Statement Against Criminalization of Black and Brown Victims
On May 25, 2020, four Minneapolis police officers killed George Floyd. Minnesota, the rest of our country, and the world witnessed the last minutes of Mr. Floyd’s life; Floyd, a father, a son, and, more importantly, a human being, lay with his head pressed into the cement, empty hands bound with cuffs, pleading for mercy and the comfort of his dead mother. The source of his distress: four Minneapolis police officers. Eventually, the four officers were charged with crimes for their acts and omissions. Because we are a nation of laws, they deserve a fair trial. Nothing should interfere with that sacred right.
We should be clear, however, that it is those accused of killing George Floyd that are on trial—not George Floyd. Recent court filings by the attorneys representing some of the criminal defendants would suggest otherwise. For instance, the attorneys for Officer Thomas Lane exhumed records of Mr. Floyd’s prior encounters with law enforcement and convictions dating back some seventeen years. They call him “an addict” and a liar who should not be believed. And they seek to justify the killing of Mr. Floyd by pointing to the location of his arrest as if where you frequent should have any bearing on whether you have a right to be free from violence at the hands of law enforcement.
The smearing of Mr. Floyd’s character is nothing more than racial stereotyping masquerading as historical and objective facts. Since the birth of the Eugenics movement in 1883, junk science theories have been used to propagate negative stereotypes that people of color are less intelligent, sub-human, and that Black men in particular, are prone to savagery and deserve to die or be killed with impunity. To promote this bias and rhetoric, in cases such as Mr. Floyd’s, some historical facts such as Mr. Floyd’s criminal history are offered to incite prejudice, distract from important decision-making, and bias the ultimate decision-makers.
Today, the sexual history of victims of sexual assault is all but off-limits in the courts because, though historical and objective, it is wholly irrelevant to the question of whether the defendant committed the alleged crime. The focus on the sexual history of victims in those cases—before laws were passed barring their revictimization—is clear: distract from the ultimate question (i.e., did the State prove that the defendant committed the crime with proof beyond a reasonable doubt?) and (2) play on long-held stereotypes and biases of the jury that the victim is less worthy of justice.
George Floyd’s criminal history and struggles with substance abuse were offered with the same goals: to distract, dehumanize, and play on deeply-rooted and indelible racist stereotypes. This is not right. We believe that all Americans are protected by the same Constitution, irrespective of where they live, their prior encounters with law enforcement, or their past struggles.
We also see that this strategy takes on a special ugliness when engaged by those who defend the police officers who have been accused of killing Black and Brown Americans. It is a strategy used to try to justify the senseless killings of people of color time and again. We need look no further than what occurred in the aftermath of the death of Eric Garner (as if selling loose cigarettes warrants the death penalty); Michael Brown (suggesting a teenager’s physical size and unproven and unrelated criminal conduct justified his killing); Akai Gurley (suggesting that Mr. Gurley was more of a threat because he was killed in the vicinity of public housing and because of his physical stature); Tamir Rice (as if a twelve-year old child’s physical size and his mother’s lifestyle excuse his killing); Freddie Gray (emphasizing where he lived, his physical stature, and prior interactions with law enforcement to exonerate his killers); and countless others. This is not a new phenomenon or a new tactic. Nor is it a creative, new argument Officer Lane’s lawyers happened upon. It is a phenomenon so familiar and prevalent; we all know it when we see
it. While the strategy may not be new, the pain it causes cuts deep every time it is wielded and unmistakably screams to every person of color: “your Black and Brown bodies do not matter and you are less deserving of the protections of the law.”
The strategy of attempting to distract from law enforcement’s conduct by inciting prejudice and dehumanizing the victims of violence is racist. Lawyers know better and must be better. And we should hold them to account when they do not.
The Minnesota Association of Black Lawyers, Minnesota Hispanic Bar Association, Executive Committee of the Minnesota American Indian Bar Association, and Minnesota Asian Pacific American Bar Association denounce this blatant practice of criminalizing Black and Brown victims of violence. It is clear that this strategy is intended to fuel racial prejudice in a case being watched across the country.
We encourage everyone to resist the smoke and mirrors that stoke ugly biases that have been deliberately developed against Black and Brown victims in America for centuries. Let each of us check our own biases and abandon notions that a Black or Brown victim’s parentage, or his/her family or personal history somehow grant permission for him/her to be killed on our streets.
We believe it is time that the Minnesota State Legislature enact a victim’s rights bill focused on the rights of the victims of police brutality and violence. The legislation should limit the use of prior medical histories, criminal histories, and substance abuse histories by law enforcement to justify police brutality and violence, much like rape shield laws (blocking the admission and introduction of past sexual history of victims of sexual violence, except in limited circumstances).
If not now, when?
 “Eugenics” was a term coined in 1883 by England’s Francis Galton. He combined the Greek words for “good” and “born” to refer to the social philosophy advocating the improvement of human heredity through selective breeding. Eugenics became the bedrock of white supremacist movements, most notably, the Nazi eugenics effort to “stamp out mental inferiority among the German people,” and it was hoped by some that Hitler’s “efforts along that line will be a great success and will advance the eugenics movement in other nations as well as in Germany.” Letter from Dr. Charles F. Dight, President, Minnesota Eugenics Society, to Chancellor Adolf Hitler (August 1, 1933).
See CalvinJohn Smily and David Fakunle, From “brute” to “thug:” the demonization and criminalization of unarmed Black male victims in America, J Hum Behav Soc Environ. 2016; 26(3-4): 350–366 (2016) (analyzing media coverage of police killings of Black males and the recurring narratives designed to incite prejudice and play upon stereotypes) and Kristin Dukes and Sarah E. Gaither, Black Racial Stereotypes and Victim Blaming: Implications for Media Coverage and Criminal Proceedings in Cases of Police Violence against Racial and Ethnic Minorities: Victim Blaming and Race, Journal of Social Issues 73(4):789-807 (2017) (discussing how the use of racially charged stereotypes in the media impact public perception and juror perception of victims of police violence).