Some weeks ago in Washington, D.C., one of us, Arjun, saw several black young people tag a building near the White House. As Arjun watched them write on the wall, a police officer quickly approached, presumably to make an arrest. He urged the officer to consider their age, imagine their story, and think about what they had just inscribed in big black letters, “Black Lives Matter.” After a tense back and forth, the police officer left the scene.
Many thousands have been arrested in recent weeks in connection with the Floyd uprisings—some for violating curfew, others for trespassing, vandalism, property destruction, theft, and simple peaceful protest. That night in DC, the officer was pressed to do the right thing, but what about all the protesters the cops did arrest? According to The Washington Post, between May 27 and June 12, more than 14,000 people were arrested during the protests. The true number is likely much higher, as the Post’s study is limited to 48 US cities and draws from police data and media reports, which are often incomplete.
Now, the fate of these protesters is in the hands of prosecutors. If those prosecutors want to be on the right side of history, they must not reinforce the same structures and institutions that the protesters and racial justice movement seeks to dismantle. They should drop the charges.
In many places, it is still unknown how prosecutors will proceed. History does not suggest many reasons to be optimistic, but in some places—Miami, Los Angeles, and New York, for instance—prosecutors are opting to drop some charges, including for curfew-related offenses. At the same time, they are moving forward with charges for property destruction, looting, and other protest-related actions. Federal prosecutors, meanwhile, seem particularly eager to bring such cases; in New York, they have brought a raft of charges against two young minority lawyers, who now face up to life in prison, for allegedly charring the dashboard of an empty and already vandalized police cruiser.
Black activists, scholars, and their allies have been documenting police violence and the criminal justice system’s role in creating a new Jim Crow for quite some time, but calls for racial justice have overwhelmingly gone unheard. A black president didn’t move the needle, nor did the birth of the black billionaire class. Colin Kaepernick tried to awaken us, but was punished, and turned into an example: If you resist the racial hierarchy, you will be cast aside.
This time things feel different. After the senseless extinguishing of the light that was Breonna Taylor, and the videotaped lynchings of Ahmaud Arbery and George Floyd in quick succession, there appears to be a growing and widespread recognition that black lives don’t matter in America. These acts affirmed—yet again—that traditional, legalistic, formal petitions for grievances aren’t working, and it is a crisis. So, people protested, screamed, vandalized, and looted because they had reached a point of fury and righteousness that could no longer be suppressed.
In the final pages of her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander foreshadowed this moment. She wrote that we should not be surprised “when those who have been locked up and locked out finally have the chance to speak and truly be heard, what we hear is rage” and that it “may remind us of riots, uprisings, and buildings aflame.”
That moment is here. Now we must listen to and learn from those who have been robbed of so much.
One only has to look to the uprising against the previous Jim Crow to understand that history will be kinder to those who drop the charges. In 2007, the Tennessee legislature passed the Rosa Parks Act, which offered pardons to civil rights protesters who had to spend the majority of their lives with convictions on their records because of their courage during the civil rights movement. Alabama passed a Rosa Parks Act as well and even displays activists’ arrest records in a museum. This applies to both misdemeanor and felony charges.
The protesters arrested over the last few weeks for charges like failure to disburse, disorderly conduct, and unlawful assembly will also surely have their arrest records posted in a museum one day. Their only crime in the eyes of the world, and in the eyes of history, will be the courage of their convictions and the willingness to risk their own safety for the value of free speech. It was they who reignited this movement—a fire that was lit in Ferguson back in 2014. They might have felt a legitimate fear of protesting given the history of police abuse in this country, to say nothing of recent reports of police brutality against protesters; and, of course, they faced the additional, novel threat of Covid-19 infection. Yet they still came out, night after night. Some even defied curfews and other arbitrary restrictions that were being rolled out across the country. In D.C., they marched past curfew despite the immense militarized presence of both the police and national guard—the latter of which deployed helicopters in the kinds of “show of force” maneuvers commonly used in war zones to scare away insurgents.
An arrest or minor charge can have significant consequences that ripple throughout a person’s life. For one of us, Justin, who was arrested for protesting in Ferguson in 2014, arrest meant the minor, but still significant harm of feeling pressured to plea to a lesser charge in order to avoid the potential loss of an opportunity to be a Fulbright scholar. Much more serious collateral consequences include those that can affect job applications and licensing for professions or even lead to jail time (for those considered to be violators of parole) or deportation (for those who have tenuous citizenship status). These protesters should be celebrated for their courage and forgiven their civil disobedience—not prosecuted.
This is especially true in the case of those who were charged for violating curfew, since a number of those curfews were of questionable legality and may not have survived legal scrutiny. Many of them were hastily issued, imposed with little notice, applied to unreasonably large geographic locations, and instituted with little justification besides the unreasonable fear of black people. In cities such as New York, Los Angeles and Washington, authorities quickly revoked their curfews once challenged by lawsuits.
Charges should also be dropped for those who marked up buildings and other establishments with graffiti and political writing. These weren’t acts of wanton vandalism, as some have suggested. These were forms of political speech, done by people whose voices have gone unheard. As one building on H Street, just a few blocks from the White House, now reads: “Why Do We Have to Keep Telling You Black Lives Matter?” Indeed, the mayor of D.C. famously engaged in her own Black Lives Matter street art, and mayors around the country in places as diverse as Oakland, Charlotte, and Denver have invited people to do the same. How hypocritical is it to prosecute people for engaging in the same act that the leaders of a city mimic only days later?
Those charged with looting should also be considered for amnesty. James Baldwin once said that it was “obscene” to “accus[e] a captive population who has been robbed of everything of looting.” And he explained, when pressed to define what it means when a person smashes in a window and grabs a TV set: “He doesn’t really want the TV set. He’s saying screw you…. He wants to let you know he’s there.” We saw examples of this in D.C.—in a break-in, after which people left with nothing but pans, and in a case in which someone left a broken storefront eating a bag of Skittles. There have been reports like this across the country, where the only objects taken were small trifles or basic necessities, like prescription drugs, groceries, and diapers.
These acts weren’t hedonism. They were acts of protest by people whose ancestors were pillaged and enslaved, and whose wealth and labor are being pillaged right now through corporate bailouts, subprime mortgages, and exploitative wages. They weren’t wanton attempts at destruction, they were forms of repudiation—repudiation of a system that gives police immunity for extrajudicial killings and values property more than their lives. Indeed, there have been times in recent weeks during which more attention has been given to property damage than the lynching of innocent black people.
This is as true of those arrested over the last few weeks as it was of the Ferguson protesters who helped sparked this movement, including Josh Williams, who has languished in jail for five years for stealing a bag of chips and lighting a QuikTrip trash can on fire. Williams is a political prisoner and must be freed immediately.
We should also be cautious in what we characterize as “violence.” Bodily harm committed against individuals by the police is violent. Damaging vacant buildings and other inanimate property is not. In a country that takes pride in the revolutionary acts of the Boston Tea Party, it’s hypocritical to label all of those who damage or loot property in response to brutal police policies and practices as violent protesters who should be charged.
To be sure, some will argue that it will set a bad precedent and damage the rule of law to drop charges against protesters. Others will argue that it will enrage the owners of stores that were looted or whose property was vandalized. However, rather than using the same criminal justice logic that enabled the murder of George Floyd and countless others, we should explore solutions rooted in restorative justice. That would involve listening—truly listening—to the voices of those who engaged in the protests. Across D.C., for example, some businesses and institutions that were vandalized, looted, or even set ablaze have scribbled messages across their now-boarded-up windows celebrating Black Lives Matter and calling for criminal justice reform. Others have sent out tweets supporting the protests. If some of the very entities harmed by these acts don’t favor prosecution, why should the government?
A better response would be a mediated conversation between these businesses and the protesters. Conversations like this could provide some of the honest accounting and truth telling that we as a country have evaded for so long. It could help us learn and grow from this moment and move toward a path of reconciliation.
This is a once-in-a-generation moment, and the reforms we pursue and adopt in the coming weeks will shape race relations and the lives of black people in America for years to come. These reforms must include amnesty for the Floyd and Ferguson uprisers, whose only real crimes are righteous rage and the courage of their convictions, and they must be extended to those who languish in prison for no crime other than being black. It’s their sacrifices that helped us reach this moment.
The time to reform is now.