White America Needs to Wake Up: Hillary Clinton, Bernie Sanders & the Unacknowledged Crimes of American Justice

When Hillary Clinton met with the members of Black Lives Matter chapters in Massachusetts last week, they were very interested in hearing her speak about her personal transformation on race. In a later CNN interview, Daunasia Yancey and Julius Jones, BLM leaders who participated in the meeting, indicated that they needed to hear her personal narrative in order to trust her. They began talking to Clinton about what the movement “needs to do to change white hearts,” but she replied, “I don’t believe you change hearts. I believe you change laws, you change allocation of resources, you change the way that systems operate.”

This tension over capturing hearts and minds versus changing the operation of systems — and, in particular, over which must come first — is a long-standing one. In 1963, Martin Luther King argued,

“Certainly, if the problem is to be solved then in the final sense, hearts must be changed. Religion and education must play a great role in changing the heart. But we must go on to say that while it may be true that morality cannot be legislated, behavior can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also.”

Feelings matter for politics. And if “white hearts” don’t change, they are always capable of reconfiguring systems to maintain white hegemony. Moreover, I think when Black millennial voters continue to express their hesitancy about voting, that part of their desire for measures that fully overhaul the current system has to do with a fundamental distrust of white politicians and their white constituents.

The Black Lives Matter movement engages white people in terms of whether they have personally grappled with their own white privilege. It counts as co-conspirators and allies those white people who are willing to call out the problems among other white people. White people who have not grappled with the ways they are beneficiaries of white supremacy or white people who revel in the singularity of their status as anti-racists (meaning they are unwilling to go back and challenge other white people) are viewed as suspect and, ultimately, as a liability.

Hillary Clinton conceded to the Boston BLM leaders that their mistrust and skepticism are “historically fair,” “psychologically fair,” and “economically fair.” She also conceded that for the most part we should not expect “white hearts” to change.

Thus she sounds a King-ian note when calling for legislation, sanctions and systemic changes to do what moral suasion cannot do.

The problem is that nearly 50 years after the death of King, young Black people are not convinced that changing systems and laws without changing social consciousness will fix the problem either.

For instance, in White v. Crook (1966), a U.S. District Court in Alabama struck down the all white, all male jury system after Black residents of Lowndes County, Ala., challenged the processes by which women in particular were excluded from participation on juries. Two of the attorneys for the plaintiffs were famed white feminist legal scholar Dorothy Kenyon and Black feminist legal scholar Pauli Murray.

Nearly 50 years later, a sweeping new study has emerged to suggest that in Alabama, North Carolina, Louisiana and Georgia, prosecutors strike Black jurors from juries at “double or triple the rates” of other citizens. In Shreveport, Louisiana, Blacks are struck from juries at three times the rate of anyone else. Only 25 percent of jurors in Caddo Parish, where Shreveport is located, are Black, but the population is between 44 percent and 48 percent Black, and the town now has its second Black mayor. One of my two hometowns, Shreveport sends the most Black men to death row of any district in the United States, and is located in a state that incarcerates more people per capita than anywhere in the world.

Having diverse and representative juries becomes critical in this context. The acquittal rates of Black defendants arise by several percentage points based upon how many Black people sit on juries. If fewer than 2 Black people are jurors, there are no acquittals of Black defendants. When the number rises to 3 jurors, the acquittal rate goes up to 12 percent. When the number is 5 or more, the acquittal rate goes to 19 percent.

One could read this and conclude that Black people are biased toward Black defendants. That may be true. But these numbers also suggest that white people are roundly biased against Black defendants.

The New York Times reporting on this study found that use of peremptory challenges by Shreveport prosecutors was particularly troubling. In one case, a Black man with dreadlocks was struck from the jury because the defendant in the case also had dreadlocks. Surely, the same hairy logic does not apply to white jurors and defendants. By contrast, a white woman who indicated that she would not challenge her jury peers if they made racially prejudiced remarks during deliberations was not struck from the jury.

White v. Crook was viewed at the time as a broad corrective to a a jury system that had been a farce for African-Americans in the first half of the 20th century. But five decades later, African-Americans in Southern locales are still routinely excluded from jury service for a range of reasons that appear on the surface to be “race-neutral,” as one Shreveport prosecutor described his challenges. But there can be no “race-neutral” politics of jury selection in a place like Caddo Parish, which was widely considered one of the most violent counties in the country after the Civil War because of high rates of lynching. The Black Strikes study of its jury selection practices indicates that many of those practices were codified in the late 19th century in the same exact period that strange fruit swung from Parish trees on the regular. And to add insult to irony (and injury), a Confederate Memorial sits in front of the Caddo Parish courthouse.