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In an interview with Sharmini Peries, Naomi Murakawa, the author of The First Civil Right, How Liberals Built Prison America, says Department of Justice’s new guidelines against racial profiling gives a green light to certain forms of profiling

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PERIES: Welcome to The Real News Network. I’m Sharmini Peries, coming to you from Baltimore.

The Obama administration issued guidelines on Monday that restrict the ability of federal law enforcement agencies to do racial, religious, gender, nationality, and sexuality based profiling. With the new protocols, the Justice Department hopes that it could be a model for local police departments as they tackle the nation’s police brutality issues.

Now joining us to discuss the guidelines in our Baltimore studio is Naomi Murakawa. Naomi is associate professor of African American studies at Princeton University. She has recently released her first book The First Civil Right: How Liberals Built Prison America.

Naomi, thank you for joining us.


PERIES: Naomi, so what is your take on the guidelines?

MURAKAWA: I think the story with the guidelines is that they will have very little impact in limiting racial profiling. And they actually give the green light to certain forms of racial profiling.

I think the first thing to note is the timing of the release of these guidelines. So it may appear as if these guidelines are a response to recent outcries of the massacres of unarmed black people. That’s not the case. These guidelines have been in the works for the last five years. It’s an updating of what the Bush administration did in 2003. And it’s important to start there, because then it will come as less of a surprise when I say these guidelines will have no impact on the kinds of brutality and racial profiling that we’ve witnessed in some really acute forms in the last few months.

PERIES: So, Naomi, that sounds fairly dishonest on the part of the administration and the Department of Justice. These are guidelines that has been in the works for a long time. The timing of it in terms of releasing these guidelines, it’s obvious. But it seems disingenuous.

MURAKAWA: Well, look, I think Holder is locating it in the proper moment. I think the important thing to say is whether or not these guidelines would be released yesterday or a month ago or a year from now. The bottom line is that they do nothing to change the letter of the law with regard to racial discrimination. They operate within policing as we know it, within the operation of the Department of Homeland Security as we know it, within ICE as we know it. And without changing any of those structures, they’re just going to have no impact.

PERIES: Is the timing of the release, then, they think, the agencies, as well as the local police departments, will be more receptive, given the outcry that’s been going on in various cities like Ferguson?

MURAKAWA: You know, perhaps. I’m less interested in speculating on the sort of political scheming of Holder. I mean, there may be scheming, there may not be scheming. What I find dangerous is just the content of the guidelines, right? They could come out with the best of intentions. I don’t care. These are still rotten guidelines.

PERIES: Right. These guidelines seems sort of broad and not specifically addressing the real problems we’re facing. Why is that so?

MURAKAWA: Okay. So I think the problem with these guidelines is that they mislocate where racial power actually resides. This happens in two ways. One is at the level of governance. This is the most obvious way. So most policing happens at the local level. These are guidelines just for the federal level. That’s fine. They want them to be a model for what can happen at the local level. Even if it were a model, it would fail as a model for reining in the disaster of mass criminalization that we have for the second reason, which is that these guidelines mislocate where racism is.

PERIES: So let’s unpack that. Where is racism, and how does the guidelines miss?

MURAKAWA: Okay. So I think that when people, when protesters talk about racial profiling, what they are referencing are their grotesque forms of violence that are waged against communities of color. And people will say things like stop racial profiling because–and then they’ll list numbers–because it is so unjust that black women are incarcerated at rates three times higher than that of white women, because it is so unjust that black children born in the 1990s, one in four are likely to have a father incarcerated at some point during their childhood. That’s what people are referencing as racism that they find so violent, so unacceptable.

That’s not the version of racism that the law works within. Right? The law locates racism in the mind of each individual agent. So if you want to look for racism, you would have to find racism within the mind of the individual cop, the individual ICE agent, the individual FBI agent, right? And that’s why the language of this report is all about what an officer might reasonably believe in the totality of circumstances. It dissuades them from using stereotypes or having racial animus. Right?

But that puts–what does that put on trial? Just the brain space of an individual. Right? Just–that’s all. And then what is the job? We can still have all of these devastating outcomes, and yet to prove racial discrimination, we’re supposed to look within the mind of an individual cop who’s now on trial as a criminal. That’s not how we should locate racism.

PERIES: How should we locate racism?

MURAKAWA: We should locate racism as the lived material experience of people. The definition of racism that I most prefer is actually Ruth Wilson Gilmore’s. She’s a geographer at CUNY. And her definition is that racism is the state-sponsored and extralegal reproduction and exploitation of group-differentiated vulnerability to premature death. Group differentiated vulnerability to premature death–I know that’s a mouthful. So you should just say black lives matter. We’re going to locate racism in those things which mark black lives as irrelevant and as expendable. That’s where we should locate it.

What happens with the law is that it is just looking for little ways to say to individual police officers, don’t think a certain way. You can still behave badly, but just don’t think a certain way. Right? And that’s very much in accordance with the letter of the law, the way that it’s been for the last 30 years.

So the standing of equal protection law now is that racial disparity itself does not constitute proof of discrimination. To prove discrimination, you have to find purposeful ill intent on the part of an individual actor.

I can give you an example from the report.

PERIES: Please do.

MURAKAWA: So the report tries to give examples of acceptable and unacceptable ways that you can think about race, gender, gender identity, nationality. So I’m going to read two examples. The first is acceptable, the second is unacceptable. Here’s the first.

“In connection with a new initiative to increase drug arrests, law enforcement officers begin aggressively enforcing speeding, traffic, and other public area laws in a neighborhood predominantly occupied by people of a single race. The choice of neighborhood was not based on the number of 911 calls, number of arrests, or other pertinent reporting data specific to that area, but only on the general assumption that more drug-related crime occurs in that neighborhood because of its racial composition. This effort would be improper because it is based on generalized stereotypes.”

Okay. So that’s not acceptable. The report then goes on and says, here’s an example of something that’s acceptable:

“Law enforcement officers seeking to increase drug arrests use tracking software to plot out where, if anywhere, drug arrests are concentrated in a particular city, and discover that the clear majority of drug ar rests occur in particular precincts that happen to be neighborhoods predominantly occupied by people of a single race. So long as they are not motivated by racial animus, officers can properly decide to enforce all laws aggressively in that area, including less serious quality of life ordinances, as a means of increasing drug-related arrests.”

Okay. Do you hear the difference between those two things?

Tell us. Give us an explanation for the layperson here.

PERIES: If you live in that neighborhood and you’re subject to stop-and-frisks and your brother is taken away on a petty drug charge and people are subjected to pat downs and there are arrests for vagrancy and curfew law violation and everything else, do you think it matters to that person if they say, oh, this comes from the animus of an officer versus the data points suggest that this is the correct place to police? Does that make any difference? Right?

And this is where in the letter of the law it makes a difference, ’cause they’re just looking for animus. They’re looking for bad feelings. They’re looking for bad racist thoughts in individual cops. Right?

What I think people are looking for is a decent quality of life, a life in which they are free from state violence and the means of getting there matters less than the fact that they live in a place that is so surveilled and so violent for them. Right?

PERIES: So this legislation doesn’t quite get at what we need to get at in the police forces and the systemic racism that is applied to communities.

MURAKAWA: Yeah. Sorry. I’m even going to go little bit farther and say this is actually a prescription for the proper way to go about policing Harlem and every other black neighborhood. This is a way of saying, if you can find the data software that compiles the drug arrest statistically a way that makes it okay for you to police in those places–.

PERIES: This is how to get away with this.

MURAKAWA: This is how to get away with it. And I don’t mean to sound that as if I’m looking for the ill intent inside Holder’s mind or anything else. But it is a way of saying this is a fine way to proceed. It’s also, actually, outlining, even if your goal is just drug arrests, that it’s perfectly fine for you to go for all of the petty little quality-of-life offenses that have made New York City such a disastrous place to live for people of color.

PERIES: Right.

Let me get at who this guideline, who these guidelines are directed at. So it’s released by the federal government for the federal agencies.


PERIES: So here it’s leaving itself fairly open to all kinds of racial discrimination at the border points, which is one of the points of contention by those who oppose the guidelines already, some of the critics. Now, what does that mean when people are coming to our borders and coming to the United States?

MURAKAWA: Yeah. So these guidelines actually give the green light for profiling and actually says that security-based profiling, that is, at border points, it’s perfectly acceptable to look at race, to look at ethnicity, to look at skintone, and–and this is really important–to look at nationality. Right? There’s something actually in the footnotes of these guidelines that are really telling. So the title of the report will say that you cannot actually discriminate or you cannot profile on grounds of national origin. But the footnotes are actually very particular in what national origin means. So national origin, as it is delineated here, essentially means your ancestors’ country of birth or an individual’s possession of what are thought to be physical, cultural, linguistic characteristics associated with a certain country. Okay. So that basically means race ethnicity. It says, however, that you are not protected from profiling based on nationality, that is, based on your country of citizenship. It says explicitly, based on your country of citizenship, that may be relevant to the administration and enforcement of certain statutes. It gives the green light on that. Right?

PERIES: So this is sort of legitimizing the neoconservative concerns of national security, national–protecting ourselves from, quote-unquote, Arabs and those who might be coming into the country. This is the preoccupation post-9/11. But some people would say, well, thank God the federal government is doing this. They’re protecting us from potentially harmful nations, particularly in light of the war against ISIS in Syria-Iraq. So some people will say, what’s wrong with that? We want to feel protected.

MURAKAWA: You know, I think if you’re going to participate in these debates about profiling, you have to at least pretend that information matters. Right? We’ve had more than a decade of testing the idea that we can find the bad people based on nationality. Right? We had forced registration after 9/11. It continued through May 2003. There were upwards of 83,000 men forced into special registration, all based on national origin. All countries except North Korea were majority Muslim countries. There were huge deportations based on that registration list. From the 85,000–rough numbers–from the roughly 11,000 deportations from that, what were the charges for any terrorism-related crimes? Were there any? There was not one. Right? There was not one. There was not one. Okay? There was not one. Right?

If we’re going to talk about these grand ways, we have to actually acknowledge what we’ve already done, right? And that’s something that’s just been–it has only been damaged. It has only injured people. It has only been invasive. It’s only ruined people’s lives. It did nothing for security.

PERIES: Naomi, one of your concerns have been the timing of this report.

MURAKAWA: So I find it especially chilling to think that the guidelines that give the green light to profiling on nationality came out the day before what’s now being called the torture report. And the reason I find it so disturbing to put these reports side-by-side is that we are at a moment with the torture report where there is some handwringing going on in D.C., there is some kind of statement that is we shouldn’t have let this happen; there’s a little bit of self-righteousness in the statements of never again, not on our watch. Right?

And then you have this, which says nationality-based profiling is perfectly fine, which means if we had to redo special registration for people from majority Muslim countries, we could do it all over again. Putting these two reports together tells us just how far we have to go to find any form of racialized state violence that’s deemed illegitimate. It is all deemed legitimate, except for these things way out there. We have to produce stories of things like parading men around naked with hoods over their heads and subjecting them to rectal feeding. That’s illegitimate racialized state violence. Everything else is pretty much okay.

PERIES: Naomi, let’s wrap this session up, and we’ll take this question of national security up in our next segment. And I hope you can join us.

MURAKAWA: Thank you.

PERIES: And thank you for joining us on The Real News Network.


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Naomi Murakawa is a professor at Princeton University, where she specializes in American politics with an emphasis on racial and gender politics, public policy, and American political development. The author of numerous journal articles, Murakawa's forthcoming book is entitled, The First Civil Right: Racial Liberalism and the Rise of Prison America (Oxford University Press). The First Civil Right investigates the development of America's racially distinctive punishment expansion. Her teaching interests include American racial formation, feminist politics, and the politics of crime and punishment.

Murakawa received her Ph.D. in Political Science from Yale University in 2005. Her dissertation entitled "Electing to Punish: Congress, Race, and the American Criminal Justice State" was awarded: departmental distinction from Yale University (2005); best dissertation prize from the Law and Society Association (2006); and best dissertation award from the Race, Ethnicity and Politics Section of the American Political Science Association (2006).