Dear Heather Mac Donald

Dear Heather Mac Donald,

In September, you came to Harvard Law School on the invitation of The Federalist Society to discuss the findings of your new book, The War on Cops. Because the audience was left with a negligible amount of time to engage, I wanted to take this time to respond.

Your credentials are very impressive, and you came equipped with a significant amount of data in support of a narrative that there is currently a “War on Cops.” However, I wonder if you have ever read these words from Martin Luther King Jr. in his famous letter written from Birmingham Jail:

“You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative,” (emphasis added).

I am of the opinion that presumptuousness is generally undesirable, but I hesitate to believe that you have ever truly engaged with King’s reasoning in the context of your work. If you had, I am sure that you would use the platform of your privilege to address the underlying causes of violence in black communities instead of advocating for harsher policing and lengthened criminal sentencing. If you had considered King’s reasoning, I am sure that you would recognize that, just perhaps, roughly 250 years of slavery, roughly 80 years of Jim Crow laws and segregation laws thereafter, the continuing effects of discriminatory housing policies, etc. might have some effect on black communities that is relevant to any proper statistical analysis of crime and law enforcement.[1]

Ms. Mac Donald, I generally welcome diverging opinions, but I think your narrative of the War on Cops verges on dangerous for three main reasons: First, both your conclusions about the lack of correlation between poverty and crime, and your insistence that race has no relevance to prison rates promote a belief in the inherent criminality of black people; second, your monolithic account of Black Lives Matter discredits the movement as a significant vehicle for the voices of civil society; and third, your conclusions about the value of so-called “tough on crime” policing minimize the collateral effects experienced by peoples of color, thus implicitly invalidating legitimate grievances about these effects.

First, I will address your conclusions about the lack of correlation between poverty and crime. During your presentation, I took issue with your reference to Alice Goffman’s On the Run, namely the chapter of her book entitled “Clean People” that describes working class African American men in Philadelphia who generally do not participate in illegal activities despite having relationships with friends and family who are, to various extents, entangled in crime. You used Goffman’s description of this demographic to make the broad assertion that there is no correlation whatsoever between poverty and crime — a conclusion that dangerously invokes the well-known stereotype of inherent black criminality.[2]

I fact-checked the context of this reference since my best friend is currently studying with Alice Goffman in her Ph.D. program at the University of Wisconsin–Madison. Goffman spent six years living in a Philadelphia neighborhood conducting an ethnography of the black communities she studied, and the conclusions of her research are shockingly different from the purpose for which you cited to this chapter of her book. As the description for On the Run reads, “[Goffman’s] close observations and often harrowing stories reveal the pernicious effects of [] pervasive policing.”

Furthermore, after reading the chapter to which you cited, it seemed quite clear that Goffman’s description of this young, black, law-abiding demographic was presented to make the point that, contrary to common perception, there are variations in the extent of legal entanglement between members of black community — and even within members of the same family — in West Philadelphia. As Goffman herself describes, “Given the unprecedented levels of policing and imprisonment in poor Black communities today… simply bearing witness to the people who are avoiding the authorities and the penal system seems worth a few pages.”

Given that Goffman declines to answer the question of why, when exposed to similar stimuli, some individuals end up in prison and others do not, I am curious as to why you felt the need to strip Goffman’s descriptions of their important context in order to support your argument that poverty has no effect on why individuals choose to resort to crime?

Although it is certainly not a crime to take a piece of data from another researcher to make an entirely different point than that of the researcher, your presentation, through omitting all of the relevant nuances that this chapter presents, implied that that Goffman’s description was included in her book to support your same conclusion. You failed to mention, for instance, that some of these individuals actually had engaged in crime previously and actively decided to distance themselves after significant life events, such as the birth of a child or having a criminal record mercifully expunged by a judge.

This critique is nontrivial. Goffman explicitly notes that “[t]hose who avoid incarceration tend to be better educated, better employed, and better paid.” Reading the chapter in its proper context, Goffman actually demonstrates that despite the correlation between poverty and crime, there are individuals who manage to keep themselves out of trouble, individuals who, in her words, become skilled at “carving out a life apart” from the poverty and violence endemic to certain neighborhoods, thereby “leading clean lives in a dirty world.”

In addition to your presentation’s misrepresentation of Goffman’s work to imply the inherent criminality of black people, I also take issue with your book’s assertion that “[a] rigorous analysis of data shows that crime, not race, drives police actions and prison rates.” The variables of crime and race do not have to be mutually exclusive, and anyone with a basic understanding of this country’s history should know that these variables cannot be mutually exclusive. Your shocking blindness to the lingering effects of hundreds of years of racialized policies demonstrates to me that we have not been taught the same history of the United States. Indeed, you seem to fall victim to the same flawed belief that writer Ta-Nehisi Coates shrewdly captures in his 2014 article “The Case for Reparations”:

“Indeed, in America there is a strange and powerful belief that if you stab a black person 10 times, the bleeding stops and the healing begins the moment the assailant drops the knife. We believe white dominance to be a fact of the inert past, a delinquent debt that can be made to disappear if only we don’t look.”

It may not be politically correct to assert race-based propensity arguments in this day and age (i.e. the argument that since there is no correlation between poverty and crime, it must just be something inherent in black people that accounts for our current crime rates); but to think that asking an audience to read between the lines is any better is a dangerous path on which to embark.

The second reason I believe your narrative of the War on Cops verges on dangerous derives from some of the central claims you have made in articles surrounding your new book: namely, your discrediting of the entire Black Lives Matter movement.

In your book, you seek to deconstruct what you see as “the central narrative of the Black Lives Matter movement: that racist cops are the greatest threat to young black males.” However, I question the accuracy of your analysis. The Black Lives Matter guiding principles page itself describes that “Black Lives Matter is an ideological and political intervention in a world where Black lives are systematically and intentionally targeted for demise.” This mandate is in no way lessened even if police violence is not the “greatest” threat to young black males. After its January 2016 mission to the United States, even the United Nations Working Group of Experts on People of African Descent reported that it “is deeply concerned at the alarming levels of police brutality and excessive use of lethal force by law enforcement officials, committed with impunity against people of African descent in the United States.” Clearly, recognizing police violence as a problem worth addressing is not tantamount to an assertion that racist cops are the “greatest” threat to young black males.

Furthermore, your discrediting of the Black Lives Matter movement is logically flawed since you seek to eviscerate the entire movement through equating the rhetoric of isolated subcultures that indiscriminately demonize the police with the movement itself. The abovementioned UN report states in its conclusions and recommendations that “Following the epidemic of racial violence by the police, civil society networks such as Black Lives Matter, together with other activists, are strongly advocating for racial justice, legal and policy reforms, and citizen control over policing …” which it considers a “welcomed” expression of a growing human rights movement in the United States. By denouncing the entire movement as a threat to public safety, you make the mistake of throwing out the baby with the bathwater. More dangerously, you fail to recognize any levels of nuance within the vast segment of civil society that seeks, through this movement, to express its belief in the sanctity of black lives.

Lastly, your conclusions about the value of so-called “proactive policing” are incredibly dangerous in that they minimize the collateral effects experienced by peoples of color thereby implicitly invalidating — and encouraging others to invalidate — legitimate grievances about these effects.

To this point, I would like to share with you a story that I have shared with few: When I was 15, I was detained by a truancy police officer in New York City over a school vacation for Passover. Luckily, there was no physical violence involved, and there may not even exist a record of this incident since my story was ultimately verified, but only after I was steered into a police vehicle against my adamant protests, dropped off at a nearby precinct, and the officer who detained me walked off, never to be seen by me again. However, I can say that this incident was one of the biggest violations of my humanity, integrity, agency, and voice that I experienced in my teenage life — all because of the distrust of my 15-year-old black body. Although I cannot empirically prove an intent of racial profiling, my experience tells of an incident that could easily have been resolved by verifying my school ID (that I attempted to show) or calling my school’s administrative office (for which I advocated) which, instead, turned into an agonizing interval during which this officer refused to say a single word to me as I pleaded from the back of his vehicle. I cannot recall how long I was actually detained because it felt like a lifetime, but I will never forget the feeling of that day, marked by hot tears welling in my eyes, an unrelenting lump in my throat, and the unfulfilled optimism that, at some point, this officer would admit to me that he had made a terrible mistake.

I share this story with you because this adolescent experience inevitably colored my relationship with law enforcement, amongst other experiences I went on to observe in my 24-year residency as a New Yorker. This remains true in spite of my reverence towards my grandmother, a retired NYPD officer. My problem is not my belief that you lack similar experiences from which to draw, but rather that your search for data takes no account of this type of experience and makes no attempt to understand the feelings of many that there is a war (represented by institutionally-sanctioned physical and psychological violence) against black bodies in this country. Things turned out fine for me, but tragically, other experiences motivated by a similar distrust in black bodies do not. I am sorry to report that since my having commenced writing this article, my friend of nearly 15 years, a black, male, third year Ph.D. Candidate at Rice University with a B.A. and M.S. in Chemistry, was explicitly racially profiled by the NYPD while wearing a full tuxedo after performing at a classical music gala because he allegedly fit the description for a robbery. As he describes the incident, the police abruptly approached him and his brother in a vehicle as they walked the streets of Harlem and instructed them that they remain stationary. After complying, when my friend asked why he and his brother were being stopped while other pedestrians were allowed to continue walking, he was hostilely approached by an officer who allegedly explained, “[T]he description we got was for a black male. Do those people look black to you?”

After about five minutes, the police received an update over the radio, my friend and his brother were released, and life went on, as it does. My question is whether you are concerned about the targets of racial profiling, like my friend and me, when you galvanize people around “proactive policing,” or whether we are simply necessary and irrelevant collateral damage in your eyes? Do you suggest that we suspend our indignity when we encounter the reality of being presumed guilty before being proven innocent, because by doing so, we keep other black bodies safe? What, then, about our psychological safety? And would you demand the same sacrifice from those whom you love?

Ms. Mac Donald, I challenge you to realign the frame through which you are viewing your research. I do not seek to challenge your data, but in shifting the frame, I necessarily challenge the conclusions of the data you proffer. Your book claims to be “a call for a more honest and informed debate about policing, crime, and race.” But if what you are truly calling for is more honesty, then the data you are analyzing should not be observed in a vacuum.

I agree that proponents of the Black Lives Matter movement must be willing to accept evidence that is potentially unexpected and that undermines the rationale for painting law enforcement everywhere with broad strokes — for example, as you have cited, a recent study by Harvard professor Roland G. Fryer, Jr. covered in the New York Times suggests that, across the board, there may not be evidence of racial bias in cases of police use of lethal force.

However, proponents of the War on Cops narrative, such as yourself, must also be willing to accept the limitations of studies like these — for instance, that the data do not preclude the presence of racial bias in individual cases involving lethal force, and that they do present statistics that should be just as troubling to anyone who cares a lick about black lives. Significant bias is evidenced in police use of force cases outside of deadly shootings. Why should we be any more comfortable with statistics that blacks are 18% more likely to be pushed into a wall, 16% more likely to be put in handcuffs, 19% more likely to have weapons drawn, 18% more likely to be pushed to the ground, 24% more likely to be to have a weapon aimed at them, and 25% more likely to be subdued with pepper spray or a baton?

Your presentation at HLS all too readily suggested that the level of criminality in black communities would easily explain these disparities, but in the data collected surrounding police shootings in 10 cities, “[b]lack and white civilians… were equally likely to have been carrying a weapon.”[3]

Furthermore, if we are truly calling for more honesty, then we should be shifting our frame of analysis. The aforementioned UN Report explains its finding that “[k]illings of unarmed African Americans by the police is only the tip of the iceberg in what is a pervasive racial bias in the justice system.” It goes on to say that “[m]ass incarceration, police violence, housing segregation, disparity in the quality of education, labour market segmentation, political disenfranchisement and environmental degradation continue to have detrimental impacts on people of African descent, despite the application of civil rights laws.”

If we are truly calling for more honesty, then you should have to reconcile your encouragement to “[m]ake no mistake [that] [a]ssertions about systemic, deadly police racism are false,” with damning conclusions by the Department of Justice, such as the March 2015 report on the Ferguson Police Department, which revealed “a pattern of unconstitutional policing,” “police and municipal court practices [that] both reflect and exacerbate existing racial bias, including racial stereotypes,” and evidence that shows “that discriminatory intent is part of the reason for these disparities.” If we are truly calling for more honesty, then you should understand that behind what you nonchalantly describe as a “handful of disturbing videos” are actual human lives. And, if we are truly calling for more honesty, then we must also take into account the opportunity costs of me having to take time away from my legal studies in pursuit of my advanced degree in order to explain these realities to you due to my feeling that it would be a disservice to my dignity — and the dignity of my esteemed peers — if I did not.

To be quite frank, Ms. Mac Donald, your presentation gave me the sense that you feel some discomfort with the notion of black bodies. Please do not take this as a personal attack, because I think that this is an affliction that plagues more Americans than we care to believe. Ultimately, by seeking to reveal “The Myths of Black Lives Matter” and rallying people around your cause as it is currently framed (including advocating, as you did during your talk, to embrace our high levels of incarcerated black bodies), you seem to simply be demonstrating the truth that black lives do not matter to you. I mean this to say that you seem to be far more willing to accept the effects of the “proactive policing” if the burdens fall upon black bodies than you would if they fell upon yourself or upon those whom you love.

I can certainly understand how some features typically associated with black bodies can evoke discomfort. The moving power of black voices; the strength of black physique; the endurance of the soul and the radiance of a spirit borne from black bodies that lived through a hell on earth, yet still steadfastly retain a sense of optimism, altruism, and dignity. Given the perpetual exploitation of black bodies for the fruits of their labor throughout history, I could see how the potency of black bodies might, for some, seem — to use a patently non-legal term — magical. Where the discomfort you and others experience becomes dangerous is captured by actor Jesse Williams in his speech at this year’s BET Awards: “[T]he thing is that just because we’re magic doesn’t mean we’re not real.”

If you could see me as more than an outlier data point of crime in black communities, if you could see me as a real, living, breathing, black body that exists within an extended trope marked by a relationship with law enforcement inexorably rooted in the realities of this country’s troubled history, I have no doubt that your conclusions about “The War on Cops” would be different.

[1] See generally PBS documentary “Race the Power of an Illusion.

[2] See Ava DuVernay’s documentary “13th.”

[3] Additionally, scholars have pointed to other significant limitations of Fryer’s study.

Tyra J. Walker

Tyra J. Walker is a member of theHarvard Law School Class of 2018.

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