Chokehold: Policing Black Men
If you are an African American male, police and prosecutors are waiting for you. Watching and regulating the conduct of black men is a major part of their work. Cops are looking for a reason to arrest you. This will improve their reputation on the force and their precinct’s numbers on Compstat, a management system used by major police departments to track crime. If they make enough stops and arrests, they might make detective. Prosecutors, too, are working to enroll you in the system. When I did that work, I got the most credit for winning convictions, which I obtained mainly by forcing defendants to plead guilty. If the judge sentenced somebody to substantial time in prison, I got high fives all around the office.
Here is a guide to navigating the system. And if you do catch a case, here is advice from a former prosecutor about how to manage the criminal process. And not just any prosecutor, but an African American male prosecutor who has had the same kind of bad interactions with the police as many of my brothers. I’ve been stopped and frisked by cops more times than I can count; I have been thrown against a car by police twice; I have been arrested, and I have been prosecuted myself, for a crime that I did not commit. I beat my case, and if what I did can be of any use to anyone else who has caught a case, I am happy to share it.
How Not to Get Stopped
If the police want to stop you, they can almost always find a reason. Remember, under the “reasonable suspicion” legal standard that allows the police to detain you temporarily, you do not have to be doing anything illegal. So the task is to make the police not want to stop you, to cause them to lose interest in you, to turn yourself into the invisible man.
If you are unfortunate enough to attract the attention of an officer, you must find a way to send the message, without a word, that you are safe. There is a specific way you should, as an African American man, look at a cop. You want, just by your gaze, to communicate respect and deference, but not fear, which is interpreted by the police as a sign that you are guilty of something. You have to demonstrate not only that you are safe but also that you are compliant. This is an actor’s trick. Of course when a cop is trying to decide whether you should be detained, you are afraid. And to preserve your own sense of self-worth, you should not actually feel compliant. What is required, though, is a performance to keep you safe. The gaze is everything. Practice at home or with a friend.
How to Prevent a Stop from Turning into an Arrest
None of the above worked and you have been stopped. There’s still a good chance things will work out; most stops don’t turn into arrests.
The most important thing you need to know is this: a stop is a masculinity contest between you and the police. You must let the cops win. It’s all about machismo, regardless of whether the cops are male or female. They are stopping you to demonstrate their dominance of the street.
Here’s how you pretend like you acquiesce: address the police as “Officer,” “Sir,” and “Ma’am.” Never raise your voice. Don’t make jokes or communicate any kind of irreverence. Do not let the police provoke you—even if they are treating you with contempt. Unless the police start hitting you, do not ask bystanders to record the stop. Don’t object if people are recording, it’s a good thing, and you should do the same thing for another brother or sister. But at this moment, when you are trying not to be arrested, if you yell for someone to start recording, it will make the police angry. This is not a time for civil liberties. This is a time for being dominated by the state, and acting like you like it.
Police lie. It’s perfectly legal. If they have separated you and your friend, and they tell you your friend has implicated you, do not believe them. If they say, “Just admit you broke the law and we will not arrest you,” do not believe them. If they say they know you were acting in self-defense or that somebody just gave you the drugs to hold, do not trust them.
It is best not to assert too many rights. If you are not sure whether you actually are being detained, politely ask, “Officer, am I free to go?” If they say no, don’t ask them what their reasonable suspicion is. Do not, at this point, ask to see an attorney (you don’t have a right to one during a stop anyway). Do not ask if their body camera is on. Don’t ask why they are touching your private parts or going in your pockets. Never tell cops, “You can’t do this.” It sets them off, and under the law of the streets, yes, they can.
If You are Arrested
As far as cooperating with the police to get them to let you go, game over. They are not going to unarrest you. Everything from this point on is adversarial. The cops are officially out to get you. Your job is to give them as little to work with as possible.
This starts with being physically 100 percent submissive. Your tone should remain quiet and respectful, even during the more invasive search of your body and your immediate surroundings that the police are allowed to do once they have arrested you. Don’t threaten to call the chief of police, your city councilperson, the NAACP, or the local news. Hold your hands out for the handcuffs. Bow your head down to get in the squad car.
Being taken into custody for a low-level offense is extremely unpleasant and inconvenient, but odds are, even if you are convicted, you will not go to prison unless you have several other convictions under your belt. And there is still a possibility that the prosecutor will drop the charges after the arrest. But if you catch a charge of resisting arrest, all of that goes out of the window. You might as well start deciding what you are pleading guilty to.
Everybody knows that when you get arrested, the police read you your Miranda rights. But these rights don’t work the way you think. Technically, the police do not have to read you your Miranda warnings. To be precise, if they want to introduce any of your post-arrest statements in a trial, they are required to first give you the Miranda warnings. They usually do. But if they don’t give you the warnings, it’s not like that’s a get-out-of-jail-free card. It just means that they can’t use your statements in court.
In any event, don’t talk. Let me put that more strongly. Shut the fuck up. Don’t admit to anything other than what can be found on your driver’s license. It does not matter if you are innocent. Every time they ask you a question about what happened say, “I invoke my right to a lawyer.”
Public Defenders versus Pay Lawyers
Many people think of public defenders as inferior lawyers. I get a lot of emails and calls from people charged with serious crimes who think their case is going down because the judge appointed a public defender to represent them. They automatically assume a private attorney is better. Sometimes loved ones of people in this situation are willing to do whatever it takes—like mortgaging their house—to retain a pay lawyer. This is often a terrible idea. Public defenders are often the best lawyers you could have.
Some brothers still suffer from the mind-set that it’s better to have a white lawyer, or a Jewish lawyer. The theory is that those attorneys are more connected, or better at coming up with defenses, or that judges and juries will like them better. This is white supremacist hogwash. There is no evidence to support the claim that lawyers of certain ethnicities or faiths get better outcomes for their clients. Of course you want an attorney who will be a good negotiator with the prosecutor and who has a proven track record. It’s just that being white or Jewish is not a good proxy for that skill set.
What to tell your Lawyer
Your lawyer probably will not ask you if you are guilty. She does not need to know, and she does not want to know.
She does not personally have to think you are innocent in order to defend you. What attorneys call “factual guilt” means that you committed the offense you are charged with. A good defense attorney does not much care if this is true. “Legal guilt” means that the prosecution proved beyond a reasonable doubt that you committed the offense. There is often a wide gap between factual guilt and legal guilt, and effective defense attorneys exploit that gap to win your case.
Going to Court: A Style Guide
When I was a prosecutor, we used to laugh at the way some defendants dressed for court. They made our jobs easy because they looked guilty. They wore baggy pants, white T-shirts, gold chains, or some other urban style that you might see teens wearing on the subway. That is not a good look if you are trying to avoid going to jail. Even “casual Friday” outfits like nice jeans or khaki pants and sneakers hurt your case.
When a black man has his fate in the hands of a judge or jury, he needs to wear a suit. The District of Columbia Public Defender Service, one of the best in the country, has a closet of jackets and ties for its clients who don’t own them. At a minimum, male defendants should wear a nice pair of slacks and a button-down shirt. And my public defender friends swear by polished shoes for their clients. Judges and jurors notice things like that.
Should you Snitch?
The prosecution might offer you a deal if you help them make a case against somebody else who they want to lock up more than they want to lock you up. The first thing you need to figure out is, if you accept the offer, are you going to “get got” or is somebody in your family going to “get got.” If cooperating with the government puts you or your loved ones in jeopardy, do not do it. It’s a hard-knock world out there, and the truth is the prosecutor is more interested in winning his case than he is in protecting you. If he cared that much about you, he would not be prosecuting you in the first place. You are in the best position to assess the risks, and if you have any doubt about your safety, turn the offer down.
If you go to Trial
You and your lawyer should make an informed decision based on the risk of conviction if you go to trial, and what the consequences of being found guilty would be. The main consequence is usually more jail time than if you pleaded guilty. Technically, it is unconstitutional to punish people for exercising their right to a jury trial, but this right is meaningless. If the vast majority of defendants did not plead guilty, American criminal justice would grind to a halt. There are far too many criminal cases for all of them to go to trial, which presumably would be the result if there were not a severe penalty attached to losing.
If you decide to go to trial, the next big decision is whether you should take the stand. It’s your call, but listen carefully to your attorney’s advice. If you have serious prior convictions, she will probably advise you to take the Fifth. Even if you don’t, she will be concerned that the prosecutor’s cross-examination will make you look guilty. As a prosecutor, I was really good at this. If the defendant was an African American male, and pretty much all of them were, I would get up in his face, or at least as close to him as the judge would let me, and try to set him off.
If you do take the stand, it’s time for the performance of your life. You should practice your testimony in advance. Ask your attorney to go through the questions she is likely to ask you and the questions the prosecutor will probably ask on cross-examination. If the jury perceives you are lying, they will hold that against you. Borrow a trick that cops use and look at the jury, not your lawyer, when you answer her questions. Don’t use street slang. It’s okay to be nervous, but you have to be calm and polite to everybody, even the prosecutor. During the prosecutor’s cross-examination, you just want to get in and get out. Don’t say any more than asked. If a question can be answered “yes” or “no,” that is the only answer you should give.
You have to make the judge or jury care about you. It helps if your partner, mother, and grandmother are sitting in the front row, as conservatively dressed and well-mannered as possible.
You have positioned yourself so that whether you get convicted depends on how you come across to the twelve people in the jury box, but a “not guilty” verdict is not the only measure of success. All you need is at least one juror to take your side, and then there is a hung jury, which basically means you won. The prosecutor can bring the case again, but unless it’s a serious charge, they usually do not. And if your lawyer pokes enough holes in the government’s case, the jury foreperson might come back with those magic words: “Your Honor, we the jury find the defendant not guilty.” Good luck, brother.
If you Lose
Sorry, my dude. A lot of brothers have been in this situation. At the moment, more than 500,000 to be exact.
Have people show up. Your parents, relatives, and friends. Probably not young children because the judge might feel like you are trying to manipulate her, or that you are a poor parent to expose them to your sentencing. See if you can get former teachers, employers, and faith leaders to write letters. You will probably get to make a statement. As always, practice in advance. Express regret and contrition.
Should You Appeal?
You’re probably going to lose. Your chances of winning on appeal are even less than your chances of winning at the trial level. The prosecution wins almost 90 percent of criminal appeals.
If this reads like a nightmare, it is because that’s exactly what the criminal system is for an African American man. You have no rights that a cop is bound to respect. You do not live in the same country as a white person. That has to change.
Copyright © 2017 by Paul Butler. This excerpt originally appeared in Chokehold, published by The New Press. Reprinted here with permission.