Suspicion Nation Read online

  Do not decide the case based on “implicit biases.” As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.

  That too is an excellent start, but it fails to explicitly talk about race. If, as in the Zimmerman case, the two primary parties in the case are of different races, race must be discussed explicitly, fearlessly, and inclusively, and the judge is just the person to do it in jury instructions. Building upon Judge Bennett’s instruction, the jury should be told:

  Almost everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. Often these are racial biases, where we assume that one race is more likely to be aggressive, violent, or criminal, for example. These judgments, though common, are often inaccurate and have no place in my courtroom. Though we don’t think we’re prejudiced, many well-meaning people turn out to harbor stereotypical thinking about those of other races. In this case, please consider whether you, like most of us, have those hidden stereotypes, and if so, put them aside here. In this courtroom you are forbidden from making assumptions based upon the skin color of anyone in this case. You must decide this case only upon the evidence before you and ignore the fact that the two men in this case are of different racial backgrounds because skin color tells you nothing about their behavior that night. When in doubt, consider switching the races of the two men in your mind to see whether you’re operating based on subconscious racial judgments.

  Above all else, please insist that this case be decided based on the evidence and not on racial stereotypes.

  Not talking about race has not worked for us, not in doctor’s offices, police stations, nor in courtrooms. Not talking about race allows the fallacy to continue, that there are only two options, perfect colorblindness or overt racism. Yet we know that implicit bias works covertly, affecting our interpretation of ambiguous evidence (Who was threatening whom? Who was the initial aggressor? Whose fears were reasonable?) and that not talking about it allows it to continue to operate, unchecked. “Playing the race card” has acquired such a negative connotation that many good-faith conversations about race are swept up in the charge. But there’s another path, which begins not with finger-pointing (“You’re a racist!”) but with the shared knowledge that we all still have room to evolve.

  In the course of writing this book, I took the Implicit Bias Test204 for myself. I grew up with friends of all races; I’ve demonstrated for racial equality in America and against apartheid in South Africa and in favor of women’s and LGBT rights. As the daughter of an outspoken civil rights lawyer, I became a civil rights lawyer myself, representing many victims of invidious discrimination since 1986. I have spent a lifetime speaking, writing, and advocating against all forms of prejudice. My children are biracial. (Shall I go on with my antiracism credentials? Do you already know where this is going?) I was thus quite confident that I would not be one to harbor any kind of racial bias.

  I cringe writing this, but the result of my test, out of the options “slight,” “moderate,” or “strong,” was moderate racial bias. Certain this was a mistake—surely I was tired? Computer error? Something?—I immediately repeated the test, with the same result.

  Profoundly disturbed, I considered the implications. That we all are truly steeped in a culture with so many negative, stereotypical images of people of color that we cannot avoid harboring racial biases. That this includes me, though I passionately believe that we are all children of God and deserving of fair, egalitarian treatment. That our nation’s loathsome history of enslavement and segregation and violence toward African Americans in particular could only have been justified by a dehumanizing mindset so potent that it still lingers in our collective DNA. Including mine.

  Still disturbed by my findings, I had several friends and family members take the test, and they too mostly tested “moderate” racial bias, including those who were nonwhite. This made me feel worse. It seemed none of us were immune to implicit racial bias. I remembered the fact that many African Americans test positive for implicit racial bias against their own race, something I had now experienced firsthand, the most heartbreaking outcome of all.

  How does anyone contend with implicit racial bias? As the Twelve Steppers say, the first step is admitting you have a problem. Okay, it’s there, in me too, I had to concede. I had to acknowledge the bias existed, as it does in so many of us, in order to confront it honestly. In an effort to override my subconscious prejudices, I brought to the forefront the great love and admiration I have for my dearest girlfriends of color; the kindness of one, the work ethic of another, her humor, her impressive intelligence. On the next retest, the result: no racial bias. (Remember, this is a test that cannot be tricked or cheated, as it measures response times in rapidly associating positive words with each race, then negative.)

  I leave it to the psychologists to explain exactly how this mental process works. But I believe that seeing individuals rather than group members is a substantial part of it. As is simple awareness and a decision not to accept the presence of implicit biases.

  The encouraging news is that reversing implicit biases can be done. And in the case of the criminal justice system—and our society broadly—it must be done. Becoming aware of the prejudices we don’t want to admit even to ourselves is the painful, humbling part of the process, but after that, consciously overriding them is achievable. (And is probably a lifelong endeavor.)

  The fix is thinking and talking about race in settings where racial bias affects outcomes. The research is clear that bringing implicit racial biases to the surface in nonaccusatory, sensitive, constructive conversations can cure them. Because most of us want to be fair—we want that deeply, passionately. We loathe these lingering stereotypes festering in us. White mock jurors, when notified about racial issues in a case, for example, are able to work with and overcome those issues and deliver fairer outcomes.

  As the song “Everyone’s a Little Bit Racist” from the Broadway musical Avenue Q satirized:

  If we all could just admit

  That we are racist a little bit,

  Even though we all know

  That it’s wrong,

  Maybe it would help us

  Get along.

  Sweeping problems under the rug has never worked. Pretending that race isn’t a factor, as at the Zimmerman trial, when it plainly is, only exacerbates the injustice. Any discomfort we experience discovering our own implicit biases and talking about race is nothing compared to the pain of our fellow citizens being harassed, alienated, incarcerated, or even killed based on false assumptions. From our schools to our prisons, in our encounters with strangers on the street, coworkers, and friends, we are long overdue to complete the struggle toward equality and remove the constraints of racial bias once and for all.

  TEN

  One Nation, Overgunned

  YEMEN is A tiny country on the Arabian Peninsula that is one of the poorest, least developed places in the world. The average Yemeni brings home roughly $100 in monthly wages. Corruption has run rampant in its government and security forces for as long as anyone can remember. Tribal conflicts and outright civil war have marked Yemen’s modern history. Slavery was not abolished there until 1962. The country ranks dead last on a list of 135 countri
es in the Global Gender Gap report, as discrimination and violence against women are common there, as are child brides forced into marriage as young as nine years old. Genital mutilation is practiced on girls. Many Yemenis, especially women, are illiterate.205

  In contrast, the United Kingdom is a flourishing, peaceful, egalitarian democracy. We share a common language and culture with the UK (and obsess over their royalty). Most of our law derives from British common law, and millions of Americans (including me) are of British descent. As our closest ally, the British could count on our soldiers to fight alongside them in World War I and World War II, and we relied on their support in our recent wars in Afghanistan and Iraq.

  It’s therefore improbable that we would have more in common with Yemen than we do with England in any sphere of public policy, but in one important area, we do: gun ownership. The United States has more guns per capita than any other country in the world. The only country that comes close—and not all that close—is Yemen, with its frequent strife, separatist insurgencies, and active branch of Al Qaeda. Americans count nearly one firearm for every man, woman, and child (ninety per one hundred residents). Yemen is number two, at fifty-five guns per one hundred people.

  Some Americans have substantially more than one weapon, maintaining stockpiles that would generate alarm in any other developed country. Four months after his acquittal, police searched George Zimmerman’s home after his second accusation of domestic violence in two months. They discovered his entirely legal arsenal: a 12-gauge high-capacity shotgun (the weapon he was accused of pointing at his live-in girlfriend’s face), an AR-15 assault rifle, and three handguns—a Glock 19, an Interarms .380-caliber, and a Taurus 9mm, according to a police warrant.206 He also possessed one hundred rounds of ammunition. Since up to that point, November 2013, none of the three domestic violence accusations made against him in eight years nor his murder trial had resulted in a conviction, Zimmerman was free to arm himself to the teeth, and he did. An Ohio gun advocacy group even sent him a $12,150.37 check207 after his murder trial acquittal to buy more firearms.

  When Zimmerman’s stockpile of weapons and ammunition was revealed, his friend Frank Taaffe appeared on television to defend him. He shrugged off the allegations, as well as any concerns about Zimmerman’s continued gun ownership. “Boys will have their toys,” he said.

  Surely law-abiding gun owners cringed alongside gun control advocates at such a flippant comment. Prior to Zimmerman’s murder trial, some in the gun rights community rallied around George Zimmerman, proclaiming him the poster boy for the right to own, conceal, and carry a gun, and to use it in selfdefense. “If he hadn’t, he’d be dead from that thug Trayvon Martin,” one of them told me on Twitter. But after the trial, as he was twice accused of threatening the women closest to him with his firearms, the voices supporting Zimmerman’s gun rights faded. Why? Because gun rights are one thing; firearms in the hands of an allegedly irresponsible hothead are quite another. While guns remain a contentious issue in America, surely we can all agree that gun owners must behave reasonably with their weapons.

  Our current gun laws are a crazy patchwork of regulations, varying by state, county, and even by town. After the Zimmerman verdict, for example, the city of Sanford banned neighborhood watch volunteers from carrying guns. Everyone else, though, may still wear a concealed weapon, and in Florida, many do. More than 900,000 people are currently licensed to carry a secret gun in the state, and the process to obtain one is “pretty freakin’ easy,” according to a gun store staffer208 there. A gun safety course can consist entirely of an applicant’s walking to the back of the store, shooting a Glock at two targets, then filling out some paperwork. Florida’s “shall issue”209 concealed carry laws, like those in many states, widely authorize untrained citizens to walk around with guns hidden in their clothing. “Shall issue” means that local officials have no discretion. A citizen who wants a concealed weapon permit and who meets the minimal requirements (age, no criminal record) shall be granted one.

  Our country is filled with Zimmermans—citizens with multiple legal firearms. It’s also filled with those who have pointed their gun at another, pulled the trigger, and taken a life. We’re not just number one in possessing guns, we’re at the top of the list for using them for their intended purpose: to kill. If the argument that more guns reduce gun violence were correct, we’d have the fewest firearm homicides on the planet. Instead, America is first in firearm-related deaths in the developed world, according to the United Nations. Our gun murder rate is twenty times the average for all other developed countries. Imagine. Americans are not two or three times more likely—that would be disconcerting enough—but twenty times as likely to die from a bullet than citizens of other Organization for Economic Cooperation and Development (OECD) countries such as Australia or Canada, with whom we share many common values. (The countries with the fewest gun homicides, with numbers so tiny they chart at zero per 100,000, are Japan, South Korea, and Iceland, all of which have strict gun laws.)

  If a foreign power came to the United States and killed eighty-five Americans, we’d declare war on them. But as eighty-five Americans die daily from preventable firearm murders, suicides, and accidents, we collectively shrug at our nation’s own self-inflicted injuries.

  In the UK, where guns must be licensed and are difficult to obtain legally, firearms are used rarely, even in murders: just one of thirteen homicides there is gun related. In the United States, guns are easily available nearly everywhere and are the most popular murder weapon, used in two out of three homicides. As a result, though the UK has triple the crime rate of the United States, it has fewer homicides. The British suffer from their crime rate but don’t die from it. Why? Because guns are by far the quickest, most effective way to kill, and criminals in the UK can’t get their hands on them.

  Consider everyone’s favorite rock-and-roll band, the Beatles. Singer-songwriter John Lennon was attacked by a crazed fan in gun-loving America in 1980. His assailant shot him in front of his Manhattan home with five hollow-point bullets, and Lennon died immediately. Lennon’s former bandmate George Harrison was attacked by a crazed fan in gun-controlled England in 1999. His assailant broke into Harrison’s home, where he stabbed him in the chest with a large knife. Harrison fought him off and survived. This is the life-or-death difference in outcome ordinary Brits and Americans experience daily, as Brits are far more likely to live through even vicious criminal assaults and continue on with their lives. In the United States, human life so often terminates from a moment of anger, from a stray bullet, from a hothead’s or madman’s quick decision to pull a trigger, with irreversible consequences.

  The numbers in America are so high and impersonal they’re difficult to fathom. Though our frequent, appalling mass shootings (do they even still shock us, really?) garner all the media attention, every day in America forty people die from the criminal use of guns, their stories not mentioned in the press at all. Hundreds of our children perish from gun accidents annually, most often at the hands of young boys who could not resist the magnetic temptation to touch, hold, point, and shoot the family firearm, which their parents did not lock away.210

  One of those forty we do know, if only by his name, is Trayvon Martin. Yet notwithstanding all the public discussion of the case, and the widely broadcast and analyzed trial, he is better known as a shooting victim than a flesh-and-blood young man. In the courtroom, the state attorneys failed to humanize him, as we’ve seen, calling him “the victim.” Who was he? Inspired by his uncle Ronald Fulton, a former Navy aviation mechanic who is quadriplegic, Trayvon was fascinated by airplanes and aspired to a future in aviation.211 Trayvon was part of a close-knit family, so close that he fed and cared for his uncle after his car accident and held his playing cards for him at card parties. Trayvon chose to express his connection to family members past and present on his clothing and even on his skin. At the time he was shot, on his hoodie was a pinned-on button bearing a picture of his cousin, Cory Johnson,
who died in 2008 at age thirty-six. Travyon had tattoos of his mother’s name, Sybrina, as well as his grandmother’s and great-grandmother’s names. The rest is known only to his family and friends, as they struggle to hold on to memories of this high school junior who would never go to a senior prom, graduate from high school, go to college, marry, be a father, have a career, or attend family events. As it is for Trayvon, so it is for the forty Americans killed yesterday, today, and tomorrow by preventable firearm homicides. They recede into our history, too often unacknowledged, the details of their lives blurring with the passage of time, remembered by the criminal justice system, if at all, simply as another shooting victim. We can’t possibly take in the hopes and dreams of the lives lost daily, hourly, the grief of their families, the lives that could have been, if only we’d decided to rein in our guns.

  Homicides are one facet of America’s sad gun deaths; the other is gun suicides. The states with the highest rates of gun ownership are also the states with the most suicides, as having a gun in one’s home substantially increases the risk that someone will take his own life in that home. Though other means may be used for suicide, guns are by far the most lethal method. Suicidal acts with guns are fatal 85 percent of the time. Suicide attempts with pills kill in just 2 percent of cases.212 Many people who unsuccessfully attempt suicide go on to lead productive lives.

  And that’s only the deaths. For every person dead from a bullet, four more are injured, most commonly from gunfire to the eyes, face, or abdomen. Nonfatal gunshot wounds often cause severe, lifelong injuries such as major disfigurement and permanent disability.

  After horrific mass shootings in their countries, most other developed nations passed strict gun control, registration or tracking legislation, which for the most part solved the problem of gun violence. Occasionally one hears of a mass shooting in, say, Norway or France, but overall their citizens are at far lower risk of being slaughtered in gunfire than Americans. American children die from shooting incidents eleven times as often as children in other high-income countries. Our rural children are shot as often as our urban children—country kids most often by firearm accidents, city kids from gun homicides. Firearms are one of the leading causes of accidental death for American children and teenagers. Virtually every other developed country has discovered that these deaths are preventable and has passed gun laws to protect their children. We have not.