Naomi Roht-Arriaza*

Versión en español aquí.

Juneteenth, June 19, commemorates the day in 1865 that the last US slaves were freed. The holiday was celebrated across the United States this year with marches calling for defunding the police and tackling continuing systemic racism, continuing weeks of protests after the police killing of George Floyd and others. These demands for radical change might at first seem unnecessary and extreme – after all, the US recently had a Black president, and slavery ended long ago – but they reflect the way government action throughout the 20^th century until today created and supported institutionalized racism.  With the disproportionate effects of both COVID-19 and unemployment on the Black community, these patterns have become obvious.  In particular, the protests respond to the failure of decades of reform efforts to stop the police killing of unarmed black people across the country, a failure rooted in the isolation and control of Black and Latinx communities and the defunding of services to these communities.  The US experience provides an illuminating window into the persistence of racism and racist policing elsewhere in the Americas, as well as some intriguing pathways forward.

1. Institutional racism is not just slavery or “Jim Crow”

Most people in Latin America know that the US economy was built on slave labor, especially in the cotton fields, and that the US fought a civil war in the mid-19^th century that led to slavery’s abolishment, and to constitutional amendments guaranteeing equal protection, citizenship and voting rights to the former slaves.  Many recognize how the post-war reform efforts at inclusion during Reconstruction came to a screeching halt with a combination of enforced segregation, white militias terrorizing the Black community, disenfranchisement of Black voters and reimposition of slave-like practices in prisons and in the countryside, through sharecropping and other practices. It was not until the 1960s that formal segregation in the south, known as “Jim Crow” laws, were outlawed, through a combination of Supreme Court decisions, federal legislation and the use of federal troops to enforce the law.

However, much less well known is the way in which government policy and neglect in multiple areas, from housing and labor rights to impunity for lynching and massacres and mass incarceration have shaped the African-American experience of the 20^th and 21^st century.  This is not just a question of impersonal economic forces, like deindustrialization and the hollowing out of “Rust Belt” northern cities, but of deliberate state decisions that have led to intolerable  economic, health and educational outcomes and fueled today’s rage.

While a full accounting of these policies is too long to include here, some of the highlights include:

• A continuing history of violence, especially against prosperous Black communities. The most well-known was the destruction of a part of Tulsa, Oklahoma known as the Black Wall Street in 1921, in which at least 300 were killed, and thousands left homeless; but there was also Rosewood, FL, where the town was destroyed and anywhere up to 150 killed in 1923, and other Black neighborhoods.  There were at least 4743 lynchings of African-Americans between 1882 and 1968 – and lynching is still not a federal crime.  This was not random private violence; local authorities contributed or at least watched, at times accompanied by picnicking crowds, and the crimes were left in complete impunity.  Nor was this just a southern phenomenon:  many lynchings took place in the Midwest states. This history of violence and control kept black communities controlled and repressed by all-white police and sheriffs, which evolved from slave-catchers and anti-Black militias. All this combined with the KKK and other terrorist militias.

• Housing segregation was created by government support at every level: the federal government, through the Public Works Administration — a federal agency created in the 1930s under the New Deal — demolished housing that integrated neighborhoods to build racially segregated public housing.  And it created a whites-only mortgage insurance program:  during the years after World War II, the Federal Housing Administration (FHA) and Veterans Administration (VA) subsidized the development of entire subdivisions to house returning veterans and other working-class families on a Whites-only basis. Whites could get education and cheap home loans under the GI. Bill, but non-whites found it almost impossible.  White families that benefited from this mid-20th-century federal housing program gained hundreds of thousands of dollars in equity. In part as a result, White households are worth at least 10 times as much as Black households.

• Redlining was a process in which the Home Owners’ Loan Corporation (HOLC), a federal agency, gave neighborhoods ratings to guide investment. The policy is so named because of the red or “hazardous” neighborhoods that were deemed riskiest, in large part due to being home to racial minorities. Redlining was an explicitly discriminatory policy that made it hard for residents to get loans for homeownership or maintenance, and led to cycles of disinvestment. This was compounded by the use of restrictive covenants limiting sales of homes in “white” neighborhoods to other whites, and later “urban renewal” projects in the 1960s that physically divided or destroyed Black neighborhoods and displaced thousands.

• Education in the US is largely financed at the local level by property taxes.  So residential disparities translate into educational disparities.  It explains why overwhelmingly white school districts received $23 billion more than predominantly nonwhite school districts in state and local funding in 2016, despite serving roughly the same number of children. It also explains why, starting in the 1960s mostly white communities reacted to mandated school integration by seceding from cities and creating new, suburban, towns and school districts.

• Labor law, even at its strongest, was designed to favor white workers.  At the beginning of the New Deal in the 1930s, the National Recovery Act established industrial wages at lower levels in industries where black workers predominated; later, Social Security (old age and disability payments) and Fair Labor Standards legislation excluded from coverage occupations in which African Americans (and later Latinxs) predominated, for example, agriculture and domestic service.

Looking at these deliberate uses of state policy, combined with impunity for violence against African-Americans (as well as other minorities including Chinese and Latinx), provides an explanation for the call to recognize and redress systematic racism in the US.

2. Police violence, the failure of reform, and the call to “defund the police”

Videos of unarmed Black people killed by police have become routine – the horrible killing of George Floyd is just the most recent example.  Indeed, over the last five years, police killings have remained stable at about 1000 per year; 24% of those killed are Black, although they make up only 13% of the population.  After each killing, reforms are implemented: Training in de-escalation of violence and in fighting implicit bias, use-of-force rules, body cameras, more minority officers, and dozens more.  Yet in this round of protests against police violence, activists are calling for deeper, more profound changes, including trimming bloated police budgets to fund neglected social services – summarized by the slogan “defund the police.”

There are a number of structural obstacles that make it hard for real police accountability to take hold.  The US is a patchwork of some 18000 city, county, state and federal police agencies, and the federal government rarely intervenes in local policing.  There are formal and informal networks dedicated to maintaining the status quo:  Police labor unions oppose most reforms, and corporate donations to police foundations provide an unaccountable source of funds. White supremacist networks have infiltrated many departments.  More than 8,000 police departments have obtained surplus military equipment at no cost through the 1033 Program, which allows the military to pass them hand-me-down combat equipment so long as they use it quickly.  This militarization program, suspended under Obama, has been revived, leading to tanks and teargas being used against peaceful protesters.

Only 1% of killings by police were prosecuted between 2013-2019.  Prosecutors don’t like bringing charges against police, in part because cases are so hard to win in front of unsympathetic juries.  Unlike elsewhere, in the US civil and criminal cases are totally separate, so that if victims of police abuse want redress, they must sue for damages separately from any criminal case.  There they confront the doctrine of qualified immunity, as developed by the US Supreme Court.  The doctrine holds that police cannot be civilly liable unless the plaintiff shows that the official violated «clearly established statutory or constitutional rights of which a reasonable person would have known.» A victim must identify an earlier decision by the US Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional.  Since no two cases are exactly alike, plaintiffs rarely can meet this standard, even if the police’s actions were egregious.  While the Supreme Court has had opportunities to change this court-made doctrine, so far it has not done so. The doctrine means that external accountability for police violence is difficult at best; police win most cases against them

It is no wonder that the current movement calls for defunding the police.  This doesn’t mean abolishing police and leaving nothing in its place:  rather, it’s about rethinking policing for the 21^st century.  The idea is to remove police from tasks like dealing with homelessness, domestic violence and mental health, and put that money into better civilian services in these areas along with more money for community services generally.  Calls to legislatively abolish qualified immunity, to disband police departments and rehire new officers (as was done in Camden, NJ), to rein in police unions and to demilitarize the police are part of a larger agenda to – finally – tackle systemic and institutionalized racism.

3. Parallels to Latin America?

There are interesting analogies to the experience of racism in Latin America.  As in the US, racism was baked in from the beginning, with the colonial experience of mandamientos and repartos of the indigenous population as forced labor, in addition to chattel slavery.  After independence, vagrancy laws and land grabs that forced the native population into quasi-feudal sharecropping and seasonal migration were enshrined in law, alongside discriminatory theories about the “backwardness” of native groups. Even apparently neutral laws, like those recognizing individual but not collective ownership of property, or allowing public appropriation of land left uncultivated for a certain number of years (as in Peru or Mexico) had in practice the effect of dispossessing indigenous communities of their livelihood, forcing them into urban migration as marginal workers.   Examples of discriminatory laws abound: in Peru, illiterate people (most of them native) could not vote until 1980; in Guatemala, not until 1944.  As in the US, labor law offers fewer protections to heavily indigenous professions like.  As in the US, policing was violent, designed to keep native populations from rebelling and to separate them from fearful Spanish-descendant upper classes.  Uprisings and attempts to redress land grabs have been met with the same violent response for over 500 years. And as in the US, public policies have been perpetuated, normalized and underpinned by racist ideology and stereotypes, leading to profound and widespread discrimination against indigenous people throughout the society.

One of the most hopeful aspects of the current moment in the US is the involvement, much more than previously seen, of European descendant/white people in the continuing protests and demands for change.  New conversations among white youth, demonstrations and signs in mostly white neighborhoods, and public opinion polls all show a new openness to discussing these issues throughout the society.  In Latin America, discussions of indigenous rights have mostly been limited to indigenous communities. Perhaps the solidarity protests across the Hemisphere against racism and police violence will unleash a new era of questioning existing patterns, and seeking redress for systemic discrimination across the Americas.  It’s past time.

*President of the Board of Directors at DPLF and Distinguished Professor of Law at the University of California Hastings College of the Law

Photo: Tim Dennell/Flickr