small businesses than I am at some teenager running into a store to get some Air Jordans that he couldn’t otherwise afford. He should not do that, but there’s so much to be outraged at in this moment, during these times. I want to reserve my outrage for the real bad guys.

Kary Antholis:

I get that. But I also feel somewhat flummoxed sometimes by the fact that when I speak with members of the law enforcement community, particularly prosecutors that I’m in conversation with periodically, what they go to is that much of the violence, at least here in Los Angeles, was perpetrated by either criminal street gangs that are organized and kind of plan their activities based on where the protests are heading or incendiary groups that are looking to exploit the protests. How do you look at that conversation? Is it that it’s sort of beside the point that the focus we shouldn’t be spending our time looking at that question, the bigger issue is the chokehold?

Paul Butler:

Yeah, that’s what I think. So when there’s a mass shooting, the perpetrator is identified, and the recent trend has been for the media to say the shooter’s name in the beginning of the recording, once that person’s been identified. But when they don’t say the name anymore because they don’t want to give that person any more recognition than they deserve, and they want to appropriately focus the attention on the victims and on the problem, which in the case of mass shooting is usually about gun control and/or about mental health and/or about white supremacy. So I think that’s the approach that I want us to think about. We’ve had 400 years of white supremacy. We’ve had, in just recent months, African Americans being told that we can’t jog in Georgia, we can’t bird-watch in Central Park, we can’t sleep at night in our own beds in Louisville, and we can’t breathe in Minneapolis. So that’s what I want us to remember.

In the past week, we’ve seen the most violent urban insurrections that we’ve seen since the 1960s. They were, of course, much worse in the 1960s, with much more property damage and many more lives lost. But we saw that for a couple of days this week. And now the violence seems to be done, by and large, other than the police violence in responding to the protesters who are ironically protesting police violence. So what I’d like us to do is to not fall into the trap that the President is setting. The President wants us to be really, really scared of the protesters, so scared that we call in the US Army, the National Guard,task forces of local police departments. He wants us to think about that, as opposed to George Floyd, as opposed to the reform that ironically, in their response to the protest, the cops are making it even more clear that they need. So again, I think we should focus on the reform and the transformation, rather than looking at a few bad actors who are trying to get us to focus on them.

Kary Antholis:

One last question: in “Chokehold,” the final chapter is entitled “Unlocking the Chokehold,” and it lays out certain steps in the process of trying to unlock the chokehold. And among those were prison abolition, addressing excessive sentencing, alternatives to incarceration and decriminalization of offenses. Are there any other steps, or is there anything that has emerged in your awareness over the last four years that you would include among the steps necessary to effectively unlock the chokehold?

Paul Butler:

Again I think it’s so important to understand that activists and scholars and policymakers have been talking about how to make police more effective for many years, decades even. And so it’s not like we don’t know what to do in order to improve public safety, in order to get more transparency and accountability from police officers. We know the steps to take, it’s just that until now there hasn’t been the political will to implement them. And so I don’t think I have seen anything that’s been proposed that’s new. We’ve seen a lot of proposals that make a lot of common sense. And in “Chokehold” you’re right, I talk about kind of incremental steps for reform, all the way to transformation, so incremental steps for reform, having way more women officers.

The reality is that women officers don’t use deadly force or non-deadly force nearly as much as male officers. They’re just as good at making cases, at enforcing the law, but they don’t resort to violence nearly as much. So if at least half of police officers were women, that’s an incremental step. Doesn’t mean obviously that there aren’t individual women officers who are brutal. It’s just that, as a black man, I’m safer around a female officer than I am around a male officer. And so all the way from those kinds of incremental steps, and again, at this moment, really not so much seeing new ideas but learning about the importance of the ideas we’ve been talking about for many years, like residency requirements. So in Minneapolis, where Mr. Floyd was killed, just seven percent of the officers live in the city, seven percent. So right there, that’s a recipe for that warrior mentality that we see, this, the police against the citizens, the people they’re patrolling aren’t their friends and neighbors, and that’s how they act when they enforce the law.

Kary Antholis:

Paul Butler, thank you as always for your time and your generous contributions to Crime Story.

Paul Butler:

It’s always a pleasure, Kary.