Race and American Law: Looking Beyond Obama

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Photo by Johnny Silvercloud via Flickr

The forthcoming seventh edition of “Race, Racism & American Law” aims to give lawyers, law instructors and law students some practical tools for navigating the criminal justice and related societal systems where race remains a driver, said Black Lives Matter activist Justin Hansford, who is preparing the volume with Cheryl Harris, a University of California at Los Angeles School of Law professor.

The original work was created by former Harvard Law School Derrick Bell,

bell_coverHansford, 35, a former Fulbright Scholar, federal appeals court clerk and White House staffer, is currently on sabbatical from St. Louis University School of Law. He  discussed with The Crime Report contributing editor Katti Gray why the book’s re-release in 2017 is especially timely, given what President-elect Donald Trump said about crime during his political campaign, as well as the uncertainty about the prospects for bi-partisan criminal justice reform in the coming years.

The Crime Report: Why does this new edition of this book matter—legally, politically, socially—at this point in history?

Justin Hansford

Justin Hansford

Justin Hansford: The last version of the book came out in 2008, when the first U.S. black president was inaugurated. It talked about race and the law, pre-Obama. Not only are we post-Obama, but we’re entering the Trump era. Trump’s take on race—based on what he said during the campaign—reinforces one the core aspects of critical race theory that Derrick Bell espoused: racial realism, the notion that racial progress doesn’t happen in a straight line.

It’s a dance, where you take two steps forward and two steps back … We ended slavery then saw [black oppression] during Reconstruction. We ended Reconstruction and entered Jim Crow. We outlawed Jim Crow but then wound our way to mass incarceration.

We’re privileged, as legal scholars, to be asked to think about what those critical race ideas will be for us in 2016, 2017, this current moment when many of us feel lost and are searching for answers.

We believe Professor Bell’s theory can give us some of those answers.

TCR: This book is part of a continuum of legal scholarship and best practices, as Bell saw them. How will the upcoming version be the same and different from the previous edition?

Hansford: In the upcoming edition, we will not only focus on the struggle, the obstacles, but also the resistance. It will focus on the movement in response to the struggles. For example, in the chapter on voting rights laws, we will talk about Shelby [County vs. Holder] and the loss of [mandated federal] pre-clearance [of changes in voting rules] in the Voting Rights Act.

In addition to talking about the things that pushed us back, racially, we will talk about the grassroots movements that have sprung up, the advocacy, [and] the policy [innovations] of Obama to improve black life in education or employment or housing.

Immigration is a major question in the criminal justice field. So is the question of whether to make the ballot accessible to people who speak English as a second language.

So, while the past editions focused almost exclusively on African-American engagement with the law, we will include struggles by Asians, Latinos, Native Americans and the [anti-oil pipeline] protests happening now at Standing Rock

In the past, there was a separate chapter on how race affects non-blacks. Those affects and that discussion will be spread across all the chapters. This new edition will be 1,000 pages of case law, theory, scholarship. Plus, it will spotlight the nuts-and-bolts work of advocates working on the ground.

TCR: What’s your take on bi-partisan criminal justice reform and its future?

Hansford: Whether it was the Koch brothers or other conservatives helping to steer that, when the motive for reform revolves mainly around economic concerns and the costs of incarceration, I’m skeptical. You never know when the economic lens may shift. Many people have argued there should be reform because it costs so much to keep up this mass incarceration. If that’s the best reason you can find to change an inhumane system, the moral fabric of this country has worn incredibly thin.

In 2015, it seemed the energy behind that bi-partisan reform began to fade. Insider baseball was that the talks got caught up on white-collar crime. In addition to scaling back mass incarceration, some conservatives wanted to scale back penalties for Wall Street bankers.

And, so far, regarding Trump, it’s hard to predict what he will do—though it’s reasonable to read his law-and-order talk as code for “let’s crack down on people of color.”

TCR: Some municipalities and states have been making reforms on their respective levels. Do you expect that activity to continue, despite what’s achieved—or not—on the federal level?

Hansford: Back in 2015, we had the campaign to remove the prosecutor in the case of Laquan McDonald [who died from police gunshot] in Chicago. That prosecutor lost her re-election bid. In Cleveland, in the case of police killing Tamir Rice, that prosecutor also lost re-election thanks to local organizing.

I don’t want to give the impression that I believe criminal justice reform should focus on removing prosecutors. That is a limited framework. We still have to focus on structural change throughout the system. That is what the textbook is about.

Removing prosecutors isn’t enough, but it’s a start. These small wins, with advocates pushing and pushing, keep me hopeful.

TCR: How will the revised textbook address ex-prisoners’ re-entry into =life outside of incarceration?

Hansford: As it stands, the book outlines the problems of re-entry and limits of the law. In the remake, it will [focus on] the status quo on re-entry issues, such issues as how the Obama Administration responded to ban-the-box [efforts to keep the formerly incarcerated from having to list their convictions on most job applications]. In cities such as St. Louis, they decided the city government would ban the box on its applications. That took place after a lot of struggle.

One of the challenges of the book is that a question like re-entry applies to so many areas: criminal justice, but also housing and employment discrimination, all these different areas. How do we address re-entry in an effective way? How do we not pigeonhole such a dynamic issue that falls into so many different categories of the book? We don’t just want the sad story of what has happened to make it hard for people to continue their lives … but we also want the story on the push to end things like felon disenfranchisement at the ballot box. The voting rights section will address some of that.

TCR: You say you and your co-author want the next edition of Race, Racism & the Law to be more than just a mere textbook. Expand on that idea.

Hansford: The thing that will make this book come alive is how students engage with it. The textbook strives, very clearly, to be a teaching a tool. It’s not the traditional textbook where we are looking for people to just read a bunch of cases … In fact, we don’t have cases, per se, inside the text book.

Katti Gray

Katti Gray

A separate companion book will have 25 major cases: Bakke, Fisher, Shelby, the Floyd stop-and-frisk case, the Pigford case involving black farmers dispossessed of their land … We expect law students to get to know, not just what happened in court, but how to take what happened in court and apply it in the real world, how to be an advocate for racial justice and parity, how to use their own narrative and life experience as a reference point.

The book provides commentary and analysis in what is happening in law and scholarship and in real life.

Katti Gray covers criminal justice, health and education for a range of national publications. She welcomes reader comments.






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