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Women and the LawThe newsletter of the ISBA’s Standing Committee on Women and the Law

August 2013, vol. 19, no. 1

Moving on versus moving forward: The legacy of the Trayvon Martin case

The commentary generated by the jury decision in the Trayvon Martin case has been interesting, to say the very least. The comments cover the breadth and depth of opinion, range from the very far left to the very far right. One of the main reasons this case piqued our national attention is that it signaled a change in the social contract for African Americans—that is, the rules regarding what will and will not be allowed by, from and of African-Americans - has changed. The change seems quite alarming when one considers that the social contract for African-Americans is the blue print by which rights are gained under our constitution and in our society. Other minorities, women, and now gay/homosexual/transgendered people use the African-American struggle for equality as the template by which each of these groups can access rights under our constitution for themselves. Further, and interestingly, the same groups opposing the rights of African-Americans are usually (but not always) the same groups opposing the rights of other minorities, women, and now gay/homosexual/and transgendered people. So, a move that affects the social contract of African-Americans presumably affects the others, since it affects the template by which rights are gained under our constitution as well as societal acceptance.

For most African-Americans, the jury decision in the Trayvon Martin case illustrates a growing trend that seems to scale back the advances made. Some African-Americans would categorize this verdict as a tragedy and a stain on the face of democracy. Others would go further, saying that this verdict is not merely a tragedy; it is an amendment of the social contract by which African-Americans live in America. The challenge is that the amendment process is occurring without input from the African-American community and is forced through the muzzle flash of a gun. There have been several iterations of the social contract—the rules—over time. Slavery was the first iteration, and it is still the original template by which the social contract is viewed. Next came the Separate but Equal iteration and then the Civil Rights iteration. Currently, we are in the Affirmative Action iteration. Interestingly, it is the only iteration of the social contract done with the input of African-Americans and not marred by violence. The challenge is that amendments to the social contract are being sought—with no consideration, no notice, and no input from the African-American community.

Usually, the emotion regarding the renegotiation of the social contract turns on the sufficiency of the consideration and the lack of notice. For example Amadou Diallo, the unarmed man killed in a hail of bullets in New York when he reached for his wallet to identify himself to police, didn’t deserve to die. It was common, then, to immediately take out your wallet, get your identification, and give it to the police. Unfortunately for Diallo, the rules changed without notice. After the trial, the analysis, and the commentary, the contractual amendment was clear. It came without notice, consideration, or input from the African-American community and acceptance was under duress. A failure to accept the new term could mean immediate death. So, in the African-American community, people began to show their hands first and wait for the police to either reach for the identification themselves or demand identification from the person at gun point. It changed the way things were done, and few—if any—African-American families fail to instruct their young men on these new rules. It’s wrong, it’s racist, and it’s unfair, but a victim survives to assert a claim. The consideration: African-Americans get to live if the rules are followed. The challenge: While that term had been in previous iterations of the social contract, it was erased from the Affirmative Action iteration of the contract. Further, the amendment was done without notice, consideration, or an opportunity for input by the African-American community.

When an unarmed Rodney King was beaten, it was an amendment to the social contract by which African-Americans live in America. Before that amendment, people regularly mouthed off to the police after being hand-cuffed; it was not necessarily viewed as right or wrong, but its happenstance was common. After Rodney King, the amendment to the contract was clear: African-Americans did not have the right to act in a way that was less than professional. African-Americans no longer had the luxury of acting age-appropriate, color blind, acting commensurate with the community standard, or acting in a subjective way given the objective facts. Though what happened to Rodney King was wrong, in an effort to move forward, African-American families began instructing their children on how to deal with law enforcement while being calm and rational—despite the fact that law enforcement may be unethical, unprofessional, or illegal in their stop/search/seizure. The consideration: African-Americans get to live if those rules are followed. The challenge: While the term had been in previous iterations of the social contract, that term was erased from the Affirmative Action iteration of the contract and was not contained in the Diallo amendment.

When gangster rap and sagging pants represented hip-hop culture, and hip-hop was African-American, racial profiling reached an art form. The community fought back by gathering statistics on the profiling. Statistics, then, brought about information in an effort for change. Nevertheless, that time in our recent history brought about another amendment to the social contract. Even though Tommy Hilfiger made (and continues to make) a fortune on hip hop dress (now known by its inclusive name—urban) and non-African-American teens bought gangster rap at nearly twice the rate of African-American teens, if African-American teens participated or prospered in a culture they created for themselves, they could be profiled. That gave law enforcement the legal right to stop and search that African-American person, even though their non-African-American counterparts did the same thing. So, in an effort to move forward, African-American parents discouraged the same symbolic speech in which the Woodstock generation engaged and enforced new rules regarding dress and music. The challenge: While the term had been in previous iterations of the social contract, that term was erased from the Affirmative Action iteration of the contract and was contained in neither the Diallo nor King amendments.

As lawyers and members of our respective communities, it’s not a stretch to say that we are well versed in the drug amendment to the social contract; specifically the crack amendment and the sentencing disparities. While generally discouraging the use of drugs, African-American families had to add a sentence. It went something like “Don’t do drugs at all--but if you aren’t going to listen, DO NOT deal with crack.” Interestingly, that same amendment has not been available—in any version—when it came to cocaine. It’s difficult to fully articulate the reason a dealer would never see the outside of a prison if they add a legally available, over the counter, unregulated, common household item like baking soda to a street drug, but if they didn’t add it, they could make more money and have a chance at freedom. Even more difficult to explain is the disparity between the approach taken with crystal meth versus crack. Pharmacists are under a daily barrage of new laws aimed at increasing their responsibility for the active ingredient. Further, the acquisition of the active ingredient is now heavily regulated, challenging everyone with allergies and symptom management. However, baking soda continues to be unregulated. The illegal drug issue swept our nation as a whole; but the only Americans disproportionately affected by drug amendment were African-Americans. Unfortunately, that amendment was not a part of any iteration of our social contract nor any amendment thereto.

Now, there’s the Trayvon Martin case. How does that case affect the social contract for African-Americans? Of all the pundits, commentary from the far right and left, legal and armchair analyses, that question remains to be answered. And, while waiting for that answer, I shudder to think what may have happened if Trayvon were Tara—that is, female. Looking at the commentary and the blame placed on Martin, it looks like we’d be asking additional questions if Trayvon were a young female. Why she was out that night? She should’ve waited until her parents could take her to the store or she should have gone without her snacks. She should have walked with a group to ensure her safety. And, then, there’s the judgment, such as why would a young lady even be out that late? What was she doing? She was probably a prostitute/scout for a burglary ring/other. Then, there’s the other side: She wouldn’t have been stopped simply because she was a female; she would’ve been thought as lost, visiting a friend, or just cutting through the neighborhood. I’m unsure if a paternalistic view is better than a criminal view; however, there may have been a clear benefit in that same situation if Trayvon were a young female. And that’s not just unfortunate, it’s a shame.

It would be absolutely wonderful if America would finally engage in the discussion necessary on race, ethnicity, gender, and sexual orientation that is critical to progress in this country. It is disheartening, to say the very least, to see the accountability mechanism for the kind of action in the Martin case--going to court--fail so miserably and inexplicably. That makes it increasingly difficult to encourage those disenfranchised by the Diallo, King, Rap, and Drug amendments that are also affected by the Martin situation to believe in the legal system and to remain peaceful—especially when all four of those amendments and the one situation were achieved by violence. It is hard to explain to those who are left out of the Separate but Equal renegotiation, the Civil Rights renegotiation, and the Affirmative Action renegotiation why the collective force of their hard work, along with their delayed gratification on behalf of the greater good, does not leverage the beneficiaries of that work to the elusive goal of equality—especially equality under the law.

As a nation, we should be thankful of our blessings and proud. But we still have a lot of nation building—the building of this nation—to finish. Its first centuries were written without the participation of many, but the coming years afford the opportunity to enable ethnic and racial minorities, women, and gay/homosexual/and transgendered people the chance to participate. Then, and only then, can we move forward—and not simply move on—in our national existence. ■


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