Number 583 September 8, 2015

This Week: Structural Racism

"Quote" of the Week: "Prejudice is much less than half the story."
Race and Jury Selection
Understanding Structural Racism



The idea of "structural racism" apparently mystifies a lot of white people. Or, if it doesn't mystify them, it at least confuses them. The intellectual tradition in the United States (yes, we do have an intellectual tradition, like it or not) is so fiercely individualistic that any suggestion that our behavior may be dictated by something other than our own independent desires is considered more or less crazy, if it's considered at all. That's why the mass media, when it reports on racism, tends to focus on specific examples of racist speech or actions that are clearly and consciously targeted at particular groups or individuals. (Even this has typically been under-reported, as the mass audience is hopefully beginning to see, now that Black Lives Matter is forcing some of this news onto the front pages.)

Meanwhile, on the rare occasions where the mass media reports on evidence of structural racism—and its relationship with the conscious individual behaviors that we see in the headlines—it appears as a secondary point, one which is so odd-sounding that many people, especially white people, may miss it. This issue of Nygaard Notes is all about a recent New York Times article that illustrates how this happens.

You may have heard this saying: If you're not a part of the solution, you're part of the problem. Understand structural racism and you'll understand this poorly-understood slogan.



"Quote" of the Week: "Prejudice is much less than half the story."

This week's "Quote" of the Week is an extended excerpt from a recent (July 27) interview with sociologist and anti-racist scholar Joe Feagin. The interview was conducted by philosopher George Yancy and published in a New York Times in a philosophy column called "The Stone." We'll pick it up in the middle, when Feagin is asked about a new way to explain the nature of racism:

Feagin: To understand well the realities of American racism, one must adopt an analytical perspective focused on the what, why and who of the systemic white racism that is central and foundational to this society. Most mainstream social scientists dealing with racism issues have relied heavily on inadequate analytical concepts like prejudice, bias, stereotyping and intolerance. Such concepts are often useful, but were long ago crafted by white social scientists focusing on individual racial and ethnic issues, not on society's systemic racism. To fully understand racism in the United States, one has to go to the centuries-old counter-system tradition of African-American analysts and other analysts of color who have done the most sustained and penetrating analyses of institutional and systemic racism.

Yancy: So, are you suggesting that racial prejudices are only half the story? ...

Feagin: Prejudice is much less than half the story. Because prejudice is only one part of the larger white racial frame that is central to rationalizing and maintaining systemic racism, one can be less racially prejudiced and still operate out of many other aspects of that dominant frame. That white racial frame includes not only racist prejudices and stereotypes of conventional analyses, but also racist ideologies, narratives, images and emotions, as well as individual and group inclinations to discriminate shaped by the other features. Additionally, all whites, no matter what their racial prejudices and other racial framings entail, benefit from many racial privileges routinely granted by this country's major institutions to whites.

Read the whole interview—and others in the series—on the web HERE.


Race and Jury Selection

An important article appeared on the front page of the New York Times of August 17th, under the headline "New Questions on Racial Gap in Filling Juries." The article reported on a study done by an anti-death penalty group called Reprieve Australia. The study focused on Caddo Parish, Louisiana, and the racial makeup of criminal juries there. (A parish is the Louisiana name for what most states call a county.) Reprieve tells us that "While selecting juries in criminal trials, the prosecutor may use a limited number of discretionary 'peremptory challenges' to strike prospective jurors from the panel." In their study, which covered the period from 2003 to 2012 in Caddo Parish, Reprieve studied the "rate at which prosecutors used their challenges to strike jurors" in relationship to "the race of the jurors struck or accepted." What did they find? They found that "Prosecutors chose to strike black prospective jurors at three times the rate of not blacks, a finding which is statistically significant."

Although the Reprieve study focused on peremptory strikes in Caddo Parish, the Times points out that these results are "consistent with patterns researchers found earlier in Alabama, Louisiana and North Carolina, where prosecutors struck black jurors at double or triple the rates of others."

Why is this important? A 2012 Duke University study of felony trials in Florida laid out three related facts: "1. There is a significant gap in conviction rates for black versus white defendants when there are no blacks in the jury pool; 2. The gap in conviction rates for black versus white defendants is eliminated when there is at least one black member of the jury pool; and 3. Conviction rates for white defendants are significantly higher when there is at least one black member of the jury pool (versus all-white jury pools)."

The Caddo Parish study focused on the actual practice of peremptory strikes and how they are used to keep blacks off of juries. The Times did a pretty good job of reporting the basic facts, which are horrifying. As in the Duke study, the Times reports that "Reprieve Australia ... said the likelihood of an acquittal rose with the number of blacks on the jury. No defendants were acquitted when two or fewer of the dozen jurors were black. When there were at least three black jurors, the acquittal rate was 12 percent. With five or more, the rate rose to 19 percent. Defendants in all three groups were overwhelmingly black."

The Times reported that there are, of course, people who think that the practice of peremptory strikes is a good thing. Their reasoning basically goes like this: since prosecutors and defense attorneys both make use of peremptory strikes in pursuit of a jury that will deliver the verdict they want, it all balances out in the end, so not to worry.

Although it wasn't featured, the Times article contained a sort of parallel story-within-the-story that told of the larger societal forces that come into play when juries are being put together. The nature of those forces, and the outcomes they produce, provide an illustration of what is meant by the sometimes-mystifying term "structural racism." We turn to that parallel story now.


Understanding Structural Racism

Structural, or systemic, racism isn't separate from individual racism, but rather takes into account all the ways that racism operates, including policies, practices, ideas, and behaviors that are seen on the individual, institutional, and structural levels. A structural analysis doesn't say that individuals shouldn't be held accountable for racist behaviors. Rather, it says that we must always remember that those behaviors occur in a larger context. And a systems orientation—of which a structural understanding of racism is a part—reminds us that we always have to understand and deal with that larger context if we want real change.

Overt Racism In Plain View

The striking of black people from jury duty, in Louisiana and elsewhere, may or may not be due to overt racism on the part of prosecutors. As the Socialist Worker reminds us in an August 6th article, "It has been historically hard to prove racial bias among prosecutors" because "There is no oversight over their offices and little data is collected on how their decisions are made."

The Australian study reported in the August 17th NY Times makes it clear that prosecutors use their power to strike jurors in ways that tend to protect white defendants and condemn black defendants. The Times makes it clear that this is not the only place this happens. But—and this is what is unusual for the daily press—included in the Times article is a fairly clear indication, if not explanation, as to the nature of the structural racism at work in this aspect of the judicial system. And, in fact, there is information in the article that can help an observant reader to understand how some very large and very powerful systems interact with and reinforce each other. And the fact that each one of the interacting systems works to the advantage of white people at the expense of black people is what allows us to say that structural racism is at work. Let's look more closely.

"Nothing to do with peremptory strikes"

The Times reports that "Caddo Parish is 48 percent black, and 83 percent of the defendants in the new study were black. But the typical 12-member criminal jury had fewer than four blacks on it, the report said." The Times did not mention the relevant fact that 95 percent of elected prosecutors in the country are white. As far as Louisiana, I've been able to document a total of one elected African American prosecutor in that state, and I suspect she is the only one (data is hard to come by).

Now, here's the interesting part. The Times notes that "Much of the gap had nothing to do with peremptory strikes. Of the 8,318 potential jurors in the study, which reviewed 332 trials from 2003 to 2012, only 35 percent were black. Professor [Shari] Diamond [an expert on juries at Northwestern University School of Law], suggested reasons for this. Blacks may be less likely to be on jury lists that are drawn from voter registration records, less likely to appear when called, more likely to qualify for hardship exemptions and more likely to be disqualified for felony convictions."

So, if Professor Diamond's factors are indeed at work in Caddo Parish, then we can see that, in addition to the peremptory strikes themselves, there are other factors in operation that serve to keep blacks from serving on juries. And sure enough, when we look we see that at least three of the factors do seem to be at work. The first one is voter registration. In Louisiana juries are indeed drawn from voter registration records. So what do we know about voter registration in Louisiana?

The liberal news site Think Progress reported last December on "Louisiana's Abysmal Voting Rights Record," saying that "Recently, the NAACP Legal Defense Fund and other national voting rights groups took Gov. Bobby Jindal's administration to court over a statewide practice that prevented many low-income, minority Louisianians from registering to vote." (The case is ongoing; the latest papers were filed just a couple of weeks ago, on August 24th.)

We could also consider a 2006 report from The Leadership Conference on Civil and Human Rights called "VOTING RIGHTS IN LOUISIANA 1982-2006." That report noted that "By any measure, attempts to dilute African-American voting strength in Louisiana have been widespread." And, while crude devices like direct poll taxes, literacy tests, and all-white primaries appear to be things of the past, the pattern of whitening the voter registration process, and thus the jury pool, seems clear. This is one manifestation of the system of structural racism within which the peremptory strikes of jurors occur.

A second factor mentioned by Professor Diamond that may work to make jury pools in Louisiana whiter than they should be is that blacks may be "more likely to qualify for hardship exemptions." Well, is that true here? According to the Kaiser Family Foundation, black people in Louisiana are three and a half times more likely to be poor than are white people (34 percent vs 10 percent). So Professor Diamond's suggestion that black people are more likely to qualify for hardship exemptions is likely valid.

This, again, serves to lighten the complexion of Louisiana jury pools. (And is a part of the more general problem of public service and/or private networking—such as unpaid internships, volunteer work, etc—that are accessible only to those who can afford to do them, skewing the class and race makeup of these important gateways into employment and public service.)

There's another odd thing about Louisiana that makes the overwhelming whiteness of juries even more dangerous: Juries do not have to be unanimous in order to convict people. That's right; as The Atlantic Magazine put it in a 2014 article, "Louisiana allows a defendant to be convicted and sentenced to life in prison without parole based upon a 10-2 vote" of a 12-person jury. The magazine calls this "one of the most obvious and destructive flaws in Louisiana's broken justice system." And they go on to explain that the non-unanimous jury rule "means that prosecutors can comply with their constitutional obligations to permit blacks and other minority citizens to serve as jurors but then effectively nullify the votes of those jurors should they vote to acquit." (Only one other state, Oregon, allows juries to convict on 10-2 or 11-1 margins.)

Finally, Professor Diamond mentions that blacks may be "more likely to be disqualified for felony convictions." And here we come full circle, since white juries are more likely to convict black defendants, thus removing those blacks from future jury pools, which makes convictions of blacks in the future more likely, and so the system plays out.

Systems, Movements, and What to Do

It's quite common to hear white people respond to the Black Lives Matter movement by saying, "But what do you want me to DO??" The key to the answer is to develop our ability to understand structural racism.

When we understand structural racism, we begin to see how the various sub-systems all work together to produce racist outcomes. So, with this understanding we can draw from this New York Times article a number of ideas of "what to do" to advance an anti-racist agenda.

Working to increase oversight over public prosecutors is anti-racist work. Producing and publicizing data as to the race or prosecutorial records of district attorneys in your state is anti-racist work.

How about Professor Diamond's list? Voter registration work, anti-poverty work, working to end the "war on drugs," which unfairly targets people of color—all of these are examples of anti-racist work.

All of these examples would address an aspect of the racism at work in jury composition, but would also have an effect on other racist systems, since they all interact to sustain the overall structure. And since that racist structure, as Joe Feagin says in the "Quote" of the Week, "is central and foundational to this society," our knowledge of and opposition to racism must inform all of our work in the social and political realms.

A structural analysis—and, more broadly, a systems orientation like the one I'm always talking about in these pages—tells us that large and complex systems don't just happen. Instead, their creation and maintenance depend on the efforts, or passive support, of many people in many areas. A structural analysis also tells us that we are all participants in the systems of which we are a part. And this in turn tells us that, for systems to change, we all have to play a part in changing them. When we begin to do this, we call it a Movement. So let's get moving.