TRAN SCRIPT “POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J. DAVIS AND SHERRILYN IFILL” Policing the Black Man: A Conversation with Angela J. Davis and Sherrilyn Ifill Moderated by Chris Stone Recorded September 6, 2017 ANNOUNCER: You are listening to a recording of the Open Society Foundations. Working to build vibrant and tolerant democracies worldwide. Visit us at opensocietyfoundations.org. CHRIS STONE: So good-- good afternoon. Good evening. Welcome to the Open Society Foundations. I'm Chris Stone. I have the privilege of serving as President of the foundations, but more more important-- I have the privilege of being friends, colleagues, and-- comrades with-- our two-- our two guests today. I just wanna-- asked-- I wanna make sure those of you-- standing here know there is-- there is another (LAUGH) and full room downstairs. If you want to-- to sit during the program, please-- please make you way downstairs. But happy to have everybody-- everybody here. This is a chance, I hope-- to gather not just to hear a conversation up here on the stage but to work together-- to keep building a movement to-- end-- the racist practices of policing-- that have cost so many lives and that continue to destroy so much hope-- so much community-- so many families-- so many-- so many careers. The-- our-- this is-- a cause, not just a topic. And it's one that has brought many of us here I know-- into this work, into the work we do, and into various ways of pursuing-- the cause of justice, equality, dignity, and life itself. We're joined-- today-- by two old-- friends of mine. Sherrilyn Iffil-- all the way to the-- (LAUGHTER) no. Longstanding, deep, deep-- SHERRILYN IFILL: Seasoned. TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 2 CHRIS STONE: --since we were three. (LAUGHTER) Sherrilyn Iffil is-- a cha-- is probably my boss. she's on the-- Global Board of the Open Society Foundations. But much more important is a champion of justice-- in the United States and internationally. She serves-- as-- CEO of the-- and-- and Chief Counsel I guess-- SHERRILYN IFILL: Director Counsel. CHRIS STONE: Director Counsel of the NAACP Legal Defense Fund-- standing on the shoulders of many great litigators and civil rights, humans rights champions-- immediately succeeding John Payton, a hero to many of us. And-- and Sherrilyn-- has been a professor, has been a writer, has been a crusader, and really has become one of the most eloquent public voices-- on issues of racial justice and injustice in this country-- since taking up her current post. Angela Davis, Amani Davis to her friends and former-- colleagues at the Public Defender Service in Washington, D.C.-- started as a public defender the same year in the same class of five-- or six depending on how you count-- (LAUGH) young warriors in Washington, D.C. in 1982. Amani and I served together as public defenders in Washington, D.C., for several years. I left to pursue justice system reform at the Vera Institute at the same-- roughly the same time she left to work with Reverend Jackson on the Rainbow-- as Director of the Rainbow Coalition. She has-- maintained-- her work both as-- as a campaigner and a political champion-- and a lawyer, and not a law professor for many years. And an author. It is-- these are-- two careers the intersect with the issues we're gonna talk about today in many ways, but- - most immediately-- has-- edited and-- produced an introduction and also one of the-- contributed to one of the chapters in Policing the Black Man. And-- Sherrilyn is author of-- one of the chapters as well. And we're gonna talk for about half an hour among ourselves about-- about-- why they've written this book, about what they're hoping to achieve, about where they see-- opportunities-- for advancement. And then we're gonna open it up and I hope have a conversation-- all together. So Amani, why this book? Why now? Why-- why is this your cause right-- right now? ANGELA DAVIS: Before I answer that question, I wanna thank you, Chris. Because I was reminding him that a few years ago before one word of this book had been written we were at a dinner in-- in Washington, D.C., chatting, and I said, "You know, I'm doing this project. It's gonna be about police and black men." He was like, "I have to have you up to OSF so you can do a talk there." I'm like, "Okay, slow down. I've gotta write the book first." (LAUGH) So you were the first person to really invite me to talk about this. (COUGH) And so thank you so much for hosting this wonderful event. I really appreciate it. So you-- when TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 3 I was approached about-- producing a volume of essays about the many ways that the criminal justice system polices black men, it was really sort of inspired really by all of the horrible, unjustified killings of black men and boys over these past few years, something of course which has been going on since slavery. But so much attention has been paid to it in the past few years because of cellphone videos, et cetera. And so when I was approached about doing it, I just seized the opportunity to do it. Because (COUGH) really there's no issue that I personally care about more than the way that black and brown people are treated in our criminal justice system-- the horrible way that they are treated. And so I seize the opportunity, and as I mentioned, the (COUGH) killings, the awful, repeated killings that we unfortunately have to view over and over again because of-- on video tape that outrage us, that anger us so much, especially when there's no accountability, that's what inspired (COUGH) the book. But really it caused all of the contributors to think about all of the ways that black men and boys are policed but the criminal justice system in-- at every step of the process, arrest through sentencing. So, you know, they're treated worse than any other demographic in-- in our system-- our black men. CHRIS STONE: Well, let me ask you. (UNINTEL PHRASE) Here we are. White man. Two black women having a conversation about policing the black man. So-- part of what you-- part of what all the contributors write about in-- in this volume is actually the-- why this particular-- group, this demographic, as you say, is the spo-- has to be the focus of attention right now. ANGELA DAVIS: Right. CHRIS STONE: You write about that in your-- your chapter, and-- and Sherrilyn, you-- you make a point- - of also-- speaking about the-- the-- the fate and the experience of-- of black women and girls in the system. Maybe you both just say a word about why it was important for you to write-- write this on this particular-- ANGELA DAVIS: Right. CHRIS STONE: --demographic. ANGELA DAVIS: So I-- that question why black men is a good question because certainly black men are not the only people of color that are treated worse than their similarly situated white counterparts in the criminal justice system, right? Black women-- Latinos, Latinas, TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 4 Native Americans-- as-- as are members of the LGBT community are all treated worse in the criminal justice system-- than their similarly situated white counterparts. And so the focus on black men and boys in no way trivializes those experiences, we acknowledge those experiences, but when you look at the statistics just by the sheer numbers, black men are treated worse. And I just wanna share a few statistics. And my memory's not that great, so I-- I wanna get the numbers right. So first of all, black boys are more likely to be referred to the criminal-- to the juvenile justice system than any other children. Black men are disproportionately arrested. African Americans are 2.5 times more likely to be arrested than whites. And 49% of black men, almost half, can expect to be arrested by the age of 23. And just to give you some New York statistics and-- in particular, New York (NOISE) Civil Liberties Union analyzed the N.Y.P.D.'s stop and frisk database, and of course you're all probably familiar with the Floyd case. And this was in 2011. They found that 41%-- 41.6% of all stops were of black and Latino men between the ages of 14 and 24 even though they only make up less than 5% of the population of New York. Black men are more likely to be killed by police officers. 21 times more likely to be killed by police officers than white men. The number of black men in prison or jail, on probation or parole in-- by the end of 2009 roughly equaled the number that were enslaved in 1850. And of course-- black men are disproportionately sentenced to death. So at every-- every step of the way the-- by the sheer numbers. That's why the focus. So it-- it's in many ways unique because of those numbers and unique also because of the history from-- from slavery up to today, which Bryan Stevenson talks about so-- so eloquently in his essay. CHRIS STONE: Yeah. Sherrilyn? SHERRILYN IFILL: So first of all, thank you, Chris, for-- for inviting me to participate. And I'm so grateful to Angela for-- for pressing-- for-- for pressing me to (LAUGH) participate in this-- (LAUGHTER) in this book. ANGELA DAVIS: Of course. SHERRILYN IFILL: And-- and to my coauthor-- Jin Hee Lee, who's the Deputy Director of Litigation at LDF and who really-- was amazing at just making sure we-- we grinded this-- this out. And it was a grind in part because there was a part of it I thought we could write in our sleep, and we chose not to write that. (LAUGHTER) We chose to write something else. And what we wanted to write about because-- I knew that this book was gonna be extraordinary because Angela was editing it. TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 5 Because the subject matter's so important, because the contributors were so extraordinary-- that we wanted to write something that was-- that really sp-- spoke to-- what we grappled with. You know, we didn't wanna write something kind of at arm's length. And what we grapple with, of course, is the rule of law. And how can the rule of law coexist with the statistics that Angela just read? So what are the flaws in the law that-- that-- make these statistics possible to have-- not only be true today, but to have been true for our-- you know, most of our lives and-- and as you say, since slavery. How is that possible? How do those twos coexist? And when you're a civil rights lawyer you're always suspending disbelief, right, because you believe in the rule of law. You're using law. You are counseling your clients to be-- to believe that the legal process has value. You believe that the legal process value-- and you are using it to try and bring about just ends. So it's a very-- existential struggle, you know, as-- (LAUGH) as a civil rights lawyer to grapple with not only the limitations of law but the flaws in the law and to try to identify them. And I think the truth is at every turn-- and this is part of what I think we tried to write about in the book. Because we tried to talk about the way in which just the law of discrimination itself is-- has become so deeply flawed and has been interpreted in such a way that it has so boxed in how we think about what racism or discrimination looks like by this endless search for evil white people. That you have to be able to prove the, you know, intent, the-- the bad heart of the person committing this terrible act. And so that you can have outcome, after outcome, after outcome that produces the results that Angela talked about. And it can have no legal significance until you can find the actual actor who at this point has to have used the N- word and maybe, like, enslaved you to actually be (LAUGHTER) considered racist. So why is that? And I think to go back to Chris' question, it's because everything about the criminal justice system is warped by the stereotype and trope about who the black man is. And the warping of that and the use of that trope, and the-- and the use of that trope to sift, to be the colander through which the criminal justice system-- expresses itself and has meaning for me is the reason why this book is Policing the Black Man. Because it's not just actually about black men. It's about actually how the use of the stereotype and the trope about the threat of the black man allows the criminal justice system and allows our society to allow the criminal justice system to commit the kinds of excesses that it does. And because that trope is so powerful and that stereotype is so powerful and has so deeply infused our society at so many levels, (COUGH) it has actually warped the rule of law. CHRIS STONE: I-- (CLEARS THROAT) I-- you write-- in-- in your-- in the chapter you've done about-- you ask the question-- in terms of the-- the-- the movement for black lives-- SHERRILYN IFILL: Do black lives matter to the courts? CHRIS STONE: Do black lives matter to the courts? And I-- I got to that part in the book, and I'm reading, and I'm reading page after page, and the answer clearly is no, right? Because you just-- you catalogue one disaster after another in American jurisprudence where TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 6 there's hope for a moment, it's dashed back. Where there's progress, it's then reversed. And then you get to the end and you have this wonderful-- invocation of justice (UNINTEL) and-- and her dissent, which you argue makes a difference. Can you say a little bit about-- about how against that history one dissenting voice-- can-- can make a difference? SHERRILYN IFILL: Well, this is where the suspending disbelief. (LAUGHTER) You know, one of the most sobering things you can do is to read-- cases, particularly Supreme Court cases, in which they will narrate facts that are so awful, you know, that describe something that happened to-- an African American man in custody, an African American man who was wrongly accused of a crime-- an African American man who was subjected to a criminal justice system that was blatantly racist. An African American man who was railroaded. An African American-- American man who was lynched. And you'll read all the facts, and then you'll get to the conclusion of the case. And the conclusion of the case is (LAUGH) that, like, nobody's to blame. ANGELA DAVIS: Right. SHERRILYN IFILL: Nobody's at fault. You know, Connor vs. Thompson. Like, he doesn't get any money for having been, you know, on death row for 14 years, but too bad, so sad. But you read this whole thing, and then you get to the conclusion. It's, like, how do these two pieces got together? And, you know, Thurgood Marshall was, you know-- a great dissenter, right? He was someone who used his voice on the court and his position on the court to speak a very powerful truth. And there's always the question about whether that matters. You know, if you don't win, does it actually matter? And I think it does matter very, very powerfully. And when Justice Sotomayor wrote this dissent in Utah vs. Strife, and, you know, people talked about how she-- you know, she talked about Black Lives Matter, and she quoted James Baldwin, and a few other fantastic-- ANGELA DAVIS: Ta-- I think Ta-Nehisi Coates. SHERRILYN IFILL: Ta-Nehisi Coates. Oh, it's-- it's awe-- it's awesome. You should read it. (LAUGH) You know, and so people were kind of focused on those elements, but she was really talking about the reality of the criminal justice system and what we know about it in the lives of black people. And what she was saying as a justice sitting in the United States Supreme Court is that this is a matter of justice and democracy for this country. This is-- if there's one, you know, thing that I think makes it important when any judge does it-- and-- but certainly most importantly-- a justice on the Supreme Court, is because they are signaling to you that we have a democracy problem, not a black people problem, you know, and not a race problem. Which allows people to feel some distance TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 7 from it. It allows people to feel like this is about those people. It allows people to feel like, "I'm not a civil rights lawyer, so it doesn't really matter." You know, when in dissent they set forth something like that and as powerfully as she does and as so often Justice Marshall did, they are signaling to the country that this country has a democracy problem. Now, whether or not people choose to embrace the significance of that is up to them. But truthfully-- I think over the last-- certainly over the last five years, particularly as it relates to the issue of policing and African American men, I think most people would agree we have a democracy problem. Many people would disagree about the degree of it-- about how to solve it. I mean, I think there are lots of things we could-- you know, we could talk about, but you couldn't survive that week, (LAUGH) you know, in which all Alton Sterling was killed in-- in Baton Rouge, Louisiana, and not even 24 hours later Philando Castile-- ANGELA DAVIS: Philando Castile. SHERRILYN IFILL: --was killed in St. Paul. I mean, you know, I've seen problem more videos than anybody in this room, not just of the deaths, but, you know, I-- some of the cases that keep my up. There's one actually from South Carolina-- you know, an assault that just makes-- you know, those are the-- there are many-- that stay in my head that for-- you would say, you know, there-- you've seen worse, but sometimes they're just-- they're-- they're encounters of such incredible indignity that you just can't get past it. That-- that 24 hour period, (COUGH) you know, in which-- when I was online, you know, shutting down the computer after seeing the Alton, you know, Sterling video from the sixth angle-- 'cause we try to watch 'em from all the angles so that we know what we're talking about, you know, so that I'm true to the LDF brand-- (LAUGH) and our whole team was just like, "We've had it." And I remember there was another angle, and-- somebody on our team said, "You know what? I can't watch anymore." (PING) And I-- and I said-- "You know, go to bed. You just go to bed." And so I'm typing up my last email, and I'm shutting down the computer, and what pops up on Twitter is there-- there's another (LAUGH) killing. And I looked at the date 'cause I thought, "Oh, this must be an old tweet that somebody retweeted from-- but no, it was a new tweet. And other folks on my team said, "You know, we heard there's another video." And so as I'm tracking it down and I find the face-- you know, the Facebook video from Diamond Taylor, the fiancé of Philando Castile, narrating the death of her fiancé in this car. And I emailed my team and I said, "There is another video. I've watched it. Don't watch it, and we'll talk in the morning." And I stayed up the-- that whole night. If you just kind of, like, were in that (COUGH) period and you think you came out of that and you don't think that there is some problem, (LAUGH) there's nothing I can do to convince you. TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 8 And-- and I'm at peace with you because, you know, we-- there's no point in me wasting time. I think most people realize that there is a problem. And so to have Justice Sotomayor affirm that, this is not just about people in the street, you know, this is-- this is really about the core of who we are and about the rule of law in this country I think was incredibly important. And I do believe in the long arc of this work. And there will be change-- not fast enough, but there will be. CHRIS STONE: You Know, I think one of the things both of you do in the book is you-- you're speaking about the courts. You're speaking mostly about prosecutors in your-- in your chapter. The-- you've captured the fact that policing-- in this country and policing and race have come to define the-- and stand for the whole system. The-- the nature of law, the nature of justice and this incredibly machinery-- that-- keeps grinding out these hard to believe but-- appalling-- decisions that you catalogue, Sherrilyn. And I-- I-- I'm reminded of-- I used to-- when I was at the Vera Institute of Justice we were doing a lot of work with-- criminal justice-- reformers in other countries, and I had a delegation of Chinese-- criminal lawyers who came to New York to understand the U.S. justice system and arranged for them to spend a day in-- Manhattan-- Criminal Court. And they sat there and watched these-- this extraordinary-- day in court, came back to the office afterwards, and they were fascinated. They were-- you know, described the comments of the judges, the individual cases, and then they asked, in all seriousness, "Tomorrow can we go to the court for white people?" (NOISE) SHERRILYN IFILL: Wow. CHRIS STONE: The-- that-- that-- that-- the depth to which the system is just about race and that the police-- the way we police in this country-- defines the justice-- the court system in that way-- I-- I think is-- is so powerfully captured in all the-- all the chapters, from Bryan's discussions about slavery and-- and the origin of-- of-- of-- of the criminal justice system in the country all the way through-- through-- through yours. Let's talk a little bit about prosecutors. Because-- I think understanding that the police are standing for this whole system and the power of the prosecutors. You make-- you-- you make a powerful argument that while the police may have the most powerful guns in the system-- the power in the system to destroy lives-- to doing justice, to distort justice is-- most powerfully held by prosecutors. How-- how does that happen? ANGELA DAVIS: So one of the reasons I've spent the last 20-something years thinking, and writing, and talking about prosecutors is 'cause they really are the most powerful officials in the criminal justice system. And of course we have to pay attention to police officers. They are killing us every day on the streets. But in-- when you're talking about the-- those-- the killings, that's one huge, horrible issue, but what goes on in the criminal justice TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 9 system every day with black and brown people is police officers' incredible power and discretion on the streets to stop people, to search them, et cetera. But police officers can only bring people to the courthouse door. It is the prosecutor who decides whether they may remain entrenched there 'cause they didn't make the charging decision. Prosecutors can decide to charge a person or not. Police officers (COUGH) don't have that power. They recommend charges, and the prosecutor can take that recommendation or not. They can charge the person with whatever the cop recommends, with something less, with something more, or with nothing at all, right? And so having that discretion is what creates a lot of the racial (COUGH) disparities, many of the racial disparities in our criminal justice system, which are extreme, as we all know. But that charging power, which belongs solely to the prosecutor, combined with the plea bargaining power, which also totally belongs to prosecutors, really allows them to control the criminal justice system. Especially when you think about the fact that 95% of all cases are resolved by way of (BEEPING) a guilty plea, right? People watching all these TV shows and they think, "Oh, these trials are going all Law and Order." No, there's a lot of guilty pleas going on. And because to charge a person all prosecutors need to do is meet the very low standard of probable cause, they can pile on charge, after charge, after charge, many of which may have mandatory minimal sentences, especially in in drug cases. Five, 10 years, or more. And all they have to meet is that low standard. The-- a much lower standard than the proof beyond a reasonable doubt that they would have to meet at trial. And so you can see how a person when faced with all of these charges that have been piled on, five, 10, 15, 20, 30 years on the bottom, you can see how even an innocent person (COUGH) would plead guilty. Because going to trial is risky business. When you exercise your constitutional right, you don't know what that jury's going to do. And so the prosecutor holds-- holds all the cards. They decide whether there's gonna be a plea offer, what the plea offer's (COUGH) going to be, and those two powers together really give them control of this criminal justice system. And they make those decisions behind closed doors with absolutely no transparency. We don't know how they're making the decisions. We don't know when they're making them. We don't know how they compare. Are you giving one person a good deal and not giving another person? They are, but it's really har-- we don't know that, right? And so there are the most powerful, and that's why I focus so much attention on them. And that's why I tell people, "Pay attention to who your district attorney is." Because that person is an incredibly important person. And hold them accountable. And unfortunately, we don't have a good way of (COUGH) holding our district attorneys accountable. We really don't. You know, only about 10% of all criminal cases are decided in the federal system. 90% of all criminal cases are prosecuted and handled on the state and local level, and state and local prosecutors in every jurisdiction, except five of them, are elected officials. And unfortunately, a lot of them-- they serve for decades unopposed. People don't challenge them. It's really hard to challenge an incumbent. And they run-- they don't run TRANSCRIPT: POLICING THE BLACK MAN: A CONVERSATION WITH ANGELA J DAVIS AND SHERRILYN IFILL 10 on what they're charging and plea bargaining policies are. They don't talk about that when they run for office. Most of them talk about how tough they are on crime. And if they have an opponent-- a lot of times they don't-- they say, "Well, I'm tougher." And no one asks them about their charging and plea bargaining because people don't really know that those are the issues that are important. But they are important, so that's why we (COUGH) tell people talk about democracy. I mean, really we need to hold them accountable. (COUGH) We need to ask them when they're running for office, "What are you doing-- to reduce the incarceration rate?" The-- I-- I urge you the next time you have a district attorney who's running, raise your hand and ask that question. Ask them, "What are your charging and plea bargaining policies?" They'd probably faint dead away right there (LAUGHTER) on stage. Ask them, "What are you doing about the racial disparities in our jurisdiction?" You must ask-- you must ask them these questions and hold them accountable because they're the ones who are really, you know, causing-- I'm not saying they're the only ones. Obviously, they're not. There are a lot of reasons why. From the law, the jurisprudence, to the actors in criminal justice, and there are a lot of really complicated reasons why we're in this terrible mess. But prosecutors certainly play a major role, and I feel like they have a responsibility. CHRIS STONE: So you talk in the book about-- absolutely elected prosecutors, and you point out that not-- first-- first I thought, "I never seen the-- the data presented the way you do," but just how few prosecutors are anything other than white men-- that-- that it's overwhelmingly men, but even more so overwhelmingly white. ANGELA DAVIS: Yes. CHRIS STONE: And I think you said-- I think you write outside of two states-- and I can't remember which two they are-- it's only 1% of-- ANGELA DAVIS: Right. CHRIS STONE: --of prosecutors in the country. ANGELA DAVIS: Only 1% African American. And I-- which is a horrible statistic-- for all kinds of reasons. But I also must say that having a black prosecutor is not going to solve-- SHERRILYN IFILL: Not the guarantee.